Mullins v Hussey

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MULLINS -v- HUSSEY [2004] WADC 40

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 1 DECEMBER 2003

DELIVERED : 12 MARCH 2004

FILE NO/S: CIV 1331 of 2002

BETWEEN: ROSAL TANIA MULLINS
Plaintiff
AND
CHRISTOPHER JOHN HUSSEY
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike out parts of a pleading in relation to a "future matter" for the purposes of s 9 of the Fair Trading Act 1987

Legislation:

Fair Trading Act 1987

Result:

Application successful

Representation:

Counsel:

Plaintiff: Mr L Broadley
Defendant: Mr J Eastoe

Solicitors:

Plaintiff: Bennett & Co
Defendant: Jonathon Eastoe

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff's claim is for damages with respect to causes of action, which she contends, arose in the context of her purchase of a business from the defendant.
The plaintiff has filed a pleading, which by the application before me the defendant's seeks in part to strike out and in part obtain further and better particulars. By the time that the application came in for hearing the plaintiff had filed a minute of proposed amended statement of claim. It was my appreciation that the application was directed to that proposal.
The first issue taken with the pleading is the extent to which it seeks to draw upon the Fair Trading Act 1987 in presenting a case that representations made by the defendant were as to future matters within the meaning of s 9 of that Act.
It is as follows:
"(1)For the purposes of this Part, where a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the person does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2)The onus of establishing that a person had reasonable grounds for making a representation referred to in sub-section (1) is on the person.
(3)…"
At par 7 of the proposed pleading the plaintiff alleges a number of oral representations made to the plaintiff by the defendant on or about 25 February 2002.
At par 17 the plaintiff alleges that those representations were misleading and deceptive or likely to be so for the purposes of s 10 and s 22 of the Fair Trading Act.
At par 18 the plaintiff alleges a number of representations pleaded at par 7 were as to future matters for the purposes of s 9 of the Fair Trading Act.
The defendant takes issue with that allegation as it relates to pars 7.2, 7.7, 7.11, 7.12, 7.13, and 7.15, on the basis that they are insufficiently pleaded for the purposes of s 9. In particular the defendant contends that the plaintiff has failed to plead that the defendant did not have reasonable grounds for making the representations.
The only allegations in relation to which there is any pleading other than in the form of the representation and that it was misleading and deceptive is that which relates to par 7.2 and par 7.12. Paragraph 7.2 is as follows:
"On or about 25 February 2002, the Defendant orally represented to the Plaintiff that the supply of work to the Business from Spices Catering would continue after the sale of the business."
At par 14 the plaintiff alleges that on or about 8 March 2002 the defendant was informed by Spices Catering that:
"(1) Allowed (the business) to operate on a weekly basis;
(2) It may be unlikely new owners would be given weekly business to 1 July 2002."
In my opinion those pleadings do not suggest that as at 25 February 2002 the defendant did not have reasonable grounds for making the representation.
As I understand the plaintiff's case it is sufficient to plead as she has done and leave it to the defendant to assert that he did have reasonable grounds to so assert as according to the provision it would be he that bears the onus.
In my opinion the defendant will only carry the onus if the plaintiff brings herself within the terms of the section. In order to do so she must satisfy its terms. I apprehend that the plaintiff may be reticent to do so as she may then be expected to provide particulars of that allegation. In my opinion that is not the correct analysis. Patently the only reason for the plaintiff to so plead is to bring herself within the scope of the provision. Particulars only serve one purpose and that is to limit the scope of the case that the pleading party seeks to put. The plaintiff does not seek to put any other case than one which puts the onus on the defendant. In short she does not intend to put a case at trial, only to respond to any case put by the defendant. The provision is so unusual that it distorts the practice in relation to pleading and particulars.
Paragraph 7.12 is as follows:
"… the Defendant would transfer his telephone number to the purchaser of the Business at settlement because of the continual telephone calls he received for work with coffee carts;"
At par 21.4 the plaintiff pleads that in breach of the agreement pleaded at par 12 and par 13 the defendant did not transfer his telephone number to the purchaser of the business. The relevant dates for the pleas are a month apart.
In my opinion thereby there is no plea that at the time of the representation the defendant did not have reasonable grounds to make the representation. In the absence of a plea that the defendant did not have reasonable grounds for making the representation the pleading is insufficient to come within s 9 of the Act.
As to the other paragraphs, there being no other pleading remotely relevant, it follows that the result must be the same.
The issue raised by the defendant in relation to those paragraphs is significant. Unless the plaintiff brings a case within s 9, under the convention she would carry the onus is on the plaintiff to prove the allegation at trial. She expresses that she comes within s 9 but the pleading is insufficient.
The next part of the pleading the subject of the defendants attack is at par 19 where the plaintiff pleads that had the defendant informed the plaintiff of the true position of the business and the matters referred to in par 14 (the notice from Spices Catering) the plaintiff would not have preceded with the purchase of the business.
The first issue taken by the defendant is that it is not clear whether the two parts of the case are put as alternatives. In relation to the first part, the pleading does not explain what the plaintiff means by the term "the true position". The second part depends up the defendant's receipt of the letter from Spices Catering on a date after the parties were contractually bound. However, the case is interpreted, the plaintiff pleads that she would not have proceeded with the purchase of the business. Further, it is not clear at what point the plaintiff claims that she would not have proceeded with the purchase of the business.
As to the first case, it suggests that the defendant should have informed the plaintiff of "the true position" at some point after the representations had been made but prior to settlement. It is not clear what that term "the true position" is intended to convey. On an overview of the pleading it is difficult appreciate the extent to which the complaints evident on the pleading might be attributable to the character of the representations the subject of the action.
As to par 19.2 the case is clearer as it identifies the defendant's lack of knowledge as a discrete fact. However, there is no pleading that the defendant did not inform the plaintiff of the matters referred to at par 14 or was obliged to do so.
The next pleading the subject of attack is par 20 at which the plaintiff alleges that further or in the alternative to par 19, by reason of the alleged misleading or deceptive conduct of the defendant the plaintiff has suffered loss. The particulars of loss limit the scope of the plaintiff's case firstly to the payment of $140,000 for the business that had no, alternatively little, value.
It seems to me that the plaintiff thereby simply puts the case for the loss of all or most of the amount paid for the business.
The second particular of loss is that in the conduct of the business the plaintiff has sustained loss and anticipates ongoing loss.
I make the same observation.
The next attack made on the pleading is in relation to par 22. The plaintiff pleads loss attributed to breach of contract alleged at par 21. At par 21.1 the plaintiff pleads that the defendant did not work with the plaintiff in the operation of the business after settlement of the sale of business. It apparently responds to allegations expressed at par 13.3 and par 13.4, to the effect that the defendant would remain in the business at no cost to the plaintiff, for a period of one month to familiarise the plaintiff with the nature and running of the business and that pursuant to a special condition the defendant would be available to give advice to the plaintiff after a settling in period at a rate to be agreed. Paragraph 21.1.1 does not identify the term breached.
At par 21.2, the plaintiff pleads that the defendant was not available to give advise to the plaintiff. Again conceivably the relevant term is at par 13.4 however there is no allegation that the rate to be agreed was agreed or that there was any process entered into between the parties to that end.
At par 21.3 the plaintiff pleads that the defendant did not assist the plaintiff with arrangements for the 2002 Royal Show. It conceivably responds to par 13.5, which provides for a special condition that the defendant would assist the plaintiff with the set-up at the 2002 Royal Show.
At par 21.4 the plaintiff pleads that the defendant did not transfer his telephone to the plaintiff at settlement or at all. There is no reference in the terms of the agreement to any such transfer at any time. I note that at par 7.12 such a transfer is included in the pleading as a representation or nothing more.
It follows that in my opinion that the plaintiff ought not be entitled to plead in terms of the references in par 18 to pars 7.2, 7.7, 7.11, 7.12, 7.13 and 7.15. Further that she should not be entitled to plead in the terms of par 19 and par 21.

[2004] WADC 40

12 March 2004