Metroplaza Pty Limited v Girvan NSW Pty Limited (in liquidation)

[1993] FCA 273

Re: METROPLAZA PTY LIMITED
And: GIRVAN NSW PTY LIMITED (IN LIQUIDATION); C.C. (NEW SOUTH WALES) PTY
LIMITED (IN LIQUIDATION) formerly known as CONCRETE CONSTRUCTIONS (NSW) PTY
LIMITED; LEIGHTON CONTRACTORS PTY LIMITED; HOLLAND STOLTE PTY LIMITED; THE
MASTER BUILDERS ASSOCIATION OF NSW; AUSTRALIAN FEDERATION OF CONSTRUCTION
CONTRACTORS and JOHN CUNNINGHAM
No. NG5 of 1992
FED No. 273
Number of pages - 11
Practice and Procedure
(1993) ATPR 41-241

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J(1)

CATCHWORDS

Practice and Procedure - pleadings - summons from Commercial Division of Supreme Court of New South Wales used as pleadings in Federal Court - misleading or deceptive conduct - price-fixing - conspiracy to injure by unlawful means - conspiracy for unlawful purpose - claim for restitution - whether material facts alleged to support claims - whether claims embarrassing or oppressive - reading of pleadings as a whole.

Crimes Act 1900 (NSW) - s 178BA

Trade Practices Act 1974 (Cth) - s 45(2), s 45A(1), s 52, s 75B, s 76(1)(f), s 82

Trade Practices Commission v Allied Mills Industries Pty Ltd and Ors (1980) 32 ALR 570, (1980) ATPR 40-178

McKernan v Fraser (1931) 46 CLR 343

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 66 ALJR 768

Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221

Yorke v Lucas (1985) 158 CLR 661

HEARING

SYDNEY, 24 February 1993

#DATE 28:4:1993

Counsel for the applicant: Mr B. Coles QC

Instructed by: Rosenblum and Partners

Counsel for the fifth, sixth
and seventh respondents: Mr J.A. Simpkins

with Mr J. Oorfanou

Instructed by: Colin Biggers Paisley

ORDER

THE COURT ORDERS THAT:

1. The application of the fifth, sixth and seventh

respondents be dismissed.

2. The fifth, sixth and seventh respondents pay the

applicant's costs of this application.

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

JUDGE1

FOSTER J This is an application brought on behalf of the fifth, sixth and seventh respondents (the "respondents") to these proceedings seeking the striking out of certain paragraphs of the applicant's pleadings. By a notice of motion filed in Court on 9 July 1992, orders were sought:-

"1. That paragraphs C11, C12, C13, C16, C20, C22, C22A, C23 and C26 of the Amended Summons be struck out.

2. Alternatively to 1., that the proceedings be stayed or dismissed generally or in relation to the claim for relief made in the Amended Summons against the Fifth, Sixth and Seventh Respondents.

3. That the Applicant pay the costs of the Fifth, Sixth and Seventh Respondents of this motion and of the proceedings."

1. The pleadings are referred to as the "Amended Summons" rather than, as would normally be the case, an amended statement of claim. This is the result of the history of this litigation. Proceedings were originally commenced in the Commercial Division of the Supreme Court of New South Wales by way of a summons filed in that Court. Later, the proceedings were transferred to this Court. However, it was accepted by the parties that the original summons would serve as the originating process in this Court, rather than a separate statement of claim being filed. Pursuant to orders of Lockhart J made on 13 February 1992 the Amended Summons was filed by the applicant in the Registry of this Court on 5 March 1992.

2. The form of the Amended Summons followed the procedure in the Commercial Division of the Supreme Court of New South Wales in that it set out what the applicant asserted to be the "NATURE OF DISPUTE". This is stated as follows:-
   

"Claim by the Plaintiff as developer of a substantial construction project at North Sydney for recovery of moneys or damages resulting from collusive arrangements between the Defendants with respect to tenders furnished to the Plaintiff in response to invitations to tender extended by the Plaintiff to a number of substantial construction companies.

The tender invitees are alleged to have agreed between themselves, with the support and encouragement of two trade associations to 'load' their respective tenders with additional amounts totalling $3,000,000.00 of which $2,000,000.00 would be paid by the successful tenderer to the other unsuccessful tenderers and the remaining $1,000,000.00 was to be divided between the two trade associations.

The Plaintiff in due course accepted one such tender, which relevantly incorporated the $3,000,000.00 loading, in ignorance of the collusive arrangements to that effect made between the Defendants. On 14 April 1989 the Plaintiff, Ibrox Constructions Pty Limited ('Ibrox') and the First Defendant (Girvan) entered into a number of deeds and agreements the cumulative effect of which was that Girvan undertook to execute the project for the Plaintiff for the price of $137,689,023.00. ( ***** ) The practices of which the Plaintiff complains have come to light as a result of the Royal Commission into productivity in the Building Industry in New South Wales, and the evidence given thereat."

1. The procedure of the Commercial Division was also followed in that the applicant set out in the Amended Summons its view of the "ISSUES LIKELY TO ARISE". These are stated as follows:
   

"1 Whether the conduct of the Defendants constitutes misleading or deceptive conduct in trade or commerce in contravention of the provisions of Part V of the Trade Practices Act, 1974. 2 Whether the conduct of the Defendants constitutes a price fixing arrangement in contravention of the provisions contained in Part IV of the Trade Practices Act 1974. 3 Whether, in the circumstances, the Defendants have conspired or combined to cause injury and damage to the Plaintiff. 4 Whether each of the Defendants is liable to repay to the Plaintiff certain amounts of money respectively received by it, by reason of having been unjustly enriched in consequence of the receipt of the same, or whether each is liable to account for such moneys to the Plaintiff as moneys had and received.

5 The amount of any damages to which the Plaintiff may be entitled in the event that it establishes one or more of the respective causes of action relied upon."

1. There then follows what is described in the Amended Summons as the "SUMMARY OF PLAINTIFF'S CONTENTIONS". It is to be observed that this portion of the Amended Summons more closely approximates to the form of the statement of claim used in proceedings in this Court. However, in my view, it would be wrong, having regard to the fact that it is not a standard pleading, to read its contents without having regard to the essentially explanatory matter which has proceeded this part of the pleading. It reads as follows:-
   

"5 On or about 16 September 1988, the Plaintiff by its agent, Chester Group Pty Limited, invited each of the Tenderers to submit to it a tender for the construction of the Project upon certain terms and conditions. PARTICULARS The invitation to tender was in writing and comprised a document dated 16 September 1988, and entitled 'Instructions to Tenderers'.

6 In or about October 1988 it was agreed by and between each of the Tenderers, and further or alternatively between each of the Tenderers and the Fifth, Sixth and Seventh Defendants, that in connection with the respective proposed tenders to the Plaintiff for the execution and completion of the Project:

(a) the successful tenderer should pay amounts totalling $2,000,000.00 to the four remaining unsuccessful tenderers at the rate of $500,000.00 for each such unsuccessful tenderer;

(b) the successful tenderers should pay further amounts totalling $1,000,000.00 by way of 'special fees' in an amount of $500,000.00 to each of A.F.C.C. and M.B.A.

(c) each Tenderer should make provision in the calculation of the total tender price to be submitted by him to the Plaintiff, for the additional costs to him of making the payments referred to in sub-paragraphs (a) and (b) hereof, in the event that his tender should be successful; and

(d) neither the fact of the said agreement, nor the matters referred to in subparagraphs (a), (b) and (c) hereof should be revealed or disclosed to the Plaintiff.

PARTICULARS

(i) The agreement was made at meetings at the premises of A.F.C.C. at St Leonards on 18 October 1988 and on 21 October 1988, and at other time and places unknown to the Plaintiff;

(ii) the persons present at the time of making the said agreement, by and between whom the same was made were: Girvan represented by David May. Concrete represented by Peter Constructions Wollard. Leighton Contractors represented by Leon Dixon. Holland Stolte represented by Harry Shead. Multiplex represented by Don Smythe. MBA represented by John Twyford and Wendy Roydhouse. AFCC represented by John Cunningham and Geoff Sexton.

(iii) the agreement, so far as it was express, was made orally between the persons referred to in subparagraph (ii).

(iv) inasmuch as the said agreement was implied or to be inferred, such implication is to be derived inter alia ( ***** ) from the invoicing, payment and receipt of the moneys hereinafter refereed to; in addition the First Defendant and the Second Defendant made provisions for the payments in the calculation of their tender prices.

(v) so far as the said agreement is recorded or evidenced in any writing, full particulars thereof will be provided after discovery.

7 On or about 25 October 1988, each of the Tenderers submitted its tender in writing to the Plaintiff."

1. The following paragraphs of the Amended Summons allege that the applicant accepted the tender submitted by the first respondent, now in liquidation, and entered into several agreements for the construction of the project (paragraph 8); that unknown to the applicant, and without its approval or consent, the agreed price incorporated the additional amount of $3,000,000.00 provided for in the agreement alleged in paragraph 6 (paragraph 9); and that after the applicant's acceptance of its tender, the first respondent paid certain amounts pursuant to the agreement alleged in paragraph 6 (paragraph 10).

2. The paragraphs of the Amended Summons the subject of the strike-out application of the fifth, sixth and seventh respondents relate, so far as they affect those particular respondents, first to a claim of knowing participation in an agreement, arrangement or understanding contrary to ss 45(2) and 45A(1) of the Trade Practices Act 1974 (Cth) (the "Act"), secondly, a claim of knowing participation in a breach of s 52 of the Act, thirdly, a claim in tort for conspiracy, and lastly, a claim based in restitution.

3. I shall deal with each claim in the order in which argument on the application proceeded before me.

4. The claim in tort for conspiracy is set out in paragraphs 22 and 22A of the Amended Summons, which read as follows:-
   

"22 ( ***** ) During 1988 and 1989 the Defendants unlawfully conspired with each other to cause injury and damage to the Plaintiff by procuring that each tenderer amongst them, if successful, would at the Plaintiff's direct or indirect expense pay secret fees to the unsuccessful tenderers and the AFCC and the MBA.

22A Alternatively to paragraph 22 the Defendants unlawfully conspired to injure the Plaintiff by unlawful means, namely by:

(a) entering into agreements or arrangements with each other in contravention of Section 45A(1) of the Trade Practices Act;

(b) deception and dishonestly obtaining for themselves and each other money in contravention of Section 178BA of the Crimes Act 1900, NSW;

(c) engaging in misleading and deceptive conduct in contravention of Section 52 of the Trade Practices Act or alternatively being persons involved in a contravention by the First Defendant of Section 52 of the Trade Practices Act."

1. It can then be seen that paragraph 22 amounts to a claim of the tort of conspiracy for an unlawful purpose or unlawful purposes, and that paragraph 22A alleges a conspiracy by the unlawful means therein described.

2. In relation to the first instance of "unlawful means" described in paragraph 22A, that of entering into price-fixing agreements or arrangements in contravention of s 45A(1) of the Act, it was submitted on behalf of the respondents that as the material facts relied upon to found this claim were those set out in paragraph 6 (paragraph 23(a)), the same facts were being relied upon to establish this claim in conspiracy as were being used to base the price-fixing claim itself. Therefore, it was submitted, that in the absence of additional facts, paragraph 22A(a) amounted to an allegation of a conspiracy to conspire and, as such, did not afford an available cause of action.

3. Reliance for these submissions was placed on the decision of Sheppard J in Trade Practices Commission v Allied Mills Industries Pty Ltd and Ors (1980) 32 ALR 570, (1980) ATPR 40-178.

4. In that case, the Commission sought the imposition of pecuniary penalties against several companies alleged to have conspired to fix the price of liquid glucose. The case was based upon s 76(1)(f) of the Act which provided that if a person had conspired with others to contravene a provision of Pt IV of the Act the Court might order the person to pay the penalties provided. It was, therefore, not an action brought by a person alleging the commission against him of the common law tort of conspiracy.

5. Each respondent brought an application to strike out the whole or part of the amended statement of claim. His Honour noted at ALR 577; ATPR 42,458:-
   

"As the respondents submitted, there is difficulty in embracing the concept basic to the allegation of conspiracy made in each of the paragraphs of a conspiracy to make an arrangement or enter into an understanding. It is to be emphasized that the conspiracies charged are not conspiracies to raise or maintain the price of liquid glucose, nor are they conspiracies to exhort, incite, encourage or persuade persons to make arrangements or enter into understandings to do so. The conspiracies are said to be conspiracies to make arrangements or to enter into understanding themselves made unlawful by the Act. It was in those circumstances that counsel for the first respondent submitted that, as a matter of construction, the Act did not make unlawful a conspiracy to make an arrangement or enter into an understanding. Such a concept was tautologous."

1. His Honour referred to English authorities and observed that a conspiracy is, itself, an agreement. In the light of the particulars furnished in the proceedings, his Honour concluded that the alleged conspiracies were identical to the alleged arrangements relied upon as founding the breaches of Part IV of the Act and said (ALR 579; ATPR 42,460):-
   

"Thus the conspiracies relied upon are also the arrangements or understandings alleged in the other paragraphs in the statement of claim. Whatever the operation of s 76(1)(f) of the Act may be in relation to s 45, I am satisfied that it is not appropriate to charge, as an alternative to charging arrangements or understandings made unlawful by s 45, conspiracies which are themselves such arrangements or understandings. The paragraphs in terms do not purport to do this. They charge conspiracies to make unlawful arrangements or to enter into unlawful understandings, but the paragraphs must be read subject to the particulars which have been provided. When that is done it becomes clear that the conspiracies on the one hand and the arrangements and understandings on the other and are identical. That is plainly and demonstrably a situation which the Act does not permit or provide for. Accordingly, the paragraphs charging conspiracy will be struck out."

1. It was the respondents' submission that the present case was on all fours with Allied Mills and that the passage cited from the judgment of Sheppard J was determinative in requiring that paragraph 22A(a) be struck out.

2. Although I see much force in the respondents' argument I am not persuaded that when the paragraph is read with the whole of the Amended Summons, particularly paragraphs 5, 6 and 7, it so clearly covers the same ground as is relied upon in paragraphs 11 to 13 as to warrant its being struck out as being clearly untenable. Accordingly, I reject this aspect of the respondents' application.

3. As the submissions made by the respondents in respect of other paragraphs of the Amended Summons involve the assertion that insufficient particulars have been provided, it should be noted that the respondents have in fact pleaded to the Amended Summons and that the pleadings have been closed for some time. In fact, the respondents sought particulars of the Amended Summons by letter of 14 April 1992. This letter was responded to on 1 May 1992. It has been asserted by the respondents that the reply was inadequate. However, as I understand it, no application has been made for further and better particulars and the matter has so rested since that date. The applicant's letter of 1 May 1992 made reference, by way of providing particulars to aspects of the proceedings in the Royal Commission into Productivity in the Building Industry in New South Wales and to evidence given before the Commissioner. It may also be noted that when the applicant sought to interrogate the respondents as to the discussions and agreement relied upon the respondents were successful in a claim that they should not be required to answer the interrogatories on the grounds of self incrimination. In these circumstances it is not possible to have much sympathy with any claim that, without the provision of further particulars, the respondents would be in the dark as to the case brought against them. However, of course, this does not dispose of the matter as the role of particulars is not only to provide illuminating information but also to provide definition of the issues for determination in the proceedings.

1. In respect of paragraph 22A(b), it was argued on behalf of the respondents that material facts are not pleaded to constitute the deception required by s 178BA of the Crimes Act 1900 (NSW). It was submitted that the section requires some positive conduct, something akin to common law fraud and that facts material to this allegation have not been pleaded.

2. Further, it was put that the element of dishonest obtaining required by s 178BA has not been satisfied by a material allegation of the absence of an entitlement in the respondents to receive the monies. Instead, it was suggested that the pleading expresses only "an allegation of the conclusion of dishonesty".

3. Whilst it is true that paragraph 22A(b) might more satisfactorily have included allegations of material facts along these suggested lines, either by way of incorporation in the paragraph or by the provision of additional particulars in the pleading, I am not prepared, in the circumstances, to strike the paragraph out. When it is read with the other allegations in the Amended Summons including the preamble, I consider that there is a sufficient indication of the applicant's case in this regard. Indeed, one of the objections to answering interrogatories made on behalf of the respondents was the possibility of self incrimination in respect of a charge under that very section.

4. Regarding the third "unlawful means" described in paragraph 22A, namely engaging in misleading and deceptive conduct in contravention of s 52 of the Act or being involved in such a contravention, it was submitted that material facts supporting the claim have not been pleaded. Paragraph 22A(c) needs to be read with paragraphs 17 to 20 of the Amended Summons which allege breaches of s 52 of the Act which are relied upon. These paragraphs read as follows:-
   

"17 Further, on or about 25 October 1988, each of the First, Second, Third, and Fourth Defendants represented to the Plaintiff ( ***** ) that the tender submitted by him was a bona fide tender for the construction of the Project at a proper cost.

PARTICULARS Tender form completed by each of the First, Second, Third and Fourth Defendants and submitted to Chester Group on or about 25 October 1988.

( ***** ) 17A The said representation was misleading or deceptive or likely to mislead or deceive and was contrary to the fact in that the tender submitted by him was not a bona fide tender for the construction of the project at a proper cost in that:

(a) the tender price was not referable to the particular project or ordinary or bona fide overheads or to ordinary market or bona fide rates of profit;

(b) provision was made either in the tender calculation or in the profit or both for payment of unsuccessful tender fees and special fees secretly payable to the recipients thereof.

18 Further, on or about 25 October 1988, and at all material times thereafter, the First, Second, Third and Fourth Defendants concealed from the Plaintiff, or alternatively failed to disclose to the Plaintiff:-

(a) the fact of the making of the said agreement or agreements, arrangements or understandings between the Tenderers, and the terms of such said agreements, arrangements or understandings; and

(b) the fact that the tender prices submitted to the Plaintiff incorporated an additional sum of $3,000,000.00, not related to any goods or services proposed to be supplied or performed for the benefit of the Plaintiff in connection with the execution and completion of the project.

18A In all the circumstances the First, Second, Third and Fourth Defendants had a duty to disclose the facts so concealed from the Plaintiff referred to in paragraph 18 above. PARTICULARS The duty arose from such Defendants' knowledge of the existence of the agreements, arrangements or understandings, their participation therein, the fact that Girvan honoured them and as a matter of law.

19 By means of the matters referred to in paragraph 17, 17A, 18 and 18A above, the First Defendant or alternatively each of the First, Second, Third, and Fourth Defendants engaged in conduct in trade or commerce that was misleading and deceptive or likely to mislead or deceive, in contravention of the provisions of Section 52(1) of the Trade Practices Act, 1974.

20 Further, each of the Fifth, Sixth and Seventh Defendants or alternatively each of the Second, Third, Fourth, Fifth, Sixth and Seventh Defendants was a person involved in such a contravention, in that each of them ( ***** )

(a) aided and abetted; and

(b) was a person directly or indirectly knowingly concerned, in such contravention. PARTICULARS Each of the said Defendants was aware of and participated in the said agreements, alternatively arrangements or understandings, and Girvan honoured the said agreements, arrangements or understandings."

1. The first alleged representation is said to have been expressed in the tender form submitted by each tenderer to the applicant's agent. In the tender form submitted by the first respondent, which was in evidence in this application, it was stated "We confirm that this is a bona fide Tender".

2. In relation to the alleged representation that the tender was at a proper cost, it was submitted that if it is an implied representation then supporting material facts would need to be pleaded and have not been pleaded in the Amended Summons. In argument I was referred to the tender form submitted by the first respondent, which is annexure B to the affidavit of David Geoffrey May sworn 11 August 1992. In that form the tender is stated to be "in accordance with the Instructions to Selected Tenderers". For present purposes I am prepared to accept that this refers to the "Instructions to Tenderers" which forms annexure A to the same affidavit and is described in paragraph 5 of the Amended Summons. On pages 6 to 8 of the "Instructions to Tenderers" matters of pricing, bills of quantities, profits and margins are dealt with. Under the heading "All Profit, Margin and Mark Up" these allowances are divided in the following way:-
   

"(iii) That allowance included in the Tenderer's lump sum price(s) shall be deemed to include the following:

(a) Profit;

(b) all salaries, costs, charges and expenses in connection with Head Office organisation including directors' fees and expenses or any other off-site overheads, costs, charges or expenses, including the costs and expenses of and in connection with all stores, yards and workshops other than those located on the Site and travelling expenses;

(c) business and all other risks; and

(d) all other costs not otherwise expressly taken up or included in the Bill of Quantities."

1. From this material and the apparent references to it in the Amended Summons I am satisfied that there is sufficient indication of the nature of the case being brought in relation to alleged misrepresentations as to the tender being bona fide and the construction costs "proper". The alleged participation of the respondents through their attendance at the relevant meetings is also sufficiently indicated.

2. A further attack was made on paragraph 22A(c) in that it was said to be oppressive and embarrassing for the respondents to meet both the claim of knowing participation in a breach of s 52 of the Act made in paragraph 20, as well as the claim for conspiracy in relation to s 52. Counsel for the respondents contended that paragraph 22A(c) in effect alleged a conspiracy to be someone who conspired to effect the contravention of s 52. Therefore, it was said to have the same circularity problem as was said to have arisen in paragraph 22A(a). I reject this submission for the reason previously given.

3. Paragraph 22 alleges a conspiracy with the unlawful purpose of extracting monies from the applicant. It was submitted, on behalf of the respondents, that no sufficient cause of action was pleaded as it is not unlawful to combine to advance one's own economic interests even if the consequence is injury to another party. Counsel relied upon comments of Evatt J in McKernan v Fraser (1931) 46 CLR 343 at 399-400. I am satisfied, however, that the paragraph, when read in context, makes allegations which take it outside the operation of this principle. It alleges, in effect, a combination to defraud the applicant in which those respondents were active participants.

4. A claim for restitution is made in paragraph 26 (erroneously described as "28") which reads:-
   

"Further, or alternatively, with respect to the several payments more fully described in paragraphs 23(e) and (f) hereof, the respective Defendants, to the extent of the amounts therein recorded:-

(a) have had and received such sums to the use of the Plaintiff; or

(b) have been and are unjustly enriched by means of the receipt of such sums."

1. This paragraph was sought to be struck out on the basis that the concept of unjust enrichment is not a definitive legal principle and has no role separate from the other causes of action pleaded. Further, it was submitted that, as it was common ground amongst the parties that the contract for construction between the applicant and the first respondent was valid, the claim for monies had and received pursuant to that contract was misconceived. Material facts were not pleaded to identify the basis for a separate cause of action in restitution.

2. Counsel for both parties referred to the recent High Court decision in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 66 ALJR 768. The joint judgment in that case rejected the view that unjust enrichment was a definitive legal principle in Australian law. After referring to the judgment of Deane J in Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221, their Honours stated at 778:-
   

"Accordingly, it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality."

1. Counsel for the applicant submitted that the relevant payments from the first respondent to the other respondents were in no way attributable to any valid contract. Instead, the payments were made to co-conspirators pursuant to an unlawful combination.

2. In the context of the Amended Summons as a whole, rather than paragraph 26 in isolation, the relevant element of illegality to substantiate a proper claim for restitution is sufficiently alleged. The respondents can be taken to be aware of the nature of this claim against them. Further, I am of the view that it has not been sufficiently demonstrated that the applicant is unable to rely upon a common money count in these circumstances. I refuse to strike out the paragraph.

3. In relation to the claim contained in paragraph 20 of knowing participation in a contravention of s 52 of the Act, it was contended on behalf of the respondents that material facts to support this claim were not pleaded. First, it was submitted that the misrepresentations as to a "bona fide tender" and the tender being "at a proper cost" were not supported by material facts in the pleadings, an assertion which I have already considered and rejected.

4. Next, a "more fundamental objection" was raised that the pleadings had not alleged knowledge on the part of the respondents as to the essential matters making up the contravention as required by Yorke v Lucas (1985) 158 CLR 661. It was submitted that the respondents were, respectively, trade associations and a consultant for one of the associations. Therefore, to make out knowing participation on their part it would need to be alleged that each of those respondents was aware of the terms upon which each tender was made. I do not agree with this submission. It is quite sufficiently alleged that those respondents were parties to a scheme whereby each of the tenderers would illegitimately inflate its tender price by the amount of $3,000,000.00 with the intention that the applicant should pay the amount of the increase, believing it to be part of a bona fide tender price, it being intended that the amount of the increase, when paid, be distributed amongst the conspirators in agreed proportions. In my opinion, the Amended Summons makes this quite clear. I decline to strike out the paragraph on this ground.

5. The final ground argued for the strike-out application related to the price-fixing allegations contained in paragraphs 11 to 13 of the Amended Summons, which are as follows:-
   

"11 The terms of the said agreements referred to in paragraphs 6(a), (b) and (c) ( ***** ) above, or alternatively the arrangements or understandings thereby made, were made for the purpose (or for purposes which included the purpose) or had or was likely to have the effect of fixing or controlling the price or an allowance for services proposed to be supplied by the Tenderers in competition with each other in that:

(a) Each of the several amounts set out in paragraph 10 above and the total amount payable by the successful tendered to each unsuccessful tenderer and the AFCC and MBA respectively as aforesaid were fixed or controlled as amongst each of those persons.

(b) The price or allowance payable by each participant to each other participant in respect of each other such participant's participation in the tendering process and the arrangement as set out in paragraph 10 above was thereby fixed or controlled.

(c) in so far as each tenderer if successful would be obliged to make such payments, the amount of the provision or allowance to be made in the calculation by each tenderer of its tender price or profit margin or both was thereby fixed or controlled. 12 By reasons of the matters last set forth, such agreements, or alternatively such arrangements or understandings, are deemed to have had the purpose or to have had or to have been likely to have had the effect of substantially lessening competition in the market in which the Tenderers supplied construction services.

13 In the premises, the said agreements, or alternatively such arrangements or understandings, were made in contravention of the provisions of Section 45(2) of the Trade Practices Act, as affected by the provisions of Section 45A(1) thereof.

PARTICULARS: The said purpose is established or alternatively is to be inferred from the facts set out in sub-paragraphs 11(a), (b) and (c) above and from the fact that in tendering for the works, Girvan acted in accordance with the said agreements, alternatively arrangements or understandings thereby made."

1. The liability of the respondents is alleged in paragraph 16 to arise by reason of their being "persons involved in such contravention, within the meaning of Section 82 and Section 75B" of the Act.

2. The first attack on the price-fixing allegations was that no factual matter is asserted which would enable the conclusion that a purpose of the arrangement was price-fixing. Rather, so it was submitted by counsel, paragraph 6(c) alleges only that each tenderer would "make provision in the calculation of the total tender price" for the $3,000,000.00 in fees and not that the fees would be added to any specific figure. Accordingly, the fees would only be a matter given regard to in formulating the tender price and an understanding that the fees would be added to the price was absent. It was submitted that in these circumstances there was no purpose of price-fixing.

3. On behalf of the applicant, counsel argued that the only fair reading of paragraph 11, in the context of paragraph 6(c) was to make clear that the intention of the alleged agreement was to add on the unsuccessful tenderers' fees and special fees. This, it was submitted, was a sufficient allegation of a price-fixing exercise. The question is fairly arguable. I decline to strike out the paragraph on this ground.

4. It was also submitted that, as the pleading envisaged that the tender prices could vary amongst themselves, with only the component of $3,000,000 remaining constant, there was a fixing not of the price as such but only of part of it. It was submitted that this could not amount to price-fixing within the meaning of the Act. Whilst I acknowledge that the matter is fairly arguable, I am not persuaded of the correctness of the argument to the point where I could exercise the summary jurisdiction to strike out.

5. In the result, I decline to make any of the orders sought.

6. The application is dismissed with costs.