Mbfi Resorts P/L v Commonwealth Bank of Aust No. DCCIV-99-672 Judgment No. D116

[1999] SADC 116

MBFI RESORTS PTY LTD & WIRRINA RESORT PTY LTD

-v-
COMMONWEALTH BANK OF AUSTRALIA & OLIFENT
[1999] SADC 116

Judge Anderson
Civil

1 A brief factual background of this matter is to be found in the ex tempore reasons for judgment of the Honourable the Chief Justice delivered on 15 June 1999 (SASC 258).  For present purposes I am content to adopt that description.
2 The second Defendant was excused from these applications.
3 There are two applications.  That of the Plaintiffs is dated 4 August 1999 and seeks, inter alia, leave to file an amended Statement of Claim.
4 That of the first Defendant is dated 12 August 1999 and seeks, inter alia, that the Plaintiff comply with an earlier R46.20 notice.  Other orders sought are not presently relevant having regard to indications which I gave on 16 August 1999 and 25 August 1999 as to the proposed judicial administration of the file to trial.  That remains a topic upon which I will hear the parties at any convenient time if they, or either of them, so desire.
5 The essences of the present application is whether the Plaintiffs’ proposed amended Statement of Claim complies with the provisions of the Rules as to pleadings and in particular, whether, as proposed, it is "sufficient" for the purpose of Rule 46.04(f) of the District Court Rules.
6 Upon receipt of the Plaintiff’s proposed amended pleading the first Defendant’s solicitor, on 5 August 1999, wrote to the Plaintiffs’ solicitor outlining what they considered objectionable in that document.  That letter remained the basis of the criticism which Mr Howard of counsel for the first Defendant directed at the proposed pleading.
7 Mr Howard submitted that the nature of the pleading in paragraph 6 of the document and particularly paragraph 6.7 thereof, was vague and uncertain.  He submitted that the Plaintiffs should say precisely as to representations relied on and when, and by whom they were made.
8 It is a fault, he said, which also effected paragraph 9.5 because the proposed amended particulars therein also hinged upon paragraph 6.
9 Mr Gray QC of senior counsel who appeared with Mr Rochow for the Plaintiffs submitted that what was pleaded was "sufficient" and that there was nothing filed to indicate any lack of understanding by the first Defendant, of the case it has to meet.  Certainly, the Defence filed by the first Defendant to the filed Statement of Claim does not show any uncertainty in that regard.
10 The essence of what will be "sufficient particulars of the claim" [R46.04(f)] is to be ascertained upon each individual pleading.  There is no unusual rule that each of the particulars sought by the first Defendant is to be given blindly in every case.  As Mr Gray QC correctly pointed out, to do so as by rote where there have been transactions over a long period of time would lead to a pleading of unnecessary length where the Plaintiffs’ case is otherwise quite clear.
11 To my mind that is the position here.  The particulars added to paragraph 6 and to paragraph 9.5 in the proposed pleading indicate the effect of the representations and who made them to whom.  To require more would not further assist the first Defendant without requiring what is said to have passed between the various players which would be pleading evidence which is neither required nor permitted.
12 I note in paragraph 9 there is mention of post discovery particulars.  That should be removed as it has been elsewhere.
13 An order pursuant to paragraph 3 of the Plaintiffs’ application has been made by consent.
14 I intend to leave the application in paragraph 2 to a much later time.
15 I shall hear the parties as to further and better discovery subsequently.  Paragraph 4 is adjourned sine die with liberty to apply.
16 I order that the Plaintiffs have leave to file and serve an amended Statement of Claim in accordance with these reasons within 7 days.  I shall hear counsel as to a further timetable and costs.
17 I see no reason to do other than make no order on the first Defendant’s application.
18 Further consideration is adjourned to 2.15pm on Tuesday, 31 August 1999.