Murdoch University v Comprehensive Education Centre Pty Ltd
[2003] WASC 161
MURDOCH UNIVERSITY -v- COMPREHENSIVE EDUCATION CENTRE PTY LTD & ORS [2003] WASC 161
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 161 | |
| Case No: | CIV:2516/2002 | 3 JULY 2003 | |
| Coram: | MASTER SANDERSON | 26/08/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MURDOCH UNIVERSITY COMPREHENSIVE EDUCATION CENTRE PTY LTD MURDOCH COLLEGE PROPERTIES PTY LTD MURDOCH COLLEGE (INC) MUNJO CORPORATION PTY LTD GOTHAM NOMINEES PTY LTD |
Catchwords: | Practice and procedure Application to strike out statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Boranga v Flintoff (1997) 19 WAR 1 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Taylor v Johnson (1983) 151 CLR 422 Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Permanent Building Society v Wheeler (1992) 10 WAR 109 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COMPREHENSIVE EDUCATION CENTRE PTY LTD
First Defendant
MURDOCH COLLEGE PROPERTIES PTY LTD
Second Defendant
MURDOCH COLLEGE (INC)
Third Defendant
MUNJO CORPORATION PTY LTD
GOTHAM NOMINEES PTY LTD
Fourth Defendants
Catchwords:
Practice and procedure - Application to strike out statement of claim - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr M J McCusker QC & Ms P E Cahill
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendants : Mr M J McCusker QC & Ms P E Cahill
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Jackson McDonald
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendants : Jackson McDonald
Case(s) referred to in judgment(s):
Boranga v Flintoff (1997) 19 WAR 1
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Taylor v Johnson (1983) 151 CLR 422
Case(s) also cited:
Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140
(Page 3)
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Permanent Building Society v Wheeler (1992) 10 WAR 109
(Page 4)
1 MASTER SANDERSON: This is the first and fourth defendants' application to strike out the plaintiff's amended statement of claim filed 17 March 2003. When the application was called on for hearing on 6 June 2003 the parties agreed that the first and fourth defendants' difficulties with the statement of claim might be resolved if the plaintiff provided further and better particulars of par 13 and 14 of the pleading as it was ordered to do by Registrar Rimmer on 19 March 2003. On that basis the matter was adjourned. The plaintiff provided answers dated 27 June 2003. Regrettably, the provision of those answers did not resolve the differences between the parties and the first and fourth defendants maintained their objection to the form of the plaintiff's pleading.
2 The first six paragraphs of the statement of claim identify the parties. Relevantly, the plaintiff is a tertiary education institution located in the suburb of Murdoch. The first defendant, it is pleaded, until September 1999 carried on business under the name "Beaufort College" and thereafter under the name "Murdoch College International" (see par 2.2 and 2.3). The fourth defendants are said to be shareholders in the first defendant (see par 5.2 and 6.2). Paragraph 7 of the statement of claim identifies one Barry George Gregory ("Gregory") as inter alia, a director of each of the first and fourth defendants. Paragraphs 7.6 and 7.7 plead that Gregory was a director and shareholder of a company styled Catona Pty Ltd and was in effective control of that company. The first and fourth defendants object to par 7.6 and 7.7. They say both subparagraphs are irrelevant. The plaintiff says that these two subparagraphs are relevant because of particulars pleaded in par 23.8 and 23.9 of the amended statement of claim. Paragraph 23 deals with what the plaintiff says is, at least in the alternative, a proper construction of a term used in an agreement pleaded in par 17. Paragraphs 23.8 and 23.9 are particulars which are said to support the contention as to the meaning contended for by the plaintiff. I am satisfied that the pleas in subpar 7.6 and 7.7 are relevant on that basis. Even if that were not the case, it is hardly necessary that the subparagraphs be struck out. They are not so poisonous or mischievous as to give rise to a false issue which might delay the trial of this action. They are peripheral matters of no great consequence which can simply be admitted or denied and which, in the scheme of things, will occupy no time at all at trial.
3 By par 8 the plaintiff pleads that from August 1997 to June 1998 it held discussions with the first defendant with a view to establishing a joint venture to run a purpose-built secondary school on the campus of the plaintiff. By par 9 it is said that Heads of Agreement to give effect to this joint venture were entered into. Paragraph 10 pleads certain express terms
(Page 5)
- of the Heads of Agreement and by par 11 it is pleaded that in October 1998 the Senate of the plaintiff resolved to authorise the Vice-Chancellor of the plaintiff to commit the plaintiff to certain contractual agreements with the first defendant to develop a secondary college, subject to certain terms and conditions. By par 12 it is said that from October 1998 until September 1999 the plaintiff and the first defendant negotiated with respect to formal documentation to give effect to their joint venture. The first and fourth defendants say these five paragraphs are, on any view of the matter, irrelevant. The plaintiff says that the paragraphs plead some of the material facts comprising the objective factual matrix leading up to, and surrounding the entry into, the agreement referred to in par 17. I will deal with this issue once I have said something more about the nature of the agreement the plaintiff says was reached between the parties.
4 Paragraphs 13 and 14 are of particular importance and I will quote each in full:
"13. In December 1998, as part of the negotiations referred to in paragraph 12 hereof, the Plaintiff and First Defendant orally agreed that the use of the term 'post-secondary' in each of the agreements under negotiation meant university 'fast-tracking'.
Particulars
The oral agreement was made at a meeting on 8 December 1998 attended by representatives of the Plaintiff and representatives of the First Defendant.
University 'fast-tracking' meant and means the opportunity for year 12 students to take first year university units whilst enrolled in year 12. The students receive credit and exemptions for these units if and when they enrol at University.
14. In the alternative to paragraph 13, on 8 December 1998, the First Defendant orally represented to the Plaintiff that the term 'post-secondary education' in each of the agreements was restricted to university 'fast tracking'.
Particulars
The Plaintiff repeats the particulars to paragraph 13."
(Page 6)
5 The first and fourth defendants requested particulars of these two paragraphs. Request 1(a) asked:
"What is meant by the word 'agreed' in paragraph 13, ie is the word used in its non-legal meaning or is this a plea of a contract?"
6 To this the plaintiff responded that the word "agreed" was used "in its non-legal meaning". The remainder of this request for particulars sought to have the plaintiff identify where the meeting took place, who was present and what words were said. To this last request the plaintiff replied as follows:
"(d) Mr McIntyre, on behalf of the Plaintiff, asked Mr Gregory and Mr Nelligan on behalf of the First Defendant of (sic) what was meant by the term 'post secondary' in the agreements.
Mr McIntyre said words to the effect that if this term referred to University 'fast tracking', the University was happy to include it in the agreement. Mr McIntyre said words to the effect that the University's preference was for the agreements to clearly define what it was licensing for the use of the University's name and image and the University recognised that the documents were a mechanism intended to extract legitimate profits from the venture for the University.
Mr Nelligan or Mr Gregory on behalf of the First Defendant said words to the effect that the term 'post secondary' was used to make clear that the school was not going to offer secondary school subjects but intended to capitalise on its connection with the University by offering products not available within a conventional secondary school such as University fast-tracking.
Mr McIntyre responded by saying words to the effect that the University was happy to use the term in that manner."
(Page 7)
- and in par 17A. The plea which introduces these individual agreements is in the following terms:
"17. In reliance upon the oral agreement referred to in paragraph 13 hereof and in the continuing belief that each of the agreements reflected the oral agreement, alternatively in reliance upon the representation referred to in paragraph 14 hereof, … (the plaintiff entered into certain agreements)."
9 The plaintiff, for its part, say that the paragraphs do not set out the intentions of the plaintiff. Rather, it says, that what is pleaded is conduct on the part of both parties which may assist the court in resolving any ambiguity in the agreements. Further, it says, that the material pleaded in these paragraphs is directly relevant to the pleaded issue of common mistake found in par 24 of the statement of claim. The plaintiff further says par 11 is relevant to the issue of unilateral mistake pleaded in par 24.3 to 24.7 of the amended statement of claim. Paragraphs 15 and 16 are also said to be relevant to the issue of common mistake.
10 On any view of the matter it can hardly be said that these paragraphs are likely to embarrass the defendants or give rise to a false issue at trial. What clearly emerges from the pleading is that the plaintiff contends for a version of the contract between the parties which the defendants do not accept. That is why there is, in the prayer for relief, a claim for a declaration as to the proper construction of the term "post-secondary" as it is used in each of the agreements referred to in par 17. As an alternative, there is a plea for rectification. In the circumstances, it seems to me that the plaintiff is entitled, if not obliged, to plead the circumstances leading to the conclusion of the agreements referred to in par 17. It is, with respect, idle to anticipate that at trial no evidence will be led as to the circumstances leading up to the conclusion of the agreement between the parties. Even if this evidence is eventually excluded because the trial Judge determines that there is no ambiguity in the agreement reached between the plaintiff and the defendants, and therefore no evidence is
(Page 8)
- admissible as to the surrounding circumstances, that decision is likely to be taken only after all of the evidence has been led. It is far better for the plaintiff to plead, at an early stage, matters which it says are relevant therefore warning the defendants of the case that they have to meet. That way no-one is taken by surprise and all necessary evidence can be led at trial. I am not satisfied that there is any grounds for the first and fourth defendants' objections to par 8 through to 16.
11 By par 18 it is pleaded that the agreements referred to in par 17 and 17A "collectively" provided for the establishment and operation of a secondary educational institution known as "Murdoch College". The first and fourth defendants say that this plea is irrelevant. With respect, the paragraph seems to me to draw together the various agreements pleaded in par 17 and 17A and is a proper plea of material fact. I would not strike it out.
12 Paragraphs 19, 20 and 21 plead various terms of agreements pleaded in par 17. No objection is taken to these paragraphs.
13 By par 22 the plaintiff pleads what it says on a proper construction is the meaning of the term "post-secondary" found in each of the agreements pleaded in par 17. The first and fourth defendants complain that the basis for this "proper construction" is not pleaded. With respect, that seems to be the very point of matters pleaded in par 8 through to 16. While par 18 may have been expressed a little more clearly, the first and fourth defendants could hardly have been in any doubt as to what the plaintiff means. I am satisfied that par 22 is a proper plea.
14 Paragraph 23 is an alternative plea to par 22. The plaintiff says if the meaning of the term "post-secondary" is not as contended for in par 22, then it is ambiguous and having regard to the factual matrix, the term has the meaning as pleaded. Particulars of this plea are provided in par 23.1 through to 23.11.
15 In objecting to this paragraph, the first to fourth defendants say it is embarrassing because what is said to be the objective factual matrix is in fact a plea of the intention of the parties. Further, they say that post-contractual conduct cannot be relevant to ascertain the meaning of a term of the contract. I have already dealt with the pleas to be found in par 8 through to 16. I need say nothing further on that issue. As to the relevance of post-contractual conduct in resolving language that is ambiguous, the plaintiff refers to Boranga v Flintoff (1997) 19 WAR 1, per Parker J at 6 and Hide & Skin Trading Pty Ltd v Oceanic Meat
(Page 9)
- Traders Ltd (1990) 20 NSWLR 310 per Kirby P (as he then was) at 316. Without considering this matter further, it is sufficient if I say that I am satisfied that the plaintiff's position on post-contractual conduct is arguable. On that basis I would not be prepared to strike out all or any parts of par 23.
16 Paragraph 24 is an alternative plea to par 22 and 23. It sets up the plea of common mistake. A number of the objections taken by the first and fourth defendants relate to the plaintiff's failure to provide particulars to par 13 - par 13 being referred to on a number of occasions in par 24. As the particulars have now been provided, this objection falls away. Furthermore, I am satisfied that the plea in par 24 is, in all respects, proper and appropriate. It follows the requirements for a plea of mistake as set out in Taylor v Johnson (1983) 151 CLR 422 per Mason ACJ, Murphy and Deane JJ at 432. I am satisfied that par 24 can stand.
17 The first and fourth defendants also objected to par 25 and par 28 to 30 and par 34. All of these objections picked up objections made to earlier paragraphs and raised no new issues. Given that I am satisfied that the earlier paragraphs can stand, I am also satisfied that there is no substance to these objections.
18 In all the circumstances I am satisfied that the amended statement of claim is in a proper form. I would dismiss the first and fourth defendants' application. The first and fourth defendants ought pay the costs of this application, including the reserved costs.
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