| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MATLOCK PTY LTD -v- A & R INVESTMENTS PTY LTD & ORS [2003] WADC 155 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 23 JUNE 2003 DELIVERED : 21 JULY 2003 FILE NO/S : CIV 3179 of 2002 BETWEEN : MATLOCK PTY LTD Plaintiff
AND
A & R INVESTMENTS PTY LTD
KINGALUP PTY LTD
First Defendant
ANTONIO MARCHESE
Second Defendant
Catchwords: Practice - Practice under the Rules of the Supreme Court - Application to strike part of a pleading - Application for security for costs
Legislation: Fair Trading Act 1987
Real Estate and Business Agents Act 1978
Trade Practices Act 1974
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Result:
Parts of pleading struck
Order for security to be provided Representation:
Counsel:
Plaintiff : Mr I A Morison
First Defendant : Mr J Thompson
Second Defendant : Mr J Thompson
Solicitors:
Plaintiff : Taylor Smart
First Defendant : Chris Martin & Associates
Second Defendant : Chris Martin & Associates
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Biltoft Holdings Pty Ltd v Casselan Pty Ltd (1990) 8 ACLC 579
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130
Coe v Commonwealth of Australia (1979) 24 ALR 118
Daniels & Anor v Anderson & Anor (1995) 37 NSWLR 438
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASC 69
Fyffes Group Ltd & Anor v Templeman & Anor [2000] 2 Lloyd's LR 643
Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Godecke & Anor v Kirwan (1973) 129 CLR 629
Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133
Intercroft Cabinets Pty Ltd v Sampas Pty Ltd (1967) 18 WAR 306
L G Thorne & Co Pty Ltd v Thomas Borthwick & Sons (Australasia) Ltd (1955) 56 SR (NSW) 81
Marks & Anor v GIO Australia Holdings Ltd (1988) 196 CLR 494
Mybury & Anor v Atlantic Union Oil Co Ltd (1953) 89 CLR 507
Pulham v Dare [1982] VR 648
Sellars v Adelaide Petroleum NL & Anor (1994) 179 CLR 332
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1 DEPUTY REGISTRAR HARMAN: The plaintiff's relevant claims are for damages for breach of contract, breach of the Trades Practices Act 1974 and the Fair Trading Act 1987. The application presently before the court is brought by the defendants who seek to strike out all or parts of the plaintiff's pleading and security for their costs.
2 The first attack made by the applicant on the statement of claim is founded upon an alleged inconsistency between the content of pars 7, 8 and 9. 3 Paragraph 9 alleges a contract for services whereby the plaintiff was constituted by the first defendants as their exclusive selling agent for the sale of sub-divided lots. The contract is said to be comprised by parts oral and written. The oral components are identified at par 9 as being the discussions pleaded at par 7 and par 8. The substance of those discussions being that the plaintiff would be granted the sole agency for the sale of lots generated by the process of sub-division and that the remuneration paid to the plaintiff would be commission chargeable in accordance with a statutory scale on the value of each lot sold. The written parts are contained in a document entitled Appointment of Agent. 4 The defendant's attack is founded upon a criticism of the pleading along the lines that each of par 7 and par 8 carry an interpretation such as to constitute each of the conversations pleaded as being separate agreements in themselves. 5 In my opinion there is no inconsistency in the pleading. The plaintiff has simply pleaded the effect of each of the conversations for which it contends and has drawn the effect for which it contends into the terms of the agreement alleged at par 9. It is clear to me that the agreement the subject of the plaintiff's claim in the action is that pleaded at par 9. 6 The allegations pleaded in those paragraphs are not incompatible with the content of the document. 7 The second attack is on pars 11, 12, 16 and 17. 8 At par 11 the plaintiff pleads a term of the contract that the asking price for each of the sub-divided lots would be the subject of discussions between the parties. At par 12, that the appointment of the plaintiff would be for an initial term of six months from the date of issue of the certificates of title for the sub-divided lots. Paragraph 16 pleads that the defendants would give notice to the plaintiff of approval for the sub-
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division being granted, of certificates of title for the sub-divided lots being issued and the sale price of each sub-divided lot. 9 In my opinion each allegation of material fact is a sufficient pleading. 10 Although par 17 of the pleading is nominated by the applicants as the subject of attack I do not recall that the paragraph was mentioned during the hearing. Be that as it may, it simply pleads the issue of titles for the sub-divided lots on a particular day and in my opinion is unremarkable. 11 The third attack is founded upon uncertainty as to the fee in that no definition is given to the value of the land in the document. I accept the plaintiff's analysis that there is sufficient at par 2 of the document to demonstrate that the plaintiff's entitlement would be calculated in accordance with the Real Estate and Business Agents (Remuneration) Notice. 12 The related point is that the agreement pleaded is contrary to s 60 (2)(a)(i) and (iia) the Real Estate and Business Agents Act 1978. Those provisions are as follows:- (2) an appointment to act as agent is not valid unless – (a) it is contained in a document which – (i) clearly sets out the services that are to be rendered; (ii) …; (iia) clearly sets out the method by which the amount of any commission, reward or other valuable consideration to be received for those services is to be calculated; … 13 As to the first of those provisions, the document described as Appointment of Agent at par 1 expresses the services that are to be rendered. In relation to the second, in my opinion the document sets out the method by which the commission on the sale of the lots created by the sub-division would be determined. 14 The next attack relates on the pleading relates to one basis upon which relief is sought. 15 The plaintiff's case is that after the agreement was entered into there was no significant contact between the parties and that breaches of
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implied terms as to performance, led to the loss of opportunity to earn commissions. 16 In my opinion the loss pleaded is consistent with the failure alleged by the plaintiff. 17 The last attack on the pleading relates to the claims under the Trade Practices Act and the Fair Trading Act. Those claims appear to draw upon the proposition that consideration the loss of opportunity would survive in the event that there is no contractual claim. In my opinion if there is no contractual claim then there would be no basis upon which to assert any sufficient relationship so as to justify recovery for such loss. 18 It follows that there is no basis presently pleaded under the legislation, which would allow for damages to be awarded. 19 The plaintiff conceded that the contractual claims at par 25 and par 26 would need to be re-drafted. 20 Accordingly the existing statutory claims and those paragraphs ought to be struck out. 21 As to the claim for security for costs the defendant contends that it has bought sufficient material to justify a determination that there is cogent evidence to give reason to believe that there will be an inability on behalf of the plaintiff to meet any order for the defendant's costs. That evidence is the limited capitalisation of the plaintiff and the fact that the plaintiffs operation is limited to acting as a trustee. 22 The plaintiff contends that such evidence is insufficient to found jurisdiction. 23 I have canvassed the evidence of the defendant in support of the application. The plaintiff has bought no evidence as to its capacity to make payment of any significant sum. I find that the defendant has provided sufficient material to justify a determination that the plaintiff will be unable to meet any order for the defendant's costs of the action. 24 In my opinion the circumstances portrayed by the defendant are the circumstances that the legislature had in mind when it provided discretion to the court to allow for security in appropriate circumstances. 25 In my opinion it is appropriate that I exercise justification to require provision of security to the extent of $15,000 to allow for the case to progress to the point where the pre-trial conference has been concluded.
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26 At this point it is appropriate that the parties reflect upon the adequacy of the security presently proposed. In my opinion having found a basis for exercising jurisdiction favour of the applicant and being prepared to make the allowance that I have foreshadowed, it is for the plaintiff to determine the form of security that it will offer. It is then for the defendant to consider that offer. If the parties cannot resolve the form in which security will be provided then the matter can be re-listed before me so that I can make a determination.
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