McGEACHIE v Clark
[2006] WASC 238
McGEACHIE & ORS -v- CLARK & ORS [2006] WASC 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 238 | |
| Case No: | CIV:1901/2005 | 24 AUGUST 2006 | |
| Coram: | MASTER NEWNES | 31/10/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application to amend refused | ||
| B | |||
| PDF Version |
| Parties: | CATHERINE JOY McGEACHIE RICHARD MITFORD ROWELL GRAHAM SYDNEY BENSTEAD AURELIA MARIA MAZZOLENI LEE FRANCES NASH WESLEY IAN CHARLES NASH JAN IRVINE AMRIT KENDRICK GARY KENDRICK RICHARD CLARK DENNIS BEERE JURGEN WERNER PREUSS GAVAN KELLY SILVER FOX INVESTMENTS PTY LTD (ACN 081 888 048) MIDWAY ASSET PTY LTD (ACN 097 037 557) CHURCHLANDS HOLDINGS PTY LTD (ACN 098 551 645) PETER ANDRE GRANT |
Catchwords: | Practice and procedure Application for leave to amend the statement of claim Whether proposed pleading embarrassing Turns on own facts |
Legislation: | Fair Trading Act 1987 (WA), s 10 Planning and Development Act 2005 (WA), s 136 Town Planning and Development Act 1928 (WA), s 20 Trade Practices Act 1974 (Cth), s 51A, s 51AA |
Case References: | Atkinson v Fitzwalter [1987] 1 WLR 201 Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Biscayne Partners Pty Ltd v Valance Corporation Pty Ltd [2003] NSWSC 874 Dare v Pulham (1982) 148 CLR 658 Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32 O'Brien v Dawson (1942) 66 CLR 18 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 23 Rutherford v Poole [1953] VLR 130 Said v Butt [1920] 3 KB 497 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 197 ALR 153 Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) Aust Torts Reports 81655 Baltic Shipping Co v Dillon (1993) 111 ALR 289 Bednall v Wesley College [2005] WASC 101 Chandler v Water Corporation [2001] WASC 166 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 Douglas v Hello! Ltd (2005) 65 IPR 449 Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 Gould v Vaggelas (1984) 157 CLR 215 Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536 Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All ER (Comm) 271 Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 Muschinski v Dodds (1985) 160 CLR 583 Official Assignee v Dowling [1964] NZLR 578 Rookes v Barnard [1964] AC 1129 Short v City Bank of Sydney (1912) 15 CLR 148 Speedworx Pty Ltd v Bunbury Car Club (Inc) [2005] WASC 16 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- RICHARD MITFORD ROWELL
First Plaintiffs
GRAHAM SYDNEY BENSTEAD
AURELIA MARIA MAZZOLENI
Second Plaintiffs
LEE FRANCES NASH
WESLEY IAN CHARLES NASH
Third Plaintiffs
JAN IRVINE
Fourth Plaintiff
AMRIT KENDRICK
GARY KENDRICK
Fifth Plaintiff
AND
RICHARD CLARK
First Defendant
DENNIS BEERE
Second Defendant
- JURGEN WERNER PREUSS
Third Defendant
GAVAN KELLY
Fourth Defendant
SILVER FOX INVESTMENTS PTY LTD (ACN 081 888 048)
Fifth Defendant
MIDWAY ASSET PTY LTD (ACN 097 037 557)
Sixth Defendant
CHURCHLANDS HOLDINGS PTY LTD (ACN 098 551 645)
Seventh Defendant
PETER ANDRE GRANT
Eighth Defendant
Catchwords:
Practice and procedure - Application for leave to amend the statement of claim - Whether proposed pleading embarrassing - Turns on own facts
Legislation:
Fair Trading Act 1987 (WA), s 10
Planning and Development Act 2005 (WA), s 136
Town Planning and Development Act 1928 (WA), s 20
Trade Practices Act 1974 (Cth), s 51A, s 51AA
Result:
Application to amend refused
(Page 3)
Category: B
Representation:
Counsel:
First Plaintiffs : Mr I A Morison
Second Plaintiffs : Mr I A Morison
Third Plaintiffs : Mr I A Morison
Fourth Plaintiff : Mr I A Morison
Fifth Plaintiff : Mr I A Morison
First Defendant : Ms P E Cahill
Second Defendant : Mr G J Pynt
Third Defendant : Ms P E Cahill
Fourth Defendant : Ms P E Cahill
Fifth Defendant : Ms P E Cahill
Sixth Defendant : Ms P E Cahill
Seventh Defendant : Ms P E Cahill
Eighth Defendant : Ms P E Cahill
Solicitors:
First Plaintiffs : Christopher Garvey
Second Plaintiffs : Christopher Garvey
Third Plaintiffs : Christopher Garvey
Fourth Plaintiff : Christopher Garvey
Fifth Plaintiff : Christopher Garvey
First Defendant : Williams & Co
Second Defendant : Pynt & Partners
Third Defendant : Williams & Co
Fourth Defendant : Williams & Co
Fifth Defendant : Williams & Co
Sixth Defendant : Williams & Co
Seventh Defendant : Williams & Co
Eighth Defendant : Williams & Co
Case(s) referred to in judgment(s):
Atkinson v Fitzwalter [1987] 1 WLR 201
(Page 4)
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Biscayne Partners Pty Ltd v Valance Corporation Pty Ltd [2003] NSWSC 874
Dare v Pulham (1982) 148 CLR 658
Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32
O'Brien v Dawson (1942) 66 CLR 18
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 23
Rutherford v Poole [1953] VLR 130
Said v Butt [1920] 3 KB 497
Case(s) also cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 197 ALR 153
Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) Aust Torts Reports 81655
Baltic Shipping Co v Dillon (1993) 111 ALR 289
Bednall v Wesley College [2005] WASC 101
Chandler v Water Corporation [2001] WASC 166
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383
Douglas v Hello! Ltd (2005) 65 IPR 449
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169
Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490
Gould v Vaggelas (1984) 157 CLR 215
Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536
Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All ER (Comm) 271
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173
McWilliam v Penthouse Publications Ltd [2001] NSWCA 237
Muschinski v Dodds (1985) 160 CLR 583
Official Assignee v Dowling [1964] NZLR 578
Rookes v Barnard [1964] AC 1129
Short v City Bank of Sydney (1912) 15 CLR 148
Speedworx Pty Ltd v Bunbury Car Club (Inc) [2005] WASC 16
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
(Page 5)
1 MASTER NEWNES: This is an application by the plaintiffs to amend the statement of claim in terms of a minute dated 17 July 2006. A previous version of the statement of claim was struck out.
The form of the pleading generally
2 The minute of proposed amended statement of claim extends over 45 pages and 135 paragraphs. The first objection of the defendants is that the pleading is prolix, it contains evidence, irrelevant allegations and narrative, and it fails to identify with sufficient clarity the case the defendants must meet.
3 It is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658 at 664. In my view, taken as a whole, the minute fails to achieve that objective. It is replete with assertions of facts that do not appear to be material to the causes of action intended to be pleaded, with the consequence that it is difficult to discern with any real clarity what acts are in fact relied upon for the various causes of action. It does not, in short, contain a statement in summary form of the material facts as brief as the nature of the case admits: O 20 r 8. It is prolix, vague and confusing, and I would refuse leave to amend on that basis alone.
The specific causes of action relied upon
4 It is, however, appropriate that I deal with a number of specific objections to the causes of action sought to be advanced in the minute as they were canvassed in argument.
5 In the minute the plaintiffs plead that each of them is the registered proprietor of a lot in a strata development known as "Rosneath Farm". It is alleged that the first defendant ("Clark") was the owner of 143 hectares of farming land and bushland in Dunsborough. On 14 March 1996 he entered into a contract (the "development agreement") with Rowell Consulting Services Pty Ltd ("Rowell Consulting") to undertake a project to develop the land in accordance with the principles of permaculture, including by creating on it a strata-titled village. Mr Warwick Rowell is and was a director of Rowell Consulting.
6 It is alleged that, pursuant to the terms of the development agreement, Clark agreed to contribute the land to the project and to maintain it unencumbered, and Rowell Consulting agreed to manage the project and to sell strata lots on behalf of Clark. Clark agreed that
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- 20 per cent of the net proceeds of sale of the strata lots would be used to fund the building of infrastructure for the development.
7 It is pleaded that the eighth defendant ("Grant") is a surveyor who in 1997 surveyed the land and prepared plans for its subdivision into 70 residential strata lots arranged in clusters. In 1997 and 1998, Rowell Consulting and Clark prepared drafts of a management statement for a proposed strata scheme in respect of the land.
8 It is alleged that, in October 1997, Rowell Consulting conducted a course for prospective purchasers in the development which Clark and the second, third and fifth plaintiffs attended. It is pleaded that Rowell Consulting presented and explained to prospective purchasers "the plans and the then current version of the management statement". I should say in passing that it is not apparent what "plans" are referred to or what was contained in the "current version of the management statement".
9 It is alleged that Clark told the attendees at the course that he was passionate about preserving the land and developing it in accordance with the principles of permaculture. He told them that the layout in the survey plans and a draft management statement were brilliant and the layout was conceived by Rowell Consulting, a noted expert in permaculture. He said Rowell Consulting and Mr Warwick Rowell were managing the development. Clark told the attendees that subdividing the land into five acre lots was environmentally insensitive and he was not interested in doing so. His principal concern was the preservation of the land in its natural state in perpetuity.
10 It is alleged that, on 20 November 1998, Clark entered into a deed with the Shire of Busselton by which, in consideration of the Shire approving a strata subdivision of the land and amending its town planning scheme in relation to the land, Clark agreed to "further subdivide" the land so there would exist a total of 70 residential lots. In December 1998, Rowell Consulting issued a final version of the management statement.
11 It is pleaded that, on 18 December 1998, Clark and Grant entered into a contract (the "facilitation agreement") by which Clark agreed to "further subdivide" a large survey-strata lot ("superlot") so that there would exist a total of 70 residential lots of the size and location set out in an annexed plan.
12 Clark subsequently entered into an agreement with the third and fifth plaintiffs in the terms of the facilitation agreement. Shortly afterwards, the third plaintiffs entered into an agreement with Clark to purchase
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- proposed strata lot 5 in the development and the fifth plaintiffs entered into a contract to purchase strata lot 7 in the development.
13 A few days later the strata plan was registered, comprising eight survey strata lots, and given the name "Rosneath Farm". The strata plan was drawn in accordance with the "plan of subdivision" (which is not identified) except that, apart from seven residential lots, the balance was comprised of lot 8, the superlot.
14 In August 1999 Clark entered into a contract with the first plaintiffs in terms of the facilitation agreement and the first plaintiffs agreed to purchase proposed strata lot 18 in the development from Clark.
15 It is alleged that, in September 1999, a plan of strata subdivision of the superlot, lot 8, was registered so that lot 8 was subdivided into several strata lots, including a new superlot, lot 19.
16 It is then pleaded that at a farm course in late 1999 Clark made certain statements to the second plaintiffs. I should say in passing that none of the statements appear to be material to the causes of action pleaded. It is then alleged that in January 2000 Clark entered into an agreement with the second plaintiffs in terms of the facilitation agreement and an agreement for the purchase by the second plaintiffs of strata lot 17 in the development.
17 It is then pleaded that, in early 2000, Clark and his wife made certain statements to the fourth plaintiff at a farm course. Once again, the statements are not clearly related, if related at all, to any cause of action pleaded. In any event, it is alleged that in May 2000 Clark entered into a contract with the fourth plaintiff in terms of the facilitation agreement and the fourth plaintiff entered into an agreement to purchase strata lot 24 in the development from Clark.
18 It is alleged that, in June 2000, the superlot, lot 19, was further subdivided into several strata lots, including a new superlot, lot 25.
19 The plaintiffs then plead that the terms of "the management statement" were that the strata scheme would operate in accordance with the principles of permaculture and that it aimed to provide a mixture of residential, commercial, farming and tourism activities; that no person would be permitted to occupy or obtain an interest in any lot unless they had completed an approved course in permaculture; that the strata company would be the sole agent for the sale or leasing of any lot, and that "the original proprietor" (presumably meaning Clark) would
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- contribute 20 per cent of the net sale price of each lot to the cost of building infrastructure for the development.
20 It is pleaded that it was an express term of each contract of sale that Clark would further develop the land in accordance with the agreed development and would not develop it otherwise, that he would promote the principles of permaculture, and that he would contribute 20 per cent of the net price of the sale of each strata lot to pay for the building of infrastructure.
21 It is further pleaded that each contract of sale included implied terms, among others, that Clark would take all steps necessary to develop the land in accordance with the agreed development, that he would take all steps needed to sell the strata lots upon the same terms as the agreements with the plaintiffs, that he would not take any step which might result in the destruction of the strata plan, or the size or location of the strata lots or the termination of the permaculture theme or loss of any significant part of bushland, that he would keep on foot the development agreement and retain the services of Rowell Consulting unless there was good cause to do otherwise, that he would obey the management statement, that he would not sell the superlot or any interest in it to any person who did not subscribe to the principles of permaculture and agree to the agreed development, and that he would sign on presentation any contract of sale presented by Rowell Consulting which was upon the terms of the written agreements.
22 It is pleaded that Clark entered into a further six contracts for the sale of lots in the development on that basis. Each of those sales was negotiated by Rowell Consulting and signed by Clark upon presentation of them to him by Rowell Consulting.
23 The plaintiffs plead that, in February 2001, Clark informed Rowell Consulting that he intended to build a residence which did not conform to the bylaws contained in the management statement and, in May or October 2001, he informed Rowell Consulting that he would sign no further contracts for the sale of lots in the development.
24 It is alleged that, in August and September 2001, Clark told two purchasers who had signed contracts for the purchase of a strata lot in the development that they should not buy a lot.
25 It is pleaded that on 9 December 2001 Clark revoked a power of attorney authorising Rowell Consulting to seek "a further subdivision of
(Page 9)
- the superlot pursuant to the subdivision plans" and he refused to apply for approvals for such a subdivision.
26 It is then pleaded that, in December 2001 or January 2002, Clark and the second defendant ("Beere") orally agreed that Clark would abandon the agreed development, bring about the termination of the strata scheme, and attempt to subdivide the land into freehold lots and to create freehold lots out of the common property. Alternatively, he would sell his interest in the superlot and the strata scheme to developers to enable them to carry out a commercial development. It is alleged that Beere agreed to act as a lawyer and development consultant to Clark and was to be paid for his services out of the proceeds of sale of green titles or from the sale to developers.
27 There is then pleaded what is described as the "first agreement to injure". It is alleged that, in or around January 2001, Clark, Beere and Grant agreed to act together to injure the plaintiffs by unlawful means so the plaintiffs would relent in their adherence to the agreed development and agree to commercial development. It is pleaded that that agreement is to be inferred "from the acts of Clark, Beere and Grant pleaded in this pleading including Clark repudiating and breaching the sale agreements, Clark and Grant repudiating and seeking to invalidate the management statement, and by Clark, Grant and Beere, harassing, intimidating, distracting, confusing, distressing, frightening and exhausting plaintiffs, and sabotaging the agreed development."
28 It is then, somewhat confusingly, alleged that the agreement was made for the sole or predominant purpose of injuring the plaintiffs, or further or alternatively, to injure the plaintiffs by unlawful means. No particulars are given of those pleas.
29 The plaintiffs plead that the agreement to injure was carried out in the following way. On 15 January 2002 Clark, Beere and Grant "met secretly (from [Rowell Consulting])" with the town planners employed in the development, the chairman of the strata company and certain real estate agents. At the meeting, Beere told the "development planners" that Clark was abandoning the agreed development and wished to redevelop the land by terminating the strata scheme, subdividing the land into freehold lots and creating freehold lots out of common property. Beere instructed the development planners to achieve that objective.
30 In February 2002, Clark told a prospective purchaser that he must negotiate with Beere rather than with Rowell Consulting. At about the
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- same time, Clark refused to sign a contract for the purchase of a lot presented by Rowell Consulting. In April 2002 Clark refused to sign a further contract and told the prospective purchasers that they should not buy at Rosneath Farm.
31 It is pleaded that, in April 2002, at the annual general meeting of the strata company, Clark moved to amend the strata plan to increase the area of the lots and reduce the area of the common property. Beere said at the meeting "If my client does not get what he wants he'll tear the whole thing down", meaning, it is alleged, that if the motion was not passed Clark would bring the development to an end.
32 It is alleged that, in April 2002, Clark informed Rowell Consulting that its rights under the development agreement were suspended. There is then a somewhat enigmatic reference to proceedings in this Court by Clark against Rowell Consulting in July 2002 in which Clark sought a declaration that he was entitled to terminate the development agreement.
33 There are further pleas of instances where it is alleged Clark refused to sign contracts presented by the development manager and in one case it is alleged Beere prepared a contract document for a proposed purchaser which made no provision for the agreed development, but granted Clark a broad discretion as to how the superlot was developed. No contract resulted.
34 It is then alleged that, on 26 November 2003, Clark unlawfully gave notice to Rowell Consulting purporting to terminate the development agreement. How that relates to the 2002 legal proceedings in relation to the termination of the development agreement is not apparent.
35 It is alleged that in early 2004 Clark and Beere proposed to three Dunsborough businessmen that they purchase Clark's interest in the scheme, bring about a termination of the strata scheme, abandon the development and carry out a commercial development on the land.
36 It is alleged that, in late 2004 or early 2005, Clark and Beere proposed to the third defendant ("Preuss") and the fourth defendant ("Kelly") that they purchase Clark's interest in the scheme, bring about a termination of the strata scheme, abandon the agreed development and carry out a commercial development of the land.
37 There is then pleaded a second "agreement to injure". It is alleged that on 20 February 2005 Clark entered into a written agreement with the fifth and sixth defendants to sell to them his interest in portions of the
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- superlot and entered into an agreement with the seventh defendant granting it an option over Clark's remaining interest in the superlot. It is alleged that Preuss and Kelly are directors of one or other of the fifth, sixth and seventh defendants.
38 It is pleaded that Clark knew at the time that it was the intention of the fifth, sixth and seventh defendants not to preserve or complete the agreed development, but to bring about a termination of the strata scheme and effect a commercial development of the land.
39 The plaintiffs then plead that, in or around December 2004, Clark, Beere, Grant, Preuss and Kelly agreed together to injure the plaintiffs by unlawful means so the plaintiffs would relent in their adherence to the agreed development and agree to commercial development. I should say in passing that it is not clear how that agreement is said to relate to the alleged agreement of 20 February 2005.
40 The plaintiffs allege the agreement to injure is to be inferred "from the acts of Clark, Beere, Grant, Kelly and Preuss pleaded in this pleading including Clark repudiating and breaching the sale agreements, Clark and Grant repudiating and seeking to invalidate the management statement, and by Clark, Grant, Beere, Kelly and Preuss harassing, intimidating, distracting, confusing, distressing, frightening, exhausting, bribing, blackmailing, manipulating and deceiving the plaintiffs, dividing the plaintiffs and other proprietors, and sabotaging the agreed development."
41 Although the agreement is said to be one to injure by unlawful means, the plaintiffs then go on to plead that the agreement was made for the sole or predominant purpose of injuring the plaintiffs, and further or alternatively, to injure the plaintiffs by unlawful means. No particulars are given of those pleas.
42 It is pleaded that Clark, Beere, Grant, Kelly and Preuss have acted to carry out the second agreement to injure. There are then particulars which extend over 14 pages of the acts alleged to constitute the carrying out of the second agreement to injure. Those particulars are, to say the least, not easy to follow. They are replete with matters of evidence and a good deal of the material appears unnecessary or irrelevant to the plea.
43 The plaintiffs then plead that Clark breached the contracts of sale. That is to say, in par 116 of the minute some 38 separate paragraphs pleaded earlier in the minute (some of which in turn contain a number of subparagraphs) are referred to and it is simply alleged that "[i]n the
(Page 12)
- premises … Clark breached the contracts of sale pleaded in paragraph 45".
44 It is then pleaded, again simply by reference to a number of earlier paragraphs in the minute, that each of Beere, Grant, Kelly and Preuss interfered with the contractual relations between Clark and the plaintiffs under "the said contracts".
45 It is further pleaded that the agreement with Kelly and Preuss was an agreement for the sale of part of a lot contrary to s 20 of the Town Planning and Development Act 1928 (WA). The Act has in fact been repealed, as counsel for the plaintiffs acknowledged in argument. It should now be a reference to s 136 of the Planning and Development Act 2005 (WA).
46 It is pleaded, again in each case simply by reference to a number of earlier paragraphs of the minute, that each of Clark, Beere, Kelly and Preuss engaged in misleading or deceptive conduct contrary to s 10 of the Fair Trading Act 1987 (WA). In respect of those allegations it is then pleaded "[i]n respect of the conduct in the preceding four paragraphs which are statements of intention or predictions, the plaintiffs say there was no reasonable basis for them." The preceding four paragraphs themselves refer to a large number of paragraphs or subparagraphs in the earlier part of the minute. What are said by the plaintiffs to constitute "statements of intention or predictions" in that mass of material is apparently simply for the defendants to discern as best they can.
47 It is pleaded in a similar way that each of Clark, Beere, Grant, Kelly and Preuss engaged in unconscionable conduct contrary to s 51AA of the Trade Practices Act 1974 (Cth).
48 It is further pleaded that Clark owed the plaintiffs a fiduciary duty to act in good faith towards the plaintiffs in connection with the agreed development and strata scheme and by breaching the contracts of sale, engaging in misleading and deceptive conduct, and engaging in unconscionable conduct, he breached that fiduciary duty.
49 There follows a rolled up claim of loss and damage in respect of all of the causes of action. The particulars of loss and damage of the plaintiffs include "cost of medicine and treatment" and "disappointment and distress".
50 It is also alleged that Clark holds lot 25 "on trust for the plaintiffs and all proprietors" to complete the development "contemplated under the
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- said sale contracts". It is further alleged that the plaintiffs and all proprietors hold an equitable charge over lot 25 for payment of 20 per cent of the net proceeds of sale of each lot sold pursuant to the said sale contracts.
51 The prayer for relief includes a claim for damages, including exemplary damages, and a "permanent injunction restraining the defendants engaging in any act relied upon in this pleading as an act done pursuant to the first agreement to injure or the second agreement to injure or any similar act."
Is the pleading defective?
52 The principles to be applied on an application of this nature are well established. A Court will not grant leave to amend a pleading into a form which is liable to be struck out: Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32 at 38; Atkinson v Fitzwalter [1987] 1 WLR 201 at 214 - 215. A pleading will be struck out where it discloses no arguable cause of action or is an abuse of the process of the Court. It will also be struck out where it is vague, ambiguous or pleaded at too great a level of generality so as to leave the other party in doubt as to how to respond to the pleading: Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 413; Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J. In determining the adequacy of a pleading it is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it.
53 In my view, when regard is had to the specific causes of action sought to be pleaded it is clear that the pleading is embarrassing and would be liable to be struck out. It is replete with irrelevant material, or at least material which does not obviously relate to any of the causes of action pleaded. On the most careful reading, it is not, in my view, capable of providing any clear understanding as to the basis of any of the causes of action pleaded or the facts sought to be relied upon in relation to those pleas. The pleading is prolix and confusing.
54 Against that background, I will deal briefly with the most egregious defects in the pleas of the various causes of action.
55 The plea as to breach by Clark of the contracts of sale is simply far too vague. It does not specify in relation to each contract the respects in which it is said to have been breached but, in relation to the alleged breaches as a whole, simply asserts a tangled web of allegations that
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- Clark's advisors are left to disentangle as best they can. In addition, the claim for damages includes a claim for exemplary damages, although it is clearly established that exemplary damages are not available in a claim for breach of contract.
56 The pleas of the agreements to injure are, in my view, plainly embarrassing. The alleged causes of action appear to be of conspiracy but their exact nature is unclear and confused. Further, it is alleged that the agreement to injure the plaintiffs by unlawful means is to be inferred from "the acts of Clark, Beere and Grant pleaded in this pleading including Clark repudiating and breaching the sale agreements" and to Clark and Grant "repudiating and seeking to invalidate the management statement". The acts concerned are not otherwise identified. It is not for the defendants to sift through the minute to try to ascertain them.
57 It is further alleged that the inference arises by "Clark, Grant and Beere, harassing, intimidating, distracting, confusing, distressing, frightening and exhausting plaintiffs, and sabotaging the agreed development." The specific acts that that plea is intended to describe are neither identified nor identifiable in the minute. With respect to the pleader, this part of the pleading seems to owe more to a thesaurus than to a careful analysis of the facts upon which the claim is to be made.
58 I also accept the defendants' submission that as this plea stands the facts upon which it is alleged the parties had the purpose, or purposes, pleaded do not emerge, or at least do not emerge with sufficient clarity, from the pleading. It is also not apparent what damage the unlawful interference is alleged to have caused.
59 I also accept the submission of counsel for Beere that the plea of interference with contractual relations is not sustainable against Beere if, as appears from the statement of claim, it is alleged that Beere acted simply as the solicitor or agent of Clark within the scope of his authority in allegedly interfering in the contracts between Clark and the plaintiffs.
60 I do not accept the submission of counsel for the plaintiffs that the principle described in cases such as Said v Butt [1920] 3 KB 497, Rutherford v Poole [1953] VLR 130, O'Brien v Dawson (1942) 66 CLR 18, Biscayne Partners Pty Ltd v Valance Corporation Pty Ltd [2003] NSWSC 874 and Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 23 - that a servant or agent acting within the scope of their employment or authority is not liable for the tort of inducing or procuring a breach of contract by their employer or principal -
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- is limited to a master and servant relationship and does not apply to an agent or solicitor acting on behalf of their principal or client. In my view, if it is alleged that Beere was at the material time acting solely as the agent or solicitor of Clark, then in the ordinary course Beere could not be liable for the tort of inducing or procuring a breach by Clark of his contracts with the respective plaintiffs.
61 I accept, too, the submission of counsel for the other defendants that the basis of the claims of unlawful interference with contractual relations against them are unclear and that there are no facts pleaded which are capable of establishing that the plaintiffs have suffered loss and damage as a result of the alleged interference.
62 The claims of misleading and deceptive conduct and unconscionable conduct are so vague as to be embarrassing. The plea of misleading and deceptive conduct does not sufficiently identify the conduct complained of or the respects in which it is alleged that the conduct of each of the defendants was misleading or deceptive. The plea that "[i]n respect of the conduct in the preceding four paragraphs which are statements of intention or predictions, the plaintiffs say there was no reasonable basis for them" is in the most embarrassing terms. It is not for the defendants to sift through a long and confusing pleading in an attempt to ascertain what the plaintiffs assert are statements of intention or predictions contained within it.
63 There is also no allegation that the plaintiffs acted in reliance upon any statement of a defendant which was misleading or deceptive. There is also insufficient in the pleading to establish that the plaintiffs have suffered loss and damage as a result of any conduct of the defendants which was misleading or deceptive.
64 In relation to the plea of unconscionable conduct, I accept the defendants' submission that s 51AA of the Trade Practices Act applies to corporations and not to individuals, and on that basis alone the plea must fail. The plea, in any event, is inadequate in that it fails to identify, or sufficiently identify, material facts which are capable of supporting such a plea. It is also unclear what relief is sought on the basis of alleged unconscionable conduct. The plea is of such generality that it is embarrassing.
65 As I have said, it was conceded by counsel for the plaintiffs that the plea relying on s 20 of the Town Planning and Development Act was untenable as that Act has now been repealed and that it should instead be
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- a reference to s 136 of the Planning and Development Act 2005. But I accept the submission of counsel for the defendants that in any event it is not clear on what basis it is said that the agreement with the fifth, sixth and seventh defendants contravened that provision and it is not evident what, if any, relief is claimed in respect of it.
66 It is also not apparent on what basis it is alleged that Clark holds lot 25 on trust for "the plaintiffs and all proprietors" or on what basis it is alleged that "all proprietors" have an equitable charge over the lot.
67 The confusing form of the pleading makes it impossible to reach any firm view as to whether any of the causes of action alleged are arguably open to the plaintiffs. Before that can properly be considered the pleading must be put in a proper form and, in my view, that will require the pleader to start afresh. Any new pleading must contain only the material facts relied upon and, where required, particulars of the matters alleged, and be as brief as the nature of the case allows. The present minute, as I have said, contains a great deal of irrelevant material, is prolix and confusing.
Conclusion
68 I would refuse leave to amend in terms of the minute of proposed amended statement of claim. I would give leave to the plaintiffs to file a fresh minute within a time to be fixed.
69 I should add that this is not the first attempt to be made at pleading the statement of claim and the time is approaching when the pleading must be put in proper form or the action cannot be allowed to continue. In that connection, it is significant that the plaintiffs have made serious allegations against the defendants. The defendants should not be left in the position where such allegations are simply left hanging over them while the plaintiffs repeatedly attempt to put their statement of claim in an acceptable form.
70 I will hear the parties on the form of orders and on costs.
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