| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RANNON PTY LTD -v- RANA [2003] WADC 211 CORAM : REGISTRAR KINGSLEY HEARD : 5 AUGUST 2003 DELIVERED : 3 NOVEMBER 2003 FILE NO/S : CIV 2299 of 2002 BETWEEN : RANNON PTY LTD Plaintiff
AND
SAHADEV SHAMSHER JANG BAHADUR RANA
Defendant
Catchwords: Practice - Application to strike statement of claim - Turns on own facts
Legislation: Nil
Result: Application allowed
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Representation:
Counsel:
Plaintiff : Mr D K Barker
Defendant : Dr P R MacMillan
Solicitors:
Plaintiff : Mackinlays
Defendant : Sivan & Associates
Case(s) referred to in judgment(s):
Argy & Anor v Blunts & Lane Cove Real Estate Pty Ltd & Ors (1990) 26 FCR 112
Gardiner & Anor v Ray [1999] WASC 140
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
O'Brien v Smolonogov (1953) 53 ALR 107
Case(s) also cited:
Nil
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1 REGISTRAR KINGSLEY: The defendant seeks orders that the plaintiff's statement of claim be struck out on the grounds that it discloses no reasonable cause of action or is embarrassing. The plaintiff's action concerns the purchase of land in Ardross ("the land"). The plaintiff pleads that the defendant was the proprietor of the land and in trade and commerce and that he employed particular sales representatives of the selling agent for the defendant.
2 The plaintiff pleads that through its director Frank Pozzari, who was authorised on behalf of the plaintiff to negotiate to enter into contracts on behalf of the plaintiff through Halson Nominees Pty Ltd, he had inspected the land and formed a view as to how the land could be developed for residential resale. Paragraphs 7 to 18 of the statement of claim recite a series of meetings, offers and counter-offers made between Pozzari and the sales representatives for the defendant. At a third meeting pleaded in par 18 Pozzari informs one of the sales representatives of the plaintiff's concern about the adjoining block to the land being developed along the common boundary with the use of a parapet wall. 3 Paragraph 19 of the statement of claim pleads that on 3 May 2002 the owner of the block adjoining the land supplied to the defendant their plans for development of the adjoining block and sought from the defendant consent to a parapet wall along the common boundary. 4 Paragraphs 20 to 24 then plead a further meeting where the defendant proposed that they would accept a particular figure for the sale of the land and that the defendant would not consent to a parapet wall along the common boundaries. At par 22 on the instructions of the defendant the third offer to the plaintiff contained cl 10. This clause in essence provides that the offer by the defendant is on the understanding that the defendant has not granted permission for the construction of a parapet wall on the common boundary between the land and the adjoining property. The plaintiff pleads, however, that the defendant did not advise the plaintiff of the plans for the development of the adjoining block. 5 At par 25 the plaintiff pleads that by virtue of the matters pleaded in par 19 the defendant knew or is deemed to know the details of the development of the adjoining block were relevant to the plaintiff making a decision to buy the land. Paragraph 26 goes on to plead that the defendant was aware of the building requirements of the Melville City Council – which whilst not pleaded I presume is the relevant local authority.
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6 Paragraph 27 then pleads that the proper construction to be placed on cl 10 pleaded in par 22 is that the adjoining block was not being developed along the common boundary, that the owner of the adjoining block had not sought consent from the defendant for a parapet wall, and that the defendant did not know how the owner of the adjoining block intended to develop the block.
7 In the alternative to the plea in par 27, at par 28 the defendant pleads that by silence the defendant misrepresented to the plaintiff those matters previously mentioned. There is a third alternative in par 29 that again by silence the defendant untruthfully misrepresented to the plaintiff those matters. 8 Finally, at par 30 the plaintiff pleads that the defendant being in trade or commerce engaged in conduct that was misleading or deceptive or was likely to mislead or deceive. 9 Paragraphs 32 to 37 of the statement of claim plead that the plaintiff's settlement agents sent to the defendant's solicitors requisitions on title and the plaintiff pleads at par 37 that the defendant's answer to the requisitions were untrue. 10 Paragraphs 38 to 44 plead that Pozzari had ascertained that the defendant had received notice of development of the adjoining block and that the plaintiff through Pozzari made objection to that development. The plaintiff through its solicitors then requested the defendant object to the development of the adjoining block and extend the period of settlement. The defendant refused and served a notice of default upon the plaintiff. At par 44 the plaintiff pleads it rescinded the contract. 11 The plaintiff pleads that as a consequence of the breach of cl 10 of the contract and the untruthful misrepresentation the plaintiff has suffered damages in a quantified sum and as a result of the misrepresentation, the plaintiff has suffered damages. 12 The plaintiff opposes the application on the basis that the application is out of time. The application to strike out the statement of claim ought to have been filed and served in late January 2003. Whilst there were overtures that an application to strike out the statement of claim none was made until March 2003. In February 2003 at a directions hearing it was ordered that discovery be completed by 21 March 2003. The plaintiff completed its discovery which was filed on 17 April 2003. The plaintiff contends that it has suffered prejudice by proceeding with this action on the basis pleaded and that the plaintiff is now ready to enter the action for
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trial. The plaintiff cites Gardiner & Anor v Ray [1999] WASC 140 where Steytler J held that an application to strike out ought to be brought promptly and the time limits are ones to which more than lip service should be paid. The defendant's solicitor in an affidavit sworn 1 August 2003, deposes that he had sought time to prepare and file a defence as he was receiving advice from counsel. Further, due to difficulties in contacting the defendant until late March he was unable to respond to the plaintiff's letter of February. 13 The defendant's application could well have been brought earlier than what it was. The fact that the defendant's solicitor was seeking advice from counsel and waiting for the defendant to contact him is no answer. Applications to strike out pleadings ought to be made promptly before time and expense are unnecessarily expended. However, the prejudice to the plaintiff in this case is one more of expense. That can be remedied by an appropriate order in relation to costs. 14 The defendant's application is both to strike out the statement of claim for no reasonable cause of action or that it is embarrassing. I am of the opinion that having regard to the principles in Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986 in considering the statement of claim as a whole I cannot conclude that the plaintiff does not have a cause of action. 15 The real question then is whether the present pleading is an embarrassment. The plaintiff's contention is that the narrative leading to the plea in pars 19 and 22 will assist in the interpretation of cl 10. In my opinion pars 7 to 18 and 20 to 22 do not constitute material facts forming the cause of action. At best those paragraphs would form the particulars of the material facts making up the plaintiff's cause of action. 16 Further, in my opinion, pars 22 and 24 do not adequately plead the agreement. Paragraph 22 provides that the selling agent for the defendant prepared a third offer and at par 24 the defendant accepted the third offer. Those pleas in my opinion fall short of what is required to properly plead a concluded agreement. 17 The defendant counsel submits that pars 28 and 29 do not plead a cause of action and are embarrassing. Certainly, where alternative claims are pleaded the necessary facts supporting the alternative claim is to be pleaded. However, where a pleading has been adequately pleaded at the outset then the alternative causes of action may be pleaded by reference to
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previous paragraphs. As the paragraphs relied on by the plaintiff to found the alternative causes are embarrassing, by that fact pars 28 and 29 are also embarrassing. 18 Paragraphs 31 to 46 appear not to relate to any prayer for relief and in any event are embarrassing. The plaintiff pleads that as a consequence of the misrepresentations pleaded in par 28 and the conduct pleaded in par 30 the plaintiff is entitled to damages pleaded in par 46. However, in par 46 the plaintiff pleads that as a consequence of the breach pleaded in par 45 and the untruthful representation pleaded in par 29 the plaintiff is entitled to damages. There appears to be no relationship between par 46, par 47 and anything pleaded from par 31. 19 As for par 30 I am of the opinion this paragraph discloses no cause of action. The transaction pleaded is one of sale of private residential property. The whole transaction lacks any business character so that it is transformed into something done in trade or commerce (O'Brien v Smolonogov (1953) 53 ALR 107; Argy & Anor v Blunts & Lane Cove Real Estate Pty Ltd & Ors (1990) 26 FCR 112). 20 I am of the opinion that the statement of claim is one that is embarrassing and should therefore be struck out. I am of the opinion that the plaintiff ought to be given time to re-plead the statement of claim, omitting any plea in relation to the Trade Practices Act. 21 I am also of the opinion that the defendant's application whilst having merit was brought later than the rules and the objects of case management allow. The plaintiff has suffered prejudice by proceeding with its action on the present basis and in my opinion that prejudice can best be cured by costs. 22 I will hear counsel as to the form of the orders.
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