Newman Consulting Pty Ltd (ACN 061 149 540) as Trustee of the Newman Unit Trust v Clough Engineering Ltd

[2001] WASC 96

NEWMAN CONSULTING PTY LTD (ACN 061 149 540) as Trustee of THE NEWMAN UNIT TRUST -v- CLOUGH ENGINEERING LTD [2001] WASC 96

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 96
Case No:	CIV:1488/1999	Heard:	5 APRIL 2001
Coram:	MASTER SANDERSON	Delivered:	12/04/01
No of pages:	14	Judgment Part:	1 of 1
Result:	Leave to amend granted
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Parties:	NEWMAN CONSULTING PTY LTD (ACN 061 149 540) as Trustee of THE NEWMAN UNIT TRUST CLOUGH ENGINEERING LTD (ACN 009 093 869)
Catchwords:	Practice and procedure Application to amend statement of claim Turns on own facts
Legislation:	Nil
Case References:	Breen v Williams (1996) 186 CLR 71 Kelner v Baxter [1866] LR 2 CP 174 The Wik Peoples v The State of Queensland (1996) 187 CLR 1 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Bristol and West BS v Mothew [1996] 4 All ER 698 British Bank of Foreign Trade Ltd v Novinex Ltd [1949] 1 KB 623 Carter v Furmston, Good Faith and Fairness in the Negotiation of Contracts (1994) 8 JCL 1 Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 Davison v Vickery's Motors Ltd (1926) CLR 1 Donoghue v Stevenson [1932] AC 562 F & G Sykes (Wessex) Ltd v Fine Fare Ltd [1967] 1 Lloyd's Rep 53 Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) ALR 500 Floral Holdings Ltd v Rothmans Industries Ltd (1986) 3 NZLCL 99 Hall v Busst (1960) 104 CLR 206 Huston v Burns [1955] Tas SR 3 March v E & M H Stamare Pty Ltd (1991) 171 CLR 506 NM Superannuation Pty Ltd v Hughes (1992) 10 ACLC 477 Oxford v Provand (1868) LR 2 PC 135 Pavey and Matthews Pty Ltd v Paul (1986) 162 CLR 221 Simonius Vischer & Co v Hold [1979] 2 NSWLR 322 Thomas v Atherton (1989) 10 Ch D 185 Thorby v Goldberg (1964) 112 CLR 597 Warehousing and Forwarding Co of East Africa Ltd v Tipperary and Sons [1963] 3 All ER 571 Watson v Davies [1931] 1 Ch 455 Wenham v Ella (1972) 127 CLR 454 York Airconditioning and Refrigeration (A'sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NEWMAN CONSULTING PTY LTD (ACN 061 149 540) as Trustee of THE NEWMAN UNIT TRUST -v- CLOUGH ENGINEERING LTD [2001] WASC 96 CORAM : MASTER SANDERSON HEARD : 5 APRIL 2001 DELIVERED : 12 APRIL 2001 FILE NO/S : CIV 1488 of 1999 BETWEEN : NEWMAN CONSULTING PTY LTD (ACN 061 149 540) as Trustee of THE NEWMAN UNIT TRUST

Plaintiff

AND

CLOUGH ENGINEERING LTD (ACN 009 093 869)
Defendant

Catchwords:

Practice and procedure - Application to amend statement of claim - Turns on own facts

Legislation:

Nil

Result:

Leave to amend granted

(Page 2)

Representation:

Counsel:

Plaintiff : Mr R W Bower
Defendant : Mr R J Price

Solicitors:

Plaintiff : Corsers
Defendant : Freehills

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

Breen v Williams (1996) 186 CLR 71
Kelner v Baxter [1866] LR 2 CP 174
The Wik Peoples v The State of Queensland (1996) 187 CLR 1

Case(s) also cited:

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
Bristol and West BS v Mothew [1996] 4 All ER 698
British Bank of Foreign Trade Ltd v Novinex Ltd [1949] 1 KB 623
Carter v Furmston, Good Faith and Fairness in the Negotiation of Contracts (1994) 8 JCL 1
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
Davison v Vickery's Motors Ltd (1926) CLR 1
Donoghue v Stevenson [1932] AC 562
F & G Sykes (Wessex) Ltd v Fine Fare Ltd [1967] 1 Lloyd's Rep 53
Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) ALR 500
Floral Holdings Ltd v Rothmans Industries Ltd (1986) 3 NZLCL 99
Hall v Busst (1960) 104 CLR 206
Huston v Burns [1955] Tas SR 3
March v E & M H Stamare Pty Ltd (1991) 171 CLR 506
NM Superannuation Pty Ltd v Hughes (1992) 10 ACLC 477
Oxford v Provand (1868) LR 2 PC 135
Pavey and Matthews Pty Ltd v Paul (1986) 162 CLR 221


(Page 3)

Simonius Vischer & Co v Hold [1979] 2 NSWLR 322
Thomas v Atherton (1989) 10 Ch D 185
Thorby v Goldberg (1964) 112 CLR 597
Warehousing and Forwarding Co of East Africa Ltd v Tipperary and Sons [1963] 3 All ER 571
Watson v Davies [1931] 1 Ch 455
Wenham v Ella (1972) 127 CLR 454
York Airconditioning and Refrigeration (A'sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11

(Page 4)

1 MASTER SANDERSON: This is the return of a pleading summons. By summons dated 5 February 2001 the defendant applied to strike out the plaintiff's amended statement of claim. The amended statement of claim had been filed without leave pursuant to O 21 r 3(1) of the Rules of the Supreme Court 1971. The defendant's application was, strictly speaking, brought under O 21 r 4. Faced with the defendant's objection to the form of its amended statement of claim the plaintiff filed a minute of proposed re-amended statement of claim dated 22 March 2001. By summons dated 4 April 2001 the plaintiff applied for leave to amend the statement of claim in the form of the minute of re-amended statement of claim. By virtue of an agreement between the parties the matter proceeded on the basis of the plaintiff's chamber summons. The question then was whether the plaintiff should be permitted to amend its statement of claim in terms of the minute of proposed re-amended statement of claim ("the minute").

2 It should be said at the outset that this is not a simple case and it has produced a pleading of some complexity. The minute runs to 44 pages and 66 separate paragraphs. Furthermore, this is not a case where the defendant says that the pleading is unintelligible or confused. Rather, the defendant says that the form of the pleading simply does not disclose a cause of action. The claim itself, were it to proceed, would involve a great deal of evidence of a highly technical nature regarding mining operations. The defendant says, quite rightly, that if it is to be put to the expense and time of defending an action such as this, then the pleadings must disclose a cause of action. The defendant says its complaints are matters of real substance and go to the heart of the plaintiff's claim.

3 The first five paragraphs of the minute identify the parties. It is important to note that the plaintiff was incorporated on 30 July 1993: See par 2. Central to the dispute between the parties is what is generally called a pre-incorporation contract. The plaintiff says that this pre-incorporation contract was negotiated by three individuals, Mr Ivan Mrsa ("Mr Mrsa"), Mr John Allen Linke ("Mr Linke") and Mr George Martinich ("Mr Martinich"): See par 3. By par 6 it is said that in April 1993 Mr Mrsa was invited by BHP Iron Ore Ltd ("BHP") to submit two tenders for certain contract mining works in respect of operations known as the Jimblebar Project and the Ore Bodies 23 & 25 Project. By par 7 it is pleaded that a joint venture agreement was concluded by Mr Mrsa and Mr Linke "on behalf of the company" and the defendant to tender for the two Projects. Paragraph 7 sets out in some detail the terms of the joint venture agreement. By par 8 it is pleaded that if the joint venture agreement had not been agreed between the parties in April 1993 it was concluded in May 1993. By par 9 and par 10 it is said that certain terms

(Page 5)

were implied in the joint venture agreement. By par 11 it is pleaded that if no joint venture agreement was reached between the parties then the parties entered into a partnership agreement essentially on the same terms and conditions as are pleaded with respect to the joint venture agreement.

4 By par 12 and par 13 it is pleaded that tenders were submitted by the joint venture/partnership and that the joint venture/partnership was awarded the Jimblebar contract by BHP. It is pleaded that the contract was awarded by BHP on or about 9 June 1993. The structure of the plaintiff's pleading up to this point is easily understood. A joint venture/partnership agreement was negotiated by three individuals with the defendant. It was anticipated that a tender would be lodged for certain mining work and if that tender was successful, a company would be formed which would facilitate the joint venture/partnership. In June 1993 the tender was accepted, in part, and subsequently the company (the plaintiff) was formed. The company then ratified the agreement between the three individuals and the defendant. This is pleaded in par 4 of the minute which is in the following terms:

"Upon its incorporation, the Plaintiff ratified, accepted, or confirmed all the acts and comments of Mr Mrsa, Mr Linke and Mr Martinich performed or made by them on its behalf in their dealings with the Defendant."

5 Prior to 1982 it was not open to a company to ratify or assume the benefit of a contract made prior to its incorporation: See Kelner v Baxter [1866] LR 2 CP 174. That position was altered by s 81 of the National Companies Code which became law on 1 July 1982. By 1993 the operative provisions were to be found in s 183 of the Uniform Companies Code. Essentially this authorised a corporation within a reasonable time to ratify a pre-incorporation contract and to take the benefit under that contract: See s 183(3). There is no dispute between the parties that the plaintiff in this case could ratify any pre-incorporation agreement negotiated between Mr Mrsa, Mr Linke and Mr Martinich and the defendant, with the effect that there would be a binding agreement between the plaintiff and the defendant. But the matter does not end there.

6 By par 54 through to par 61 of the minute, the plaintiff claims that the defendant engaged in unconscionable conduct. Because of the importance of these paragraphs I will quote them in full (omitting the marking up of amendments and the particulars of knowledge provided in par 59.7):

(Page 6)

"54. On or about 13 May 1993 or alternatively 25 May 1993, a few hours prior to the submission of the tenders to BHP and at the offices of the Defendant in Perth, the Defendant by Mr Knight orally informed the Plaintiff by Mr Mrsa that the Defendant required the terms of the JVA, or alternatively the Partnership Agreement, to be varied in the following manner:

54.1 the Defendant would receive an extra payment of up to 4% of the tender price of the Contract(s);

54.2 the profit would be split between the parties on the basis that the Defendant would receive 66.66% and the Plaintiff 33.33%

('the Varied Terms')

and presented to Mr Mrsa on behalf of the Plaintiff for execution a Pre-Bid Agreement ('the Pre-Bid Agreement') containing the above varied terms and a further varied term ('the Further Varied Term') contained in clause 6 of the Pre-Bid Agreement which stated that 'Each party shall be responsible to contribute in cash in proportion to its respective participating interest its share of any capital and working funds needed for the performance of the works. If one party provides all the funds then the interest on these funds will be a project cost.'


55. Mr Knight at the same time informed Mr Mrsa that the Defendant would not proceed with the JVA or alternatively the Partnership Agreement if Mr Mrsa did not, on behalf of the Plaintiff, agree to the Varied Terms and if it did not execute the Pre-Bid Agreement.

56. The Further Varied Term was directly contradictory to the terms agreed between the Plaintiff and the Defendant and specifically to the term as pleaded in paragraph 7.5.4 above.

57. Mr Mrsa and Mr Knight never discussed the Further Varied Term.

(Page 7)

58. Although the Pre-Bid Agreement referred in its clause 2 to an annexure marked 'A', there was no annexure marked 'A' to the Pre-Bid Agreement at the time it was executed by Mr Mrsa on behalf of the Plaintiff, as it was, against the Plaintiff's will.

59. At the time the Defendant informed Mr Mrsa of the Varied Terms and presented the Pre-Bid Agreement containing the Varied Terms and the Further Varied Term to him for execution, the Defendant was aware or ought to have been aware that the Plaintiff (through Mr Mrsa, Mr Linke, and Mr Martinich) was at a serious or special disadvantage vis-à-vis the Defendant and that the Plaintiff was not in a position to reject the Varied Terms or to refuse to execute the Pre-Bid Agreement by reason of the following matters and circumstances:-


59.1 the tenders which Mr Mrsa, Mr Linke and Mr Martinich were urgently finalising had to be submitted to BHP in a matter of hours, failing which they would not be accepted by BHP;

59.2 the Defendant did not give the Plaintiff prior notice of its intention to vary the terms of the JVA or alternatively the Partnership Agreement in order to afford the Plaintiff reasonable time to consider any proposed variations;

59.3 the Plaintiff would not have sufficient time to secure an alternative joint venture partner or partner with whom it could tender for the Contracts if it did not agree to the Varied Terms and further or alternatively to the Further Varied Term;

59.4 the Plaintiff was only a small company with three employees, being Mr Mrsa, Mr Linke and Mr Martinich, and without any substantial financial resources. Accordingly, it was unable to tender for the Contracts on its own due to its limited financial resources and was entirely dependant on a financially strong joint venturer or partner such as the Defendant to tender with it for

(Page 8)

the Contracts, and to join it in performing the Works;

59.5 the Plaintiff by Mr Mrsa, Mr Linke and Mr Martinich, had invested a substantial amount of time, and had incurred substantial expense, in preparing the tenders, and was not in a position to withdraw from the tender process even it if did not wish to agree to the Varied Terms and to execute the Pre-Bid Agreement;

59.6 Mr Mrsa, who was representing the Plaintiff, was at the time in a precarious financial position, and was dependent on the tenders, or one of them, being successful to improve his personal financial position;

59.7 Mr Linke and Mr Mrsa of the Plaintiff were personally acquainted with relevant decision-makers at BHP, and their reputation and credibility with BHP and the industry in general would have been damaged if the tenders were not submitted by the due date and time, and consequently the Plaintiff would have lost its credibility with BHP and the industry in general, and its reputation would have been severely damaged, if the tenders were not submitted by the due time and date.

60. By reason of the matters pleaded in paragraphs 54, 57 and 59 above, the Defendant unconscionably took advantage of the opportunity and used its superior position and the trust reposed in it by the Plaintiff to force Mr Mrsa, on behalf of the Plaintiff to agree to the Varied Terms and the Further Varied Term to the Plaintiff's disadvantage.

61. By reason of the matters pleaded in paragraphs 54 to 59 above, the Varied Terms and the Further Varied Term and the Pre-Bid Agreement (insofar as it contradicts the JVA or alternatively the Partnership Agreement) are void and liable to be set aside."

7 It was submitted on behalf of the defendant that the effect of the execution of the Pre-Bid Agreement was to bring to an end any joint

(Page 9)

venture agreement/partnership reached in April or May of 1993 as pleaded in par 7 and par 8 of the minute. It was submitted that on the plaintiff's case the terms of any agreement between the parties incorporated the Pre-Bid Agreement and any pleading which alleged an agreement with terms inconsistent with the Pre-Bid Agreement could not stand. Hence the defendant sought to strike out par 5 through to par 8, par 10 through to par 19, par 20, par 33, par 34 and par 36 to par 38 of the minute. (Paragraph 12 to par 20, par 33, par 34 and par 36 to par 38 deal with alleged breaches of the joint venture agreement/partnership.)

8 The plaintiff did not dispute that it was open to the defendant to withdraw from the pre-incorporation agreement at any time prior to the agreement's ratification by the plaintiff. But, it was submitted, the plaintiff had not pleaded that the defendant had withdrawn from the pre-incorporation agreement. Rather, it was said, the plaintiff pleaded that the defendant had attempted by the Pre-Bid Agreement to vary the pre-incorporation agreement. The plaintiff claims that in foisting the Pre-Bid Agreement on Mr Mrsa in the circumstances pleaded, the defendant behaved unconscionably and the Pre-Bid Agreement was void and of no effect. That left the joint venture agreement/partnership negotiated pre-incorporation in place and it was that agreement which was ratified by the plaintiff. The agreement then between the parties is the joint venture agreement/partnership shorn of any of the provisions of the Pre-Bid Agreement.

9 To an extent, the pleading in par 54 through to par 61 anticipates matters which might be raised in the defence. After all, the plaintiff says that the agreement between the parties is the joint venture agreement/partnership pleaded in par 7 and par 8 of the minute. If the defendant says that the contractual relationship between the parties incorporates the Pre-Bid Agreement, then it is up to them to plead that in the defence and the plaintiff can deal with that in its reply. However, by par 1 of the prayer for relief the plaintiff seeks a declaration that the terms of the Pre-Bid Agreement are void. As substantive relief is claimed in relation to the Pre-Bid Agreement it is appropriate that it is dealt with in the statement of claim and not in the reply.

10 On balance I am satisfied that the plaintiff's case is arguable. Even if as is argued by the defendant the Pre-Bid Agreement amounted to a withdrawal by the defendant from the pre-incorporation joint venture agreement/partnership, it is arguable in the circumstances pleaded by the plaintiff the defendant would be prevented from relying upon that conduct. Whether that would amount to an estoppel or whether the proper

(Page 10)

order would be that the Pre-Bid Agreement is void is open to question. But that is a matter of the available remedy and is not an issue on a pleading summons. In my view the plaintiff's case is reasonably arguable and I would allow the pleading to stand.

11 I am of the view that par 4 of the minute does require some amendment. As it reads at the moment, all acts of Mr Mrsa were ratified by the plaintiff subsequent to its incorporation. This would include the execution of the Pre-Bid Agreement. It is implicit in the pleading that if this Pre-Bid Agreement is to be declared void, then there is nothing to ratify and the plaintiff would not be in any way bound. However, in my view par 4 should make this explicit. It is a minor matter and something rather more of form than substance. However, given the plaintiff concedes some further amendment will be necessary to the minute, this is a matter which should be clarified.

12 The plaintiff also claims against the defendant for breach of fiduciary duty. This pleading is to be found in par 28 through to par 35 of the minute. For present purposes it is enough if I quote par 28 through to par 34 to illustrate the way in which the plaintiff pleads its case against the defendant. (Once again, the marking up of these paragraphs in the minute has been ignored and par 30 and par 33 have been shorn of their particulars):

"28. Further, by virtue of the relationship between the Plaintiff and the Defendant, the Defendant owed to the Plaintiff fiduciary duties ('the Duties'):

28.1 not to act against the best interests of the JVA or alternatively the Partnership;

28.2 of good faith and fair dealing;

28.3 to avoid situations in which its interests would conflict with those of the JV or alternatively the Partnership; and

28.4 not to make a profit at the expense of the JV or alternatively the Partnership.


29. The Duties required the Defendant to ensure that equipment which was not the same as, or similar to, the equipment described in the CED, and which equipment was not necessary for the performance of the Works of

(Page 11)

the Jimblebar Project, was not procured or hired by the JV or alternatively the Partnership for the performance of the Works.

30. In breach of the Duties

the Defendant caused the JV or alternatively the Partnership to lease or hire from the Defendant unsuitable equipment which was not the same as, or similar to, the equipment described in the CED, and which equipment was not required or necessary for the performance of the Works of the Jimblebar Project, and the Defendant charged the JV or alternatively the Partnership for this equipment.

31. By reason of the Defendant's breach of the Duties as set out in paragraph 30 above, the Defendant caused the JV or alternatively the Partnership to incur unnecessary expense in

paying for equipment which was not the same as, or similar to, the equipment required by the JV or alternatively the Partnership as set out in the CED, and which equipment was not necessary or required for the performance of the Works;

32. By reason of the Defendant's breach of the Duties as set out in paragraph 30 above, the Defendant made a profit, or alternatively, obtained income, at the expense of, and to the detriment of, the JV or alternatively the Partnership.

33. By reason of the Defendant's breach of the Duties, the Plaintiff has suffered loss and damage.

34. Further, and in the alternative to paragraphs 26 and 27, by charging to the JV or alternatively the Partnership the costs of certain additional corporate overheads (over and above those agreed by the parties and as set out in the CED) without the agreement of the Plaintiff, the Defendant breached the Duties. The Plaintiff repeats the Particulars of Additional Corporate Overheads contained in paragraph 26."

(Page 12)

13 It was submitted on behalf of the defendant that the duties pleaded were positive duties and that the duties owed by a fiduciary were passive in nature and could never amount to positive obligations. Reference was made by counsel to Breen v Williams (1996) 186 CLR 71 at 113 and 137 - 138.

14 Counsel for the plaintiff submitted that properly considered what were pleaded were prescriptive obligations - that is, the duty on the defendant not to charge additional corporate overheads and not to lease or hire unsuitable equipment. It was further submitted that the nature of the fiduciary obligations arose from the relationship between the parties which was a matter to be determined at trial. It was submitted that it was at least arguable that the pleaded facts could give rise to the alleged duties and that the paragraphs ought not be struck out.

15 In my view the pleading in its present form can stand. The authorities make it plain that the nature of the fiduciary duties which arise between parties is dependent upon the circumstances of their relationship: See The Wik Peoples v The State of Queensland (1996) 187 CLR 1 per Brennan CJ at 95 - 96. In my view it is appropriate that at trial the nature of the relationship between the parties should be determined and the fiduciary obligations, if any, which arise consequent upon that relationship should also be determined. For the present I am satisfied that the plaintiff's claim is arguable.

16 The plaintiff also claims against the defendant in negligence. The nature of the plaintiff's claim and the objection the defendant raises to the pleading can be illustrated by quoting part of par 36 of the minute. It reads as follows:

"36. Further and/or alternatively, by virtue of the relationship between the Plaintiff and the Defendant, the Defendant owed to the Plaintiff a duty of care ('the Duty of Care'):

36.1 to ensure that only equipment which the JV or alternatively the Partnership required for the performance of the Works of the Jimblebar Project was hired and/or purchased by the JV or alternatively the Partnership and used to perform the said Works.

36.2 to ensure that the Jimblebar Project Works and the Upgrade were managed and performed by

(Page 13)

competent persons or persons who were experienced in the contract mining industry;

… "

17 The defendant says that the duty of care is formulated on the basis that the duties are absolute and not tortious duties. The nature of the tortious duty owed by the defendant to the plaintiff emerges as a consequence of the relationship between the plaintiff and the defendant. In my view it is at least arguable that the duties as they are framed in par 36 could arise as a consequence of the pleaded relationship. In my view the negligence claim is at least arguable and should be allowed to stand.

18 There is, however, one matter which does require attention. By par 37 the plaintiff pleads breaches of the defendant's duty of care. The consequences of the breaches of the duty of care are pleaded in par 38. As the pleading stands at the moment it is not clear how the breaches of duty pleaded in par 37 give rise to the consequences pleaded in par 38 and it is then not clear what loss and damage has resulted from each of the breaches of the duty. This is a matter which requires further attention and the deficiency should be rectified in any further pleading.

19 During the course of submissions counsel for the plaintiff indicated that claims under the Trade Practices Act and the Fair Trading Act as are presently found in par 62 through to par 65 of the minute will not be pursued. The defendant said that these claims were statute-barred and the plaintiff conceded the point. I need say nothing more about those paragraphs.

20 There were two further matters raised by the defendant, both of which were properly raised in the context of this pleading summons. Neither is of particular significance. The first point relates to the reference to "the plaintiff" in par 54 through to par 61. For instance, in par 54 it is said that the defendant through Mr Knight "presented to Mr Mrsa on behalf of the Plaintiff for execution a Pre-Bid Agreement … ". The plaintiff had not been incorporated at the date the Pre-Bid Agreement was signed and the pleading is inaccurate. This error is repeated on a number of occasions throughout these paragraphs. It is a matter which should be rectified in a subsequent pleading.

21 Finally, the defendant complains that the implied term referred to par 10.2 of the pleading, that is, a term that the parties would perform the joint venture obligations "in a manner which would maximise the profit to

(Page 14)

be made by the JV" was not a term that could be implied. There is no doubt that there are difficulties in implying such a term in the contract. As counsel for the defendant submitted it is difficult to imagine such a term being capable of clear expression. Furthermore, it is difficult to see on what basis it can be said that such a term is to be implied as a matter of law in all contracts: See par 10.2(a). While I have some reservations about the way in which the implied terms are pleaded, this is not a matter which is likely to raise a false issue or delay the trial of the action. In my view the way in which these matters are pleaded allows the defendant to know the case that it has to meet and I would therefore allow the pleading to stand.

22 Based upon the above it is clear that a further minute of the re-amended statement of claim will be required. However, I would be prepared to allow the plaintiff to amend broadly in terms of the minute. I will hear the parties as to the precise form of orders and as to costs.