McIntyre v Eastern Prosperity Investments Pte Ltd (No 3)

[2002] FCA 406

FEDERAL COURT OF AUSTRALIA

McIntyre v Eastern Prosperity Investments Pte Ltd (No 3) [2002] FCA 406

PRACTICE AND PROCEDURE - pleading - whether reasonable cause of action disclosed - representative action - applicants not legally represented - claims of misleading or deceptive conduct in relation to shopping centre operations and refurbishment - unconscionable conduct - most representations not falsified in the pleading - no reasonable cause of action disclosed - possible cause of action in implied representation as to financial capacity of shopping centre owner - no complete plea of unconscionable conduct - statement of claim struck out - limited leave to amend allowed
LEGAL ASSISTANCE - practitioner under suspension - leave refused

Trade Practices Act 1974 (Cth)

DONALD COLIN MCINTYRE (FOR AND ON BEHALF OF HIMSELF AND PATRICIA ANN MCINTYRE AND AS A REPRESENTATIVE OF THE GROUP MEMBERS REFERRED TO IN THE APPLICATION) v EASTERN PROSPERITY INVESTMENTS PTE LTD and DBF PROPERTY HOLDINGS PTY LTD AS TRUSTEE FOR THE FREARSON FAMILY TRUST
W243 of 2000

FRENCH J
8 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W243 OF 2000

BETWEEN:

DONALD COLIN MCINTYRE (FOR AND ON BEHALF OF HIMSELF AND PATRICIA ANN MCINTYRE AND AS A REPRESENTATIVE OF THE GROUP MEMBERS REFERRED TO IN THE APPLICATION)
APPLICANT

DONALD COLIN MCINTYRE AND PATRICIA ANN MCINTYRE TRADING AS VICTORIA PARK TRAVELWORLD (SHOP 24)
First Group Member

PAUL STANLEY SCRUTTON AND BEVERLEY MAUREEN SCRUTTON TRADING AS PHOTOMAT VICTORIA PARK (SHOP 20)
Second Group Member

DENNIS BEAUMONT AS TRUSTEE FOR THE BEAUMONT FAMILY TRUST TRADING AS INNERSPIN COMPACT DISCS (SHOP 8)
Third Group Member

KERRY GEORGE AND FREDERICK WILLIAM GEORGE TRADING AS THE HEART COFFEE LOUNGE (SHOP 21)
Fourth Group Member

PHIMCHAI SMITH TRADING AS PHUKET THAI RESTAURANT (SHOP 44)
Fifth Group Member

KENNETH JECKS AND IRENE FUSSELL TRADING AS PLAYFUL PETS (SHOP 31)
Sixth Group Member

ARMIN PODGORNY AND SABINA PODGORNY TRADING AS GOURMET AVIGNON (SHOP 33)
Seventh Group Member

DAVID THAMBIPILLAI TRUSTEE FOR THE NEW DAY TRUST TRADING AS CURRY BOWL INDIAN TAKEAWAY (SHOP 45)
Eighth Group Member

BRENDAN REIDY-CROFT CEASED TRADING AS ZIPPY MULTI SERVICES (SHOP 47)
Ninth Group Member

MILAN SIMIC AND ANNA SIMIC TRADING AS MARTINS SKEWERS (SHOP 10)
Tenth Group Member

ALLAN AND HELEN LAWRENCE CEASED TRADING AS HAVA LOOK DISCOUNTS (SHOP 23)
Eleventh Group Member

KIM LIEN LAM TRADING AS FAIRY PATISSERIE (SHOP 26)
Twelfth Group Member

THIONG AIK GAN AND BEE TIN TAN TRADING AS TEONGBEE MALAYSIAN FOODS (SHOP 42)
Thirteenth Group Member

SHIRLEY JANE FRUDE CEASED TRADING AS AZALEA FLORIST AND GIFT BASKET (SHOP 9)
Fourteenth Group Member

AND:

EASTERN PROSPERITY INVESTMENTS PTE LTD
(ACN 065 747 006)
FIRST RESPONDENT

DBF PROPERTY HOLDINGS PTY LTD (ACN 082 702 103) AS TRUSTEE FOR THE FREARSON FAMILY TRUST
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

8 APRIL 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

A.       On the Second Respondent’s Motion filed 12 March 2002:

1.        The substituted statement of claim be struck out.

2.        The applicants are to pay the second respondent’s costs of the motion.

B.       On the Applicant’s Motion filed 18 February 2002:

1.        The motion is dismissed.

C.       Directions

1.The applicants have leave within twenty eight days to file a further substituted statement of claim limited to a cause of action or causes of action based upon implied representations as to the financial capacity of Eastern Prosperity Investments Pte Ltd.

2.The directions hearing be adjourned to 13 May 2002 at 9am.

3.The question whether the proceedings should be remitted to the Federal Magistrates Service will be considered at the next directions hearing.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W243 OF 2000

BETWEEN:

DONALD COLIN MCINTYRE (FOR AND ON BEHALF OF HIMSELF AND PATRICIA ANN MCINTYRE AND AS A REPRESENTATIVE OF THE GROUP MEMBERS REFERRED TO IN THE APPLICATION)
APPLICANT

DONALD COLIN MCINTYRE AND PATRICIA ANN MCINTYRE TRADING AS VICTORIA PARK TRAVELWORLD (SHOP 24)
First Group Member

PAUL STANLEY SCRUTTON AND BEVERLEY MAUREEN SCRUTTON TRADING AS PHOTOMAT VICTORIA PARK (SHOP 20)
Second Group Member

DENNIS BEAUMONT AS TRUSTEE FOR THE BEAUMONT FAMILY TRUST TRADING AS INNERSPIN COMPACT DISCS (SHOP 8)
Third Group Member

KERRY GEORGE AND FREDERICK WILLIAM GEORGE TRADING AS THE HEART COFFEE LOUNGE (SHOP 21)
Fourth Group Member

PHIMCHAI SMITH TRADING AS PHUKET THAI RESTAURANT (SHOP 44)
Fifth Group Member

KENNETH JECKS AND IRENE FUSSELL TRADING AS PLAYFUL PETS (SHOP 31)
Sixth Group Member

ARMIN PODGORNY AND SABINA PODGORNY TRADING AS GOURMET AVIGNON (SHOP 33)
Seventh Group Member

DAVID THAMBIPILLAI TRUSTEE FOR THE NEW DAY TRUST TRADING AS CURRY BOWL INDIAN TAKEAWAY (SHOP 45)
Eighth Group Member

BRENDAN REIDY-CROFT CEASED TRADING AS ZIPPY MULTI SERVICES (SHOP 47)
Ninth Group Member

MILAN SIMIC AND ANNA SIMIC TRADING AS MARTINS SKEWERS (SHOP 10)
Tenth Group Member

ALLAN AND HELEN LAWRENCE CEASED TRADING AS HAVA LOOK DISCOUNTS (SHOP 23)
Eleventh Group Member

KIM LIEN LAM TRADING AS FAIRY PATISSERIE
(SHOP 26)
Twelfth Group Member

THIONG AIK GAN AND BEE TIN TAN TRADING AS TEONGBEE MALAYSIAN FOODS (SHOP 42)
Thirteenth Group Member

SHIRLEY JANE FRUDE CEASED TRADING AS AZALEA FLORIST AND GIFT BASKET (SHOP 9)
Fourteenth Group Member

AND:

EASTERN PROSPERITY INVESTMENTS PTE LTD
(ACN 065 747 006)
FIRST RESPONDENT

DBF PROPERTY HOLDINGS PTY LTD (ACN 082 702 103) AS TRUSTEE FOR THE FREARSON FAMILY TRUST
SECOND RESPONDENT

JUDGE:	FRENCH J
DATE:	8 APRIL 2002
PLACE:	PERTH

REASONS FOR DECISION ON MOTION TO STRIKE OUT AND MOTION FOR APPOINTMENT OF McKENZIE FRIEND

Introduction

1. These proceedings were commenced on 22 December 2000 by Donald Colin McIntyre on behalf of himself and Patricia Ann McIntyre and as representative of other persons, all of whom are or have been tenants of the Heart of the Park Shopping Centre (the Group Members).  The proceedings are brought against Eastern Prosperity Investments Pte Ltd, the owner of the Centre, and the Centre Manager, DBF Property Holdings Pty Ltd, as Trustee of the Frearson Family Trust. 

2. Mr and Mrs McIntyre are representing themselves and for that reason have had difficulty in adequately formulating their claims.  On 6 December 2001, I made orders striking out their statement of claim as against both respondents and gave leave to them to file and serve a substituted statement of claim on or before 31 January 2002.  In the event, the substituted statement of claim was filed on 18 February 2002 pursuant to leave given at a directions hearing on that day.  The respondents were required to file and serve any motions to strike out the substituted statement of claim by 11 March 2002.  The motions were to be returnable on 18 March. 

3. In the meantime, a receiver and manager was appointed to Eastern Prosperity on 22 January 2002 by Perpetual Trustees (Victoria) Ltd and Service Finance Corporation Ltd, the holders of securities over assets of the company.  On 12 March 2002, a strike out motion was filed by DBF only and argument on that motion was heard on 18 March.  Argument was also heard at that time on an adjourned motion by Mr McIntyre seeking the leave of the Court to be represented by a legal practitioner, presently under suspension, in these proceedings or to be assisted by that person as a McKenzie Friend.

   The Substituted Statement of Claim

4. Paragraphs 1 to 4 of the substituted statement of claim identify Eastern Prosperity and its registered offices from time to time.  Paragraphs 5 and 6 allege that it was deregistered by the Australian Securities and Investments Commission on 28 February 2001 for failing to file annual accounts and that it was purportedly re-registered under the same name on 29 August 2001.   Paragraphs 6 and 7 do not appear to have any legitimate place in the pleadings.

5. Paragraphs 7 and 8 identify the directors of Eastern Prosperity, Johnny Ang and his father Ang Snr, and companies operating in Australia of which they were directors.  Eastern Prosperity’s Singaporean holding company is identified (par 9).  Its ownership and the price it paid for the shopping centre is pleaded (pars 10, 11 and 12) together with the purchase of some additional contiguous land (par 13). 

6. The shopping centre is said to have thrived for the first two years of its operation with nearly full occupancy and a good retail tenant mix with Woolworths as key anchor tenant (par 14).  The shopping centre is said to be uniquely situated to take advantage of the substantial change in the character of Victoria Park, the suburb in which it is located (par 15).   Planning restrictions in the area meant it was unlikely that any other shopping centre could be constructed nearby (par 16).

7. It is alleged that Eastern Prosperity failed to apply sufficient moneys towards the maintenance and upkeep of the shopping centre and that numerous problems occurred as a result (par 17).  Several tenants are said to have departed and not to have been replaced (par 18).  Woolworths elected to renew its lease for five years only, instead of the ten years to which it was entitled (par 21).  This election was on condition that Eastern Prosperity would undertake significant repairs and refurbishment of the centre (pars 20 and 21).   Woolworths was prepared, upon the proposed refurbishment taking place, to expend significant funds of its own on the improvement of the Woolworths’ store (par 22). 

8. A tenant action group called the “Heart of the Park Tenant Action Group” was formed “as a result of deteriorating conditions at the shopping centre” (par 23).  The Group obtained the assistance of the WA Retailers’ Association as a result of which Eastern Prosperity and its then managing agents, Druitt First National Real Estate, began discussions with the Association (pars 24 and 25).  Eastern Prosperity was represented by one David Tian (par 26).   Issues arising at the shopping centre were referred for mediation under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (par 28). Tian is said to have made representations in letters sent to all lessees of the shopping centre on or about 15 June 1998. These were to the general effect that, subject to confirmation of finance, the refurbishment of the centre and car park extension were anticipated to commence in or during January 1999 (par 29). In the course of the mediation further representations were made by solicitors representing Eastern Prosperity to like effect (par 30).

9. The Tian representations are said to have been misleading or deceptive or likely to mislead or deceive (par 66).   The particulars of their falsity allege commencement of the preliminary demolition works in January 1999 with no refurbishment of the centre following or having taken place as at February 2002.  In particular, it is said that:

   “The financial position of the First Respondent and the related Ang Corporate Entities was such that it was unlikely that the First Respondent would ever be in a financial position to effect the refurbishment.”

   It is then said that the Tian representations were made by him to induce the Group Members to refrain from taking any further action against Eastern Prosperity and to continue to trade at the centre (par 67).  As a result of the representations it is alleged that the Group Members continued to trade at the shopping centre and thereby suffered ongoing trading losses, including payment of rent and outgoings, when in fact there was no rental value attached to the right of occupation of the leased premises (par 69).  At all material times Tian and/or Eastern Prosperity knew or ought to have known that Eastern Prosperity was not in a financial position to effect the refurbishments of the shopping centre (par 71).  Particulars of the knowledge are set out.

10. A similar structure is adopted for the pleading of the case of misleading or deceptive conduct against DBF.  DBF replaced Druitt First National as the shopping centre managing agents on 1 September 1998 (par 32).   The company is identified together with its registered office, its business as a licensed real estate agent and its trading name which, since 7 May 2000, has been Frearson & Partners Estate Agents (par 33-36).   DBF was engaged as manager of the shopping centre from 1 September 1998 to 31 August 2000 when it was replaced by Mair & Co (par 37).  It is irrelevantly asserted that DBF ceased to carry on business as a real estate agent in 2001 (par 38).

11. Jodi Costello is said to have been engaged by DBF with specific responsibility for the day to day management of the centre and to have been authorised to act on behalf of and to bind Eastern Prosperity (pars 39 and 40).  She operated from the Centre Manager’s Office in the shopping centre (par 41) and also attended to the day to day management of the Wanneroo and Subiaco Markets (par 42).

12. Ms Costello is said to have made representations to the Group Members on numerous occasions since 1 September 1998, both orally and in writing, that the refurbishment of the shopping centre was imminent (par 43).  The occasions of these representations are specified (par 44) and their terms on each occasion are pleaded (pars 45 to 65).   Some of the representations alleged relate to communications with particular Group Members.

13. As with the Tian representations it is said that, as a result of Costello’s representations, the Group Members continued to trade at the centre and suffered ongoing trading losses (par 69).  They lost various opportunities enumerated as the opportunity to take legal action to enforce their legal rights against Eastern Prosperity, the opportunity to cease trading and to pursue alternative commercial opportunities, the opportunity of protecting their health and relationships from stress and the opportunity of securing alternative employment (par 70).  Ms Costello, it is said, well knew or ought to have known that Eastern Prosperity was not in a financial position to effect the proposed refurbishment of the centre (par 72).  Particulars of her knowledge are given at considerable length.  The conduct of DBF (presumably derived from Ms Costello’s conduct) is said to have been misleading or deceptive or likely to mislead or deceive (par 73).  To this point the allegation relating to representations attributed to Ms Costello and thereby to DBF appear to treat them as directed to all of the Group Members. 

14. It is alleged that both Eastern Prosperity and DBF engaged in unconscionable conduct contrary to s 51AA of the Trade Practices Act 1974 (Cth). The substituted statement of claim asserts that the First to Fourteenth Group Members were in a position of special disadvantage compared with Eastern Prosperity and DBF (par 74). Paragraph 75 does not make grammatical sense. Paragraph 76 asserts that DBF ought to have known of the tenants’ special disadvantage. The unconscionable conduct pleading at this point ends in midstream.

15. What follows is a number of paragraphs relating to each of the separate tenants identified sequentially.  In respect of the McIntyres, who are the First Group Members (par 77), their leasehold arrangements at the centre are pleaded (par 78) and the nature of their business as a franchised travel agency (par 79).  They commenced trading on or about 2 November 1998 and have traded continually since that time (pars 79-81).   The pleading then sets out various representations said to have been made to the McIntyres.  Reference is made first to representations made to them by Ms Costello, earlier pleaded in pars 47 and 48 of the statement of claim. The McIntyres are then said to have been induced by these representations to become tenants of the shopping centre and to purchase the existing business from its previous owners (par 83).  At that time the McIntyres’ business employed three staff members but by May 2000 its financial position had deteriorated so that it could no longer afford to employ anybody (par 84).  Then it is alleged that despite ongoing losses the McIntyres and several other Group Members who are identified have elected to continue trading and in doing so await the inevitable refurbishment of the shopping centre by the existing owners or a new owner and the potential restoration of the goodwill that formerly existed (par 85). 

16. At the time of the expiry of the assigned lease, the McIntyres approached Ms Costello to exercise their two year option under the original lease (par 86).  They say that they were informed it was unnecessary to exercise the option as they would be relocated to a new tenancy within the shopping centre within the next three months and that a new standardised lease would be provided to all tenants at the cost of Eastern Prosperity (par 87).  The existing lease would continue on its existing terms and conditions until a replacement standardised lease was in place (par 88).  On this basis the McIntyres say they elected to continue to trade in anticipation of the representations being fulfilled (par 89).  There are then set out further representations said to have been made by Ms Costello.  These are those set out in earlier paragraphs (54 to 65) dealing with correspondence which DBF, through Ms Costello, sent to the Group Members on 12 January 1999, 26 March 1999, 8 June 1999, 27 August 1999, 9 November 1999, 20 January 2000 and 18 February 2000.  It also picks up oral representations said to have been made in October 1999 (pars 58 and 59) and in January 2000 (pars 62 and 63).  These are said to have been false, albeit only in particulars, on the basis that Eastern Prosperity failed, refused and neglected to attend to the completion of the refurbishment and alterations to the shopping centre (par 90). 

17. The conduct in making the representations is said to be misleading or deceptive contrary to s 52 of the Trade Practices Act and unconscionable contrary to ss 51AA and 51AC (par 91). The written representations and oral representations are said to have been misleading and deceptive (par 92). Particulars of this allegation are set out based on the failure of Eastern Prosperity to attend to the completion of the refurbishment and the alterations to the shopping centre. Moreover it is said that Eastern Prosperity and DBF by permitting the commencement of refurbishment and alterations, which refurbishment and alterations have been subsequently suspended, have caused further disruption to trading conditions at the centre which are continuing to further deteriorate. In addition, it is said the conduct is unconscionable and that the McIntyres have suffered loss and damage through agreeing to purchase the business from the previous owners and continuing to trade in the expectation that the representations made by Ms Costello would be honoured (par 93). Further particulars are given of par 93 under the heading “PARTICULARS OF LOSS AND DAMAGE”. These are expressed in general terms relating to the inducement of the McIntyres to purchase the business, the fact that they suffered ongoing trading losses, their claimed loss of interest on capital and loss of opportunities to purchase or establish other travel agencies. Loss of wages and salary which could have been earned in alternative employment and alternatively loss of profits and goodwill are also asserted. There is a further contention, which seems to have no reference to any representation, that they suffered loss and damage to their business through the tenancy being flooded on four occasions with raw sewerage. General damages for stress and inconvenience are asserted.

18. A similar structure of pleading is set up in relation to each of the subsequent Group Members:

    .          the Second Group Member (pars 94 to 109)
    .          the Third Group Member (pars 110 to 124)
    .          the Fourth Group Member (pars 125 to 140)
    .          the Fifth Group Member (pars 141 to 155)
    .          the Sixth Group Member (pars 156 to 175)
    .          the Seventh Group Member (pars 176 to 199)
    .          the Eighth Group Member (pars 200 to 213)
    .          the Ninth Group Member (pars 214 to 228)
    .          the Tenth Group Member (pars 229 to 244)
    .          the Eleventh Group Member (pars 245 to 265)
    .          the Twelfth Group Member (pars 266 to 283)
    .          the Thirteenth Group Member (pars 284 to 295)
    .          the Fourteenth Group Member (pars 296 to 309).

    The Attack on the Substituted Statement of Claim

1. DBF seeks to have the substituted statement of claim struck out in its entirety and, alternatively, to have certain paragraphs struck out on the grounds that it:

   “(a)     discloses no reasonable cause of action; and/or

   (b)has a tendency to cause prejudice, embarrassment or delay in the proceeding.”

2. The defects said to exist in the substituted statement of claim are summarised by counsel for DBF as follows:

   “(a)lack of a clear case in respect of pleas of misrepresentation, ‘falsity’ and lack of reasonable grounds;

   (b)the continuation of general complaints about the maintenance of the shopping centre or conduct towards tenants, that appear to be free-floating and not connected to the claim for relief in any clear way;

   (c)lack of connection between the conduct complained of and the damage claimed in numerous instances;

   (d)vague assertions and lack of particulars in numerous respects;

   (e)inconsistencies;

   (f)the case being not open in law in the following respects: section 51AA, section 51AC, and expectation loss.”

3. A contrast is drawn between the umbrella misrepresentations pleaded in par 43 alleging that Ms Costello made various representations on numerous occasions to Group Members about refurbishment of the shopping centre on the one hand, and the specific versions pleaded in pars 44 to 65 on the other.  It is said not to be clear whether one or both versions represents the applicants’ case.  In my opinion there is no real difficulty on this score.  The specific representations pleaded are intended to be the applicants’ case.  Then it is said that the particulars of falsity in par 66 do not correspond to either the umbrella representations or the specific representations pleaded.  I agree.  The specific representations are not falsified.  There are said to have been implied representations, but these are not identified (eg par 46, particular C).  Mere failure to carry out promised works does not falsify the express representation that they will be carried out, nor make such representation misleading or deceptive or likely to mislead or deceive.  The same problem arises in relation to the various pleas of misleading or deceptive conduct in relation to each of the Group Members.

4. The unfortunate fact is that the major part of the substituted statement of claim, concerned with misleading or deceptive conduct, is a confused mess.  It does not disclose a cause of action because it does not adequately disclose how the representations alleged to have been made were misleading or deceptive or likely to mislead or deceive.  There is a mass of representations which are not addressed in terms of their accuracy or otherwise.  The only possible case which might be extracted from the pleadings could be based upon an implied representation that Eastern Prosperity had the financial capacity to carry out the promised works.  The falsity of such a representation is asserted without the representation itself being pleaded.  It should be noted that any case against DBF based on its knowledge of its client’s financial capacity at the time various representations as to the undertaking of works were carried out, would have to be the subject of careful particularisation and proof.  The particulars of knowledge on the part of Ms Costello, set out in par 72, seem to operate at various dates and to require a somewhat improbable insight into the financial affairs of Eastern Prosperity, an insight which would not normally be attributed to an agent engaged to represent that company in operating one of its shopping centres.  That is not to say that the improbability or otherwise of such particulars is a basis for striking them out.   They are however in parts of a rather generic character and are themselves assertions of knowledge of particular matters.

5. The plea of misleading or deceptive conduct does not disclose a reasonable cause of action as presently set up.  If it is intended to plead that there were representations implied on the part of DBF that Eastern Prosperity had the financial capacity to carry out the relevant works, then that could arguably support a complaint of misleading or deceptive conduct. If the claim were rephrased and the multitude of representations not falsified were deleted, then it might be that a viable cause of action could be disclosed.

6. Counsel for DBF goes on to attack the introduction in the substituted statement of claim of what are called “Extraneous complaints”.  It is pointed out that in par 92 under the heading “PARTICULARS OF MISLEADING AND DECEPTIVE CONDUCT” complaint is made of the commencement of the refurbishment.  This submission has weight.  Paragraph 92 asserts that the written representations and oral representations directed to the First Group Member, the McIntyres, were misleading and deceptive.  Particular B says:

   “The First and Second Respondents by permitting the commencement of the refurbishment and alterations to the shopping centre, which refurbishment and alterations have been suspended in there entirety (sic), has caused further disruption to trading conditions at the shopping centre which are continuing to further deteriorate.”

   This claim is not based on reliance upon any alleged misleading or deceptive conduct.  Similar paragraphs in relation to other Group Members suffer from the same defect.  In addition, the pleading contained in pars 253 to 256 relating to the exercise of an option by the Eleventh Group Member appears to be entirely disconnected from any other claims and does not support any of the relief claimed in the substituted statement of claim, which is by way of damages and other orders under the provisions of the Trade Practices Act.

7. The representations asserted in pars 45-46, 49 and 54-65 are pleaded in relation to each of the Group Members.  But pars 58, 59, 62 and 63 relate to oral representations made to McIntyre only.  It is not alleged that the other Group Members knew of these representations.  In respect of the Group Members other than McIntyre therefore, these pleas, in so far as they are incorporated by reference in the pleadings relating to the other Group Members, disclose no cause of action.

8. Complaint is also made about vagueness and lack of specific particulars throughout the statement of claim.  This is particularly acute in relation to the allegation that Ms Costello knew or ought to have known that Eastern Prosperity was not in a financial position to effect the promised refurbishment.  As I have already indicated, the particulars do not really assist the respondents to know the case they have to meet in connection with this part of the substituted statement of claim.  It is correct to say, as counsel for DBF submits, that it would be oppressive and unhelpful to DBF to be required to prepare requests for particulars with hundreds of questions to obtain the specifics necessary to understand and to meet the applicants’ case.  In any event, particulars do not cure a defective statement of claim. 

9. So far as the claims of unconscionable conduct are concerned, in my opinion, no coherent or complete case of unconscionable conduct is made out on the pleadings.  There seems to be a reliance upon the written and oral representations as themselves constituting unconscionable conduct and a broadly based assertion of special disadvantage.  In my opinion, however, such a pleading without more does not disclose a cause of action. 

   Conclusion

10. In my opinion and for the preceding reasons the statement of claim as a whole is still fatally flawed.  While it may be salvageable, I do not consider that the respondents should be required to meet the case as presently pleaded.  I extend that consideration to Eastern Prosperity notwithstanding that the strike out motion has only been brought by DBF.

    Motion for Representation by a Person other than a Legal Practitioner Entitled to Appear

11. Mr McIntyre moves for leave to be represented by a person who is not a legal practitioner currently entitled to practice.  The person he has in mind is a legal practitioner whose practising certificate has been suspended by the Legal Practice Disciplinary Tribunal of Western Australia.  The reasons for that suspension, according to the practitioner, are:

    1.his failure to answer correspondence and references from the Legal Practitioners Complaints Committee; and

    2.taking money into his general account when such money ought to have been banked into his trust account; and

    3.taking a loan from a client in breach of the rules of professional practice.

12. According to an affidavit sworn by the practitioner, the Tribunal accepted that there were no monies whatsoever that had been misappropriated and that the loan made by the client had been repaid in full.  His suspension from practice is subject to an appeal to the Full Court of the Supreme Court of Western Australia.  The practitioner describes himself in his affidavit of 3 April 2002 as a “businessman”.  In an earlier affidavit, sworn on 18 March 2002, the practitioner indicated that during 1998 he provided his services on a voluntary basis to the WA Retailers’ Association.  He said he was involved with Mr Nick Catania JP, in providing legal services in a large number of shopping centre disputes and in formulating policy relating to possible amendments to retail tenancy legislation in Western Australia.  He became involved in providing some advice in relation to the Heart of the Park Shopping Centre.  His affidavit describes the history of his involvement and that of Mr Catania.  He evidently undertook a substantial amount of work and investigations with relevant statutory authorities in connection with the centre.  He also approached Members of Parliament.  Ultimately he concluded that “…urgent work had to be undertaken as a matter of priority to prepare the matter for litigation in the Federal Court”.  He consulted extensively with the Group Members and with other witnesses and engaged the services of an independent expert valuer and a forensic accountant.  He referred to the pressure on Mr McIntyre and other tenants.  He asks that he  be permitted to assist Mr McIntyre. 

13. Subject to the requirements of the Legal Practitioners Act 1893 (WA) Mr McIntyre can be assisted by anyone who is prepared to assist him in relation to the preparation of pleadings or arguments. The requirements of the Legal Practitioners Act, however, would generally speaking, prohibit a person other than a practitioner with a current practising certificate from charging any fee in relation to such assistance.

14. If this practitioner has been the source of advice in relation to the statement of claim in its previous incarnation and its current form, then the value of such assistance may be doubtful.  In my opinion, it is not appropriate, however, that the Court should make any order which will permit a practitioner whose practising certificate is currently suspended from appearing in court on behalf of or with Mr McIntyre as a Mckenzie Friend. 

15. In my opinion, therefore, Mr McIntyre’s motion should be dismissed.

    Future Disposition of the Case

16. Notwithstanding its considerable revision, the substituted statement of claim seems to have retained many of the vices of its predecessor.  As I observed in giving judgment on the previous statement of claim on 6 December 2001, if the fundamental difficulties could not be overcome I would not be disposed to allow further amendments and the incurring of further unnecessary costs on all sides.  It may be, however, that out of the mass of irrelevant material a case may be formulated based upon an implied representation as to financial capacity which seems to have been the intended target of the substituted statement of claim.  I will therefore afford the applicants one further opportunity to prepare a further amended pleading based on that case.  I would also ask the parties whether or not the case would more appropriately be referred to the Federal Magistrate’s Service with a view to reducing the costs of further proceedings on both sides.

I certify that the preceding thirty four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             8 April 2002

Mr DC McIntyre appeared on his own behalf and on behalf of Patricia McIntyre

Counsel for the First

Respondent:

Solicitor for the First

Respondent:

Counsel for the Second

Respondent:

Solicitor for the Second

Respondent:

Ms K Hafford

Ilberys

Ms DM Templeman

Minter Ellison

Date of Hearing: 

Date of Judgment:

18 March 2002

8 April 2002