McCrackens Water Services Pty Ltd v Philip Peter Ridgeway - [2011] VSC 320

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

LIST B
S CI 2010 3222

McCRACKENS WATER SERVICES PTY LTD (ACN 010 118 895)	Plaintiff
v
PHILIP PETER RIDGEWAY AND ORS (according to the attached schedule of parties)	Defendants
AND BETWEEN:
PHILIP PETER RIDGEWAY AND ORS (according to the attached schedule of parties)	Plaintiffs by Counterclaim
McCRACKENS WATER SERVICES PTY LTD (ACN 010 118 895)	First Defendant by Counterclaim
- and -
TOTAL EDEN MCCRACKENS GROUP PTY LTD (formerly known as TOTAL EDEN HOLDINGS PTY LTD ) (ACN 116 714 802)	Second Defendant by Counterclaim

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2010
DATE OF JUDGMENT:	18 February 2011
CASE MAY BE CITED AS:	McCrackens Water Services Pty Ltd v Philip Peter Ridgeway & ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 320

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PRACTICE AND PROCEDURE ― application to strike out statement of claim, alternatively, requirement that plaintiffs provide further and better particulars ― r 13.02 of the Supreme Court (General Civil Procedure) Rules ― where the pleadings provided sufficient clarity of the case and issues which the Court was required to decide ― application to strike out statement of claim dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Braham SC	Hall & Wilcox Lawyers
For the Defendant	Mr D A Klempfner	Rigby Cooke Lawyers

HIS HONOUR:

The defendants (the Ridgeway parties) make application to strike out paragraphs 15 to 18 inclusive of the plaintiff’s statement of claim dated 10 June 2010. In the alternative, the Ridgeway parties seek further and better particulars of what they describe as the “offending paragraphs”. Counsel for the plaintiff, Mr Braham SC, had prepared his written submissions on the understanding that he would be resisting an application for further particulars. While counsel for the defendants, Mr Klempfner, did not abandon the issue of particulars, it could be said that it was only faintly pressed in oral argument and his written submissions argued the matter as a strike out application. As Mr Klempfner’s written submissions properly contended, it is not the function of particulars to cure pleadings that are susceptible of being struck out for want of material facts.[1]
[1]See defendants’ written submissions dated 22 November 2010, paragraphs 20-21, citing Bruce v Oldhams Press Ltd [1936] 1 KB 697.

Background

The proceeding concerns a sale by the Ridgeway parties to the plaintiff of all their shares in three companies which are collectively described as “Plastic Plumbing Supplies”. The agreement documenting the sale is dated 29 June 2007 and is entitled Plastic Plumbing Supplies Share Acquisition Agreement (“PPSA”).

The purchase price for the shares was to be calculated by reference to the formula defined in clause 1.1 of the PPSA. That calculation in turn required a determination of what is described as the June EBIT. “June EBIT” was defined in clause 1.1 as meaning “the EBIT [earnings before interest and taxation] for the three target companies for the period ending 30 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 320
Decision Date: 18 February 2011

CaseChat Overview and Summary

McCrackens Water Services Pty Ltd sought to recover monies it claimed were owing from Philip Peter Ridgeway. The dispute involved the recovery of costs for water services provided to a property owned by Ridgeway. The matter was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the statement of claim was sufficiently clear and whether it provided adequate particulars as required by rule 13.02 of the Supreme Court (General Civil Procedure) Rules 2005. The respondent argued that the statement of claim was vague and needed more detail, particularly regarding the nature and extent of the services provided and the basis for the claimed debt.

The court found that the statement of claim was clear enough to outline the central issues and provided sufficient detail for the respondent to respond appropriately. The pleadings were deemed adequate under rule 13.02, as they allowed the respondent to understand the nature of the claim and the basis upon which it was made. The court held that the respondent's application to strike out the statement of claim was unsuccessful, and the alternative request for further and better particulars was also dismissed. The court's decision was based on the premise that the statement of claim provided the necessary clarity and detail to proceed with the litigation without further information being required from the plaintiff.

The final orders of the court dismissed the respondent's application to strike out the statement of claim and denied the request for further and better particulars. The proceedings were to continue as filed, with the plaintiff's claim remaining in place for further adjudication.

Orders