Port Kennedy Golf Country Club Pty Ltd v Port Kennedy Resorts Pty Ltd

[2000] WASC 15

PORT KENNEDY GOLF COUNTRY CLUB PTY LTD & ORS -v- PORT KENNEDY RESORTS PTY LTD & ORS [2000] WASC 15

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 15
Case No:	CIV:1644/1999	Heard:	9 NOVEMBER 1999
Coram:	ANDERSON J	Delivered:	2/02/00
No of pages:	5	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	PORT KENNEDY GOLF COUNTRY CLUB PTY LTD (ACN 060 885 252) HO SWEE HUAT SIEW TIEN CHOW LIM YUE KHIM MOHAMED JAMIL BIN MOHAMED AMIN PAC-ASIA HOLDINGS PTE LTD PORT KENNEDY RESORTS PTY LTD (ACN 061 115 348) RICHARD ANTHONY LUKIN GARY KEVIN SHEEHAN PAUL ANDREWS JOHN MacKAY MATHESON TEOW KIM CHNG STEPHEN WILLIAM MARSHALL FLEURIS PTY LTD (ACN 009 010 495)
Catchwords:	Practice and procedure Pleading Strike-out orders Liberty to replead generally
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PORT KENNEDY GOLF COUNTRY CLUB PTY LTD & ORS -v- PORT KENNEDY RESORTS PTY LTD & ORS [2000] WASC 15 CORAM : ANDERSON J HEARD : 9 NOVEMBER 1999 DELIVERED : 2 FEBRUARY 2000 FILE NO/S : CIV 1644 of 1999

CIV 1718 of 1999
CIV 1266 of 1999
CIV 1717 of 1999
CIV 1737 of 1999
Consolidated by order 7 September 1999

BETWEEN : PORT KENNEDY GOLF COUNTRY CLUB PTY LTD (ACN 060 885 252)

First Plaintiff

HO SWEE HUAT
Second Plaintiff

SIEW TIEN CHOW
LIM YUE KHIM
MOHAMED JAMIL BIN MOHAMED AMIN
Third Plaintiffs

PAC-ASIA HOLDINGS PTE LTD
Fourth Plaintiff

AND

PORT KENNEDY RESORTS PTY LTD (ACN 061 115 348)
First Defendant

(Page 2)

RICHARD ANTHONY LUKIN
GARY KEVIN SHEEHAN
Second Defendants

PAUL ANDREWS
JOHN MacKAY MATHESON
TEOW KIM CHNG
STEPHEN WILLIAM MARSHALL
Third Defendants

FLEURIS PTY LTD (ACN 009 010 495)
Fourth Defendant

Catchwords:

Practice and procedure - Pleading - Strike-out orders - Liberty to replead generally

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

First Plaintiff : Mr P D Evans
Second Plaintiff : Mr P D Evans
Third Plaintiffs : Mr P D Evans
Fourth Plaintiff : Mr P D Evans
First Defendant : Mr D H Solomon
Second Defendants : Mr D H Solomon
Third Defendants : Mr D H Solomon
Fourth Defendant : Mr D H Solomon

(Page 3)

Solicitors:

First Plaintiff : Freehill Hollingdale & Page
Second Plaintiff : Freehill Hollingdale & Page
Third Plaintiffs : Freehill Hollingdale & Page
Fourth Plaintiff : Freehill Hollingdale & Page
First Defendant : Solomon Bros
Second Defendants : Solomon Bros
Third Defendants : Solomon Bros
Fourth Defendant : Solomon Bros

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

Nil

Case(s) also cited:

Nil

(Page 4)

1 ANDERSON J: On 15 December 1999, I gave reasons for deciding that certain paragraphs of the consolidated statement of claim ought to be struck out and certain amendments sought to be made to it should be disallowed. I asked the parties to consider to what extent the strike-out orders affected other paragraphs in the statement of claim, with a view to enlarging the strike-out order to include paragraphs which could not stand in the absence of the paragraphs ordered to be struck out. I have now received submissions and it is apparent there is disagreement between the parties as to the extent of the consequential strike-out orders that ought to be made. Having considered the submissions, I have come to the conclusion that the best way to deal with the matter is to make orders striking out those paragraphs which I have found to be objectionable and give liberty to replead generally, which would include liberty to amend the statement of claim insofar as is necessary to bring those paragraphs which have not been struck out into line with the repleaded paragraphs.

2 I have decided that this is the best course because, whilst it is plain that some paragraphs cannot stand in the absence of the paragraphs which have been struck out, it is not so clear that they could not stand in their present form once those paragraphs which have been struck are repleaded.

3 There are two other matters which should be cleared up. In the consolidated statement of claim dated 8 October 1999, there are 81 paragraphs. In the minute of proposed amended consolidated statement of claim dated 8 November 1999 there are 82 paragraphs. When the strike-out application was argued, both versions of the statement of claim were before me because, as I recall, the amendment application and the strike-out application were run together. I suspect this may have led to some confusion in my reasons for judgment which the parties have been too polite to point out. In some places I refer to a statement of claim of 81 paragraphs and in other places I refer to a statement of claim of 82 paragraphs. I draw this to the parties' attention in case something needs to be done about it.

4 I have noticed another point of confusion. In dealing with the objections to paragraphs 75 onwards, I made it clear that, although there was prima facie merit in some of the objections, I was not persuaded any of those paragraphs ought to be struck out at this stage. I did decide, however, that certain paragraphs of the prayer for relief ought to be struck out because there was no sufficient pleading to disclose a cause of action for the relief in question. Those paragraphs were 12(b) and (c). I had reached the conclusion that only those subparagraphs of the prayer for relief deserved to be struck out and yet in par 37 of my reasons a different

(Page 5)

conclusion is expressed. I think all that I can say is that par 37, in which I say -

"In my opinion, the paragraphs in question - that is, par 75 to par 82 inclusive - ought to be struck out and the prayer for relief item 12 ought also to be struck out."

does not reflect my intentions.

5 The formal orders will be:

1. Paragraphs 10 to 13, 20 to 22, 27, 48, 60, 61(d)(1) and (3), 61(e)(4), (5) and (12), and subparagraph 12(b) and (c) of the prayer for relief be struck out.

2. The plaintiffs' application to amend paragraphs 14, 15, 16, 17, 18, 19, 23 and 60 and prayer for relief 10(b) be refused.

3. The plaintiffs have liberty to replead the statement of claim generally, by 25 February 2000.

4. There be liberty to either party to apply.

5. The plaintiffs do pay the defendants' costs of the application dated 22 October 1999 in any event.

6 If there are any matters that require clarification or difficulties that need to be attended to as regards the formalities, I will hear the parties at their convenience. Otherwise, I direct the defendants to extract the orders within the next 10 days.