Mick Skopros Petrol Discount King Pty Ltd (ACN 008 160 996) v The Shell Co of Australia Pty Ltd (ACN 004 610 459)

[1997] FCA 1280

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 96  of   1995

BETWEEN:	MICK SKORPOS PETROL DISCOUNT KING PTY LTD (ACN 008 160 996) APPLICANT
AND:	THE SHELL COMPANY OF AUSTRALIA LIMITED (ACN 004 610 459) RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	21 NOVEMBER 1997
WHERE MADE:	ADELAIDE

ON THE RESPONDENT’S NOTICE OF MOTION DATED 14 OCTOBER 1997 THE COURT ORDERS THAT:

1. In relation to the third amended statement of claim:

1.1The applicant should give in writing particulars identifying the wholesale fuel suppliers referred to in the introductory words of paragraph 34A of the third statement of claim.

1.2Paragraph 34A.1 of the third statement of claim is struck out.

1.3Paragraph 34A.7(c) is struck out.

1.4The words “and the fact that Bob Glindeman had given an assurance that if things went wrong he would still be able to help fix the problem” in paragraph 34A.8 of the third statement of claim are struck out.

1. In relation to the defence and reply to cross-claim:

2.1Paragraph 30.1(e)(iii)(B) from the words “the main building” to its end is struck out.

2.2Paragraph 30.1(j)(iv) is struck out.

2.3Paragraph 30.1(o)(i) after the reference to Mr Ente to its end is struck out.

2.4Paragraph 30.3(e)(ii) is struck out.

2.5Paragraph 44A is struck out.

2.6Paragraph 45 is struck out.

1. Further consideration of the Notice of Motion is adjourned with liberty to apply.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 96 of 1995

BETWEEN:	MICK SKORPOS PETROL DISCOUNT KING PTY LTD (ACN 008 160 996) APPLICANT
AND:	THE SHELL COMPANY OF AUSTRALIA LIMITED (ACN 004 610 459) RESPONDENT

JUDGE:	MANSFIELD J
DATE:	21 NOVEMBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

There are two motions before the Court, each dated 14 October 1997.  They are part of the ongoing saga involving the pleadings in this matter.  I have given rulings in respect of pleadings on two earlier occasions, namely 12 February 1997 and 9 May 1997.  The early history relating to the pleadings was set out at some length in my reasons of 12 February 1997.  I will not refer to them again in detail.

The first motion heard was that on the part of the applicant for leave to file a fourth amended statement of claim.  It is to do two things:

1. To add pars 13A, 22A, 22B, and 22C to allege that the agreement entered into between the applicant and the respondent in late 1990 or thereabouts (statement of claim pars 11 and 12) included a term to the effect that there was an option to further renew that agreement for an additional five year period, subject to either party having before then given twelve months notice in writing of a desire not to exercise that option.  By reason of the one year extension to that agreement, the agreement expired on 31 January 1997, subject to the option to renew for a further five years.  It is said then that in the absence of a notice in writing having been given by either party in the twelve month period up to 31 January 1997 that it did not wish to renew the agreement for a further five year period, that five year period has therefore been extended by a further five years to 31 January 2002.

Effectively, the applicant seeks to have it declared that the agreement between itself and the respondent has now been extended to 31 January 2002.  It is unclear precisely how that claim for relief is expressed in the present application.

I shall call that claim “the five year extension claim”.

1. To amend pars 35(b), (c), (d), (e) and (f) and to add pars 35(dd) and (g) to the statement of claim substituting or expanding figures in respect of the claim or damages in the light of a more recent expert’s report.

The application relating to the damages quantification was, in the event, not opposed.  In due course I will give leave to amend the statement of claim to incorporate those revised figures.

The application to amend the statement of claim to incorporate allegations in support of the five year extension claim was opposed.  The only evidence adduced in support of that application was the affidavit of Mr Skorpos of 13 October 1997.  After ruling on objections to that evidence, I heard submissions on the application.  It is unnecessary to refer to the evidence of Mr Skorpos because the ground of objection developed did not depend upon any matters of prejudice, or of delay, or of any discretionary considerations.

The ground of objection to giving leave to amend to assert the five year extension claim is a short one.  It is that the proposed amendment is not one which is permitted under O 11 r 7 of the Federal Court Rules (“the Rules”).  That rule provides:

“A party may plead a new matter which has arisen since the commencement of the proceeding.”

The application in this matter was issued on 14 December 1995.  It is submitted that the proposed amendment involves a new cause of action.

Counsel for the applicant sought time to consider that submission.  Apparently, notice of it had not been given.  I have adjourned that notice of motion for further hearing in the near future.

There was separately before me a motion of the respondent, supported by an affidavit exhibiting various correspondence, for orders striking out par 34A of the third statement of claim, secondly striking out pars 9.5, 12A.1, 22, 28.6, 30.1(e)(iii)(B), 30.1(j)(iv), 30.1(o)(i), 30.3(e)(ii), 44A, 45, 48 and 49 of the reply and defence to cross-claim, and thirdly for further and better particulars of par 30.2 and certain other paragraphs of the third statement of claim and par 31.2 of the reply to defence and defence to cross-claim.  That motion was opposed by the applicant.

Shortly before the hearing, the applicant indicated that it would, and did, provide certain further particulars in response to certain of the matters raised.  Those further particulars are presently only contained within a composite of the pleadings and particulars, and are not otherwise filed.  It was agreed that I should have regard to that composite to identify those further particulars.  Consequently not all the requests for further and better particulars of paragraphs of the third statement of claim or in the reply and defence to cross-claim identified in the notice of motion were pursued.  I deal only with those about which there is an ongoing issue.

In the light of the proposed amendment to assert the five year extension claim, rulings on whether pars 9.5, 12A.1, 22 and 49 of the reply and defence to cross-claim should be struck out were deferred.  That is because, depending upon whether that proposed amendment is allowed, or whether fresh proceedings are instituted in respect of the five year extension claim and then the two claims are directed to be heard together or to be consolidated, the complaints about those paragraphs of the reply and defence to cross-claim may be refined or no longer pursued.  That course of action was adopted with the agreement of counsel.

I therefore turn to consider the remaining and significant paragraphs of the third statement of claim and of the reply and defence to cross-claim which, in one way or another, are still under challenge.

It is unnecessary to refer in detail to the nature of the application, save to note that the current third statement of claim complains of breaches of contract, breaches of warranty, and misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (“the Act”), arising variously in oral communications between the applicant and the respondent in the periods April to July 1990, in December 1990, in late 1991, and in about February 1992 and from certain documents including one entitled “Heads of Agreement” dated 7 December 1990 and two other documents entitled “Sales Agreement Dealer Owned Outlet” including with one of those documents certain written special conditions. It also complains that the respondent has engaged in resale price maintenance, contrary to ss 48 and 96 of the Act.

As a result of earlier rulings, a proposed amendment then being a proposed par 34A of the statement of claim was put forward.  It was in terms which I considered and ruled upon on 9 May 1997.  That ruling permitted the third statement of claim as then proposed to be amended to include the then proposed par 34A, but subject to it being altered to provide certain further particulars.  If the particulars ordered were not provided, then I directed that various parts of the proposed par 34A not be allowed.  As a result of those rulings, the applicant included in the present third amended statement of claim par 34A.

As considered by me on 9 May 1997, par 34A commenced in the following terms:

“In consequence of the misleading or deceptive conduct of the respondent the applicant has lost the opportunity of negotiating the same or better deal from the respondent or one or other of the other wholesale suppliers of fuel.”

There followed twelve particulars, extending over a little more than a page.  My ruling permitted the proposed par 34A in those terms subject to six particular conditions.  I shall deal with them seriatim.  The present proposed par 34A is also divided into twelve sub-paragraphs, but they now extend over eight pages of the statement of claim.  That is in part as a result of the provision of particulars, sometimes lengthy particulars, to meet my directions.  Those particulars nevertheless produce the present complaints of non compliance with my directions.

It is clear now that the applicant wishes to assert the loss of opportunity to which par 34A refers in its opening words only in a general way.  There was no particular alternative offer more or less contemporaneous with the applicant’s negotiations with the respondent in 1990 or thereabouts, and which the applicant rejected in preference for the terms agreed upon with the respondent.  Nor is there any proposal to establish that, but for the misrepresentations complained of, the applicant would otherwise have taken up any such specific alternative offer.  What it is sought to be established, relevant to the issue of damages, is that there were other wholesale fuel suppliers in the relevant market at the time the applicant was re-negotiating his arrangement with the respondent, and that had the applicant then known that the representations made to it were untrue and had it then known the true facts, it would have taken up negotiations with some one or more of those other wholesale fuel suppliers, and would have been able to reach an agreement in terms more favourable to it than those which it was able to negotiate with the respondent.  Whether it can prove those facts at trial is not relevant for present considerations.

The first condition of my order made on 9 May 1995 was that the proposed par 34A be allowed subject to the applicant properly identifying the “wholesale fuel suppliers” of fuel referred to.  That was to ensure that the respondent knew with which wholesale fuel suppliers it was said on the part of the applicant that it might have been able to negotiate an alternative arrangement.  The respondent then would be able to decide to what extent, if at all, it wished to investigate that allegation and to what extent, if at all, it wished to adduce evidence on that topic.  The document does not presently do so.  It was apparent to me in the course of submissions that my direction may have been misunderstood in that regard, because there is in parts of the particulars an attempt to accommodate that direction within various of the twelve sub-paragraphs.  It has now been specified that the wholesale fuel suppliers there referred to are Ampol, BP, Caltex, Mobil, and Southern Cross.  To avoid any possible misunderstanding, that having been spelled out in submissions, I now direct the applicant to provide particulars in those terms in writing to the respondent.

In sub-par 1 of the proposed par 34A, the applicant asserted “in the past” having been offered terms and conditions the same as and better than offered by Shell, and having lost the opportunity of entering into such arrangements for the supply of petrol on the same or better terms by the conduct of the respondent.  I understood at the time of my reasons on 9 May 1997, as apparently did counsel for the respondent, that particular opportunities said to have been available to the applicant were more or less contemporaneous with the period of its negotiations with the respondent.  On that basis the second condition of the order of 9 May 1997 was that any such offers be fully particularised, and otherwise that that sub-paragraph be struck out.  The applicant has now provided particulars, extending over a number of pages, of offers received by it during 1982 from Amoco, Esso and Caltex.  Those particulars do not in all respects provide precisely information as to when each such offer was made, by whom such offer was made, the nature of such offer, and specifically its terms in so far as they were better than the terms offered by the respondent.  The particulars are rather more general than is desirable, although I accept that the applicant had done its best to provide those particulars, having regard to the period to which they relate.  It is further said that the area managers of those wholesale fuel suppliers periodically from time to time up to 1988 in a general way raised with the applicant transferring its business.

Counsel for the respondent first submitted that those particulars do not accord with my direction, because they do not relate to offers made more or less contemporaneously with the period of negotiations with the respondent.  I accept that point.  It may be that my direction was misunderstood, because at the time of my ruling it was unclear whether the applicant’s case was simply that there was a loss of opportunity to explore alternative options with other wholesale fuel suppliers, or whether there were specific offers or proposals from other wholesale fuel suppliers available to it more or less contemporaneous with its then negotiations with the respondent and which were then rejected.  If there were such alternative specific offers or proposals, I considered that the applicant should particularise them.  They would much more readily be reflected in damages than a more general loss of opportunity of a non specific nature.  As it is now clear, that is not the applicant’s case.  In my view, the particulars provided do not satisfy the direction which I gave, simply because the nature of the applicant’s claim based on its loss of opportunity to enter into alternative arrangements means that no such particularity is capable of being given.  The particulars so provided are, in the context of the claim, no more than pleading proposed evidence of the general nature of the lost opportunity.  They are not properly particulars of a particular lost opportunity in the sense I have outlined.  I strike them out.

I should make it clear that, in so doing, I am not to be taken as ruling that the matters which are the subject of that sub-paragraph are not capable of being given in evidence.  That is a matter for the trial.  One can foresee, in cases where damages are claimed for loss of opportunity, that evidence to show the nature of the opportunity and the prospects of that opportunity coming to fruition would be admissible.  It is common place in personal injury litigation for such evidence to be led.  Whether evidence which reflects the particulars now struck out falls within that category of admissible evidence is a matter for the trial.  That evidence might also be admissible, if in proper form, as relevant to the matters to which par 34A.7 of the third statement of claim refers.

The respondent attacked pars 34A.2 and 34A.3 of the third statement of claim, but they are each in the terms which I allowed in my ruling of 9 May 1997.  I allow them to stand.  Paragraph 34A.3 has added to it, as an indication of what I referred to above, the identification of other wholesale fuel suppliers as being Ampol, BP, Caltex, Mobil and Southern Cross.  I see no reason to strike out that particular additional wording.

The respondent then attacked par 34A.4 of the third statement of claim.  As allowed by my ruling of 9 May 1997, but subject to that ruling, it read:

“The reason for [the applicant being a particularly attractive customer to the respondent and other wholesale fuel suppliers of motor fuel] was associated with the difficulty and burden involved in wholesale fuel suppliers dealing with a number of other individual dealers to make up the volume purchased by the applicant.”

I directed that that pleading should be allowed to stand only if the difficulty and burden referred to be specified.  Particulars have been provided with a view to providing that information.  The respondent’s complaint is that those particulars are inadequate, and in addition that one sentence, namely “various other factors including the generally acknowledged economies of scale too numerous to mention individually but well recognised in trade and commerce”, was not providing particularity at all.  The applicant asserts that the particulars provided are adequate, and in relation to the sentence complained of asserts that the succeeding sub-clause (d) explains in detail those economies despite them being said to be “too numerous to mention individually”.  I have reached the view that the particularity provided is sufficient to serve the proper purposes of pleadings and particulars.  I do not propose to strike out par 34A.4 of the third statement of claim.

The respondent also attacked pars 34A.5 and 34A.6 of the third statement of claim.  Those sub-paragraphs also are in the terms which I allowed in my ruling of 9 May 1997.  I allow them to stand.

Paragraph 34A.7 of the third statement of claim was also attacked by the respondent.  That is the paragraph which deals with some particularity with the facts said to be relevant to the loss of opportunity as it has been identified.  It is, or was, therefore in contradistinction to par 34A.1 dealt with above.  It asserts that the applicant could have negotiated the same or better deal either with the respondent or with the other wholesale fuel suppliers for the same commercial considerations but for the respondent’s conduct complained of.  So that the respondent knew the case which was to be met, I permitted sub-par 34A.7 to stand, provided that particulars were given of the wholesale fuel suppliers referred to, and provided that the terms of the anticipated better deal referred to were specified, that is that the applicant indicate what it seeks to contend that it could have negotiated with the respondent or with one or more of the other wholesale fuel suppliers referred to, to the extent that such terms might be different from the terms of the agreement between the applicant and the respondent.  The respondent would then know what the applicant was aiming to prove.  The wholesale fuel suppliers are identified.  Sub-clause (c) of the pleading asserts:

“Based on previous discussions emanating from the other major oil suppliers over the previous decade the applicant could readily have advised the companies details above of a desire to discuss moving its business from Shell to their organisation and thus could have negotiated the same or a better deal than with Shell.”

In my view that sub-clause is conclusional only.  It does not add to the primary allegations.  It does not plead any facts or particulars.  I strike it out.  There is then given particulars of the nature and size of the applicant’s business relative to other fuel suppliers, so as to make it an attractive fuel reseller.  I allow that sub-clause to stand.  Then sub-clause (e) spells out with some precision what it is that the applicant says is the better deal which it might have been able to achieve.  In my view that sub-clause and the succeeding sub-clause (f) are sufficiently precise to meet the requirement for particularity which I specified in my order of 9 May 1997.  I allow them to stand.

Sub-paragraph 34A.8 of the third statement of claim asserts that, in reliance upon the “promises and assurances” given by the applicant, it did not negotiate with other wholesale fuel suppliers.  I directed particulars to be given of the paragraphs of the statement of claim to which reference is there made of promises and assurances.  It was specifically to ensure that those promises and assurances were those previously identified in the statement of claim.  The information does provide those references; they are pars 9 and 12.4 of the third statement of claim and the particulars of those allegations.  It also alleges that an officer of the respondent had given an assurance that if things went wrong he would still be able to fix the problem.  That particular allegation is not the subject of any asserted promise or assurance specified elsewhere in the statement of claim.  It is not therefore a particular of the allegation which I allowed in the first place.  It may be an unimportant allegation.  If it is to be relied upon, I do not think it should appear simply by way of a particular which by reference incorporates promises and assurances referred to earlier in the third statement of claim.  I therefore strike out from sub-clause (a) the words “and the fact that Bob Glindeman had given an assurance that if things went wrong he would still be able to help to fix the problem.”  I otherwise allow par 34A.8 to remain.

Finally, the respondent attacked pars 34A.9 and 34A.10 of the third statement of claim.  They provide respectively that the respondent knew proposals of the kind made to the applicant by the respondent were necessary to keep the applicant as its re-seller having regard to market conditions, and that market conditions meant that the prospect was “significant” of a better deal being available through other wholesale fuel suppliers if the applicant had pursued that option.  In each case, so that the respondent was appropriately informed, I directed that particulars of the market conditions referred to be given.  Particulars have been given.  It is said that they are insufficient.  In my view they are sufficient to identify the topics upon which the applicant will base its case.  If there are other market factors which are not pleaded, evidence relating to them will not be admissible.  Accordingly, whilst noting that the applicant will be restricted in adducing evidence on this score to evidence which is relevant by reference to the particulars provided, I do not think on the other hand that the particulars so provided are insufficient to enable those topics to be identified.  Accordingly I allow those sub-paragraphs to remain.

The consequence of the above is that:

• the applicant should give in writing particulars identifying the wholesale fuel suppliers referred to in the introductory words of par 34A of the third statement of claim

• par 34A.1 of the third statement of claim is struck out

• par 34A.7(c) of the third statement of claim is struck out

• the words “and the fact that Bob Glindeman had given an assurance that if things went wrong he would still be able to help fix the problem” in par 34A.8 of the third statement of claim are struck out

and that otherwise par 34A of the third statement of claim may stand.

I turn to the outstanding complaints about the third statement of claim.

The particulars provided in respect of pars 30.2(c), 30.2(d)(i), 30.2(d)(vii), and 30.2(g)(i) of the third statement of claim are set out in a letter from the applicant’s solicitors to the respondent’s solicitors of 26 May 1997.  The applicant’s general complaint is that delays caused by what I describe in a compendious way as environmental considerations or requirements and extra necessary measures in respect of work at the Henley Beach site as defined in the third statement of claim led to more stringent planning and environmental conditions.  It is then said the respondent’s failure to perform according to its agreement gave rise to those problems and thus to the delay and extra expense, for which the applicant can claim damages.  The respondent complains that the precise planning or environmental requirements or issues, or the extra measures or conditions, are not clearly spelled out.  The particulars provided, in general, assert that the respondent was in charge of the work when those issues arose, and dealt with the authorities in relation to them, so that it would be well aware of those matters.  It is also asserted that the applicant is unable to provide further particularity until after discovery.  In the interests of a fair trial, it is desirable that those matters be refined as much as possible.  So long as the applicant is but generally aware of the issues, it cannot be expected to provide more particularity except by adopting some form of third party pre-trial discovery process.  As discovery is shortly to be given by the respondent, I think that is unnecessary.  I do not propose therefore to order further and better particulars of those matters at this point.  In the light of the discovery by the respondent, the respondent is given leave to renew its application if, by the exchange of correspondence, the parties cannot sufficiently identify the issues which arise sufficiently to ensure a fair trial of the matters between them.

I have reached the same views as those in the preceding paragraph with respect to par 28.6 of the applicant’s reply and defence to cross-claim.

The respondent’s other concerns about the applicant’s reply and defence to cross-claim can be dealt with more briefly.

Paragraphs 30.1(e)(iii)(B), 30.1(j)(iv), 30.1(o)(i), and 30.3(e)(ii) can all be dealt with together.  The respondent complains that the matters referred to are inconsistent with the third statement of claim.  The starting point is the alleged breaches by the respondent of the agreement alleged in par 12.1 of the statement of claim relating to various building works.  The respondent’s defence denies those allegations and asserts that, in respects relevant to the present issue, the works required to be done were the responsibility of the applicant rather than of the respondent.  One part of the applicant’s reply and defence to cross-claim in the sub-paragraphs identified suggests, and it is a feature running through each of those named paragraphs, that there were discussions between a Mr Hendrickson of the respondent and the applicant which, independently of the agreement alleged in the third statement of claim, constituted a separate contractual arrangement.  If such a contractual arrangement is to be alleged, it should not be in the reply.  As the third statement of claim is presently expressed, the applicant will either bring the work in issue under the agreement as alleged or it will not.  Evidence of discussions might be admissible as part of the matrix of facts in which the agreement was arrived at in the case of some ambiguity.  I do not say that such evidence is admissible in this case.  I do not know.  I am not to be taken as indicating one way or the other as to whether any evidence of those matters at trial may or may not be admissible for some proper reason.  However, I do not think the applicant is entitled to set up in its reply an agreement alternative to that which it has alleged in the third statement of claim.  If it wishes to do so, and it is necessary to protect its position, it will have to address that allegation in some other way.  It is presently difficult to see why it should need to do so.  My previous observations about the process of getting its statement of claim in order no doubt resulted in it carefully considering whether its claim as initially formulated and up to the time of the third amended statement of claim did identify the basis of the agreement upon which it relies.  The respondent denies the agreement as alleged related to the work referred to.  That is a matter of identifying, and construing, the agreement.  If the applicant now wants to allege some different agreement, it should not do so in the reply, so as to give it a cause of action which it otherwise does not have.  The role of the reply is not that.  Accordingly, I strike out that part of par 30.1(e)(iii)(B) from the words “the main building” to its end, and for the same reasons I strike out par 30.1(j)(iv), the words in par 30.1(o)(i) after the reference to Mr Ente to its end, and the words in par 30.3(e)(ii).

Included in the respondent’s cross-claim is a claim for the sum of $14,268.17 and interest, alleged to be owing by the applicant to it.  The applicant admits that allegation in par 44 of its reply and defence to cross-claim.  However it alleges in par 44A of its reply and defence to cross-claim that:

“. . .

by virtue of [the respondent’s] failure to explain to the applicant prior to 2 May 1997 the basis for any suggestion that any sum was due and owing on the loan account and by its conduct related thereto it would be unconscionable for the respondent to pursue its claim . . .”

for that sum.  Very broad particulars are given of requests for information as to how that admitted debt is calculated.

The respondent complains that that plea is unknown to law.  The applicant did not, despite my invitation, refer to any legal authority in support of its proposition in par 44A of its reply and defence to cross-claim.  I know of none.  It is a surprising proposition that an admitted debt is not payable because the basis upon which it was calculated was not identified before it was demanded.  There are no particulars of facts alleged to fall within the description “its conduct related thereto”.  In my view the pleading is bad in law and in form.  I strike it out.

Similar submissions were made by the respondent in respect of par 45 of the reply and defence to cross-claim.  Paragraph 45 of the cross-claim asserts that, pursuant to the agreement between the parties, the applicant is liable to pay interest from 5 April 1995 at a specified rate to the respondent in respect of amounts owing to it by the applicant.  The applicant’s response is that the respondent’s “conduct in failing to provide the applicant with any explanation for the basis of the claim for the amount of the claim” means that the respondent is estopped from claiming interest at the rate claimed or at all.  Although it does not say so, counsel identified that as “an unconscionability argument”.  No authority was presented in support of the proposition.  No facts are pleaded to support the asserted estoppel.  No conduct is pleaded other than the failure to explain.  No reliance by the applicant on any conduct, whether the failure to explain or something else, is pleaded.  No detriment is pleaded.  In those circumstances, in my view, that paragraph of the reply is untenable and I strike it out.

Finally, par 48 of the reply and defence to cross-claim is attacked.  That paragraph asserts that the terms upon which the respondent gave credit to the applicant for fuel supplied to it were unilaterally imposed beyond the agreement between the parties.  It also asserts that there were no monies owing from time to time as alleged, or at least to the extent alleged, because of the amount of the applicant’s claim against the respondent in these proceedings as due from time to time.  I think the pleading is clear enough.  I see no reason to strike it out.  It amounts to no more than saying that the amount of the respondent’s claim, if established, will be less than the amount of the applicant’s damages on the claim, again if established.

Other matters of complaint identified by the respondent were addressed in the further particulars provided by the applicant on the eve of the hearing of these two motions, and did not therefore need to be addressed.  I record that matter simply as it may be relevant to the question of costs.

The balance of the issues on the respondent’s motion, relating to pars 9.5, 12A.1, 22 and 49 of the reply and defence to cross-claim, have been deferred until the issue as to the terms of the applicant’s third statement of claim in the light of its motion to amend is determined.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:            21 November 1997

Counsel for the Applicant:	Mr T A Gray QC with him Mr R A Cameron
Solicitors for the Applicant:	Townsends
Counsel for the Respondent:	Mr P Jopling QC with him Mr M F Bielecki
Solicitors for the Respondent:	Finlaysons
Date of Hearing:	12 November 1997
Date of Decision:	21 November 1997