Ribich and Ribich v Killen

[1997] QCA 186

IN THE COURT OF APPEAL	[1997] QCA 186
SUPREME COURT OF QUEENSLAND

Appeal No. 9964 of 1996.

Brisbane

[Ribich v. Killen]

BETWEEN:

STEPHEN ROBERT RIBICH

(First Defendant) Appellant

AND:

BRANKA RIBICH

(Second Defendant) Appellant

AND:

DENNIS JAMES KILLEN

(Plaintiff) Respondent

___________________________________________________________________________

McPherson JA
Demack J

Helman J

___________________________________________________________________________

Judgment delivered 27 June 1997

Judgment of the Court

___________________________________________________________________________

APPEAL ALLOWED. STATEMENT OF CLAIM IS STRUCK OUT. PLAINTIFF HAS
LEAVE TO DELIVER A FRESH STATEMENT OF CLAIM. PLAINTIFF IS ORDERED
TO PAY THE COSTS OF THIS APPEAL AND THE COSTS OF THE APPLICATION
BEFORE THE CHAMBER JUDGE.
___________________________________________________________________________

CATCHWORDS: PRACTICE AND PROCEDURE - multiple causes of action alleged in writ - statement of claim pleading only three causes of action - request for further and better particulars - further particulars given - statement of claim amended - issues not clearly pleaded - statement of claim struck out - leave to deliver fresh statement of claim.

Counsel:	Mr R Perry for the appellants. Mr J Crowley QC for the respondent.
Solicitors:	McCullough Robertson for the appellants. Myles Thompson & Co for the respondent.
Hearing date:	10 June 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9964 of 1996.

Brisbane

Before: McPherson JA
Demack J

Helman J

[Ribich v. Killen]

BETWEEN:

STEPHEN ROBERT RIBICH

(First Defendant) Appellant

AND:

BRANKA RIBICH

(Second Defendant) Appellant

AND:

DENNIS JAMES KILLEN

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 June 1997

This is an appeal from the decision of a Chamber Judge refusing either to strike out a statement

of claim or to order the plaintiff to deliver proper particulars of his claim.

The action was commenced by a writ issued on 15 November 1995. It claimed damages for

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"(a)	Breach of contract
(b)	Breach of the provisions of the Corporations Act 1989
(c)	Breach of the Provisions of the Trade Practices Act 1974
(d)	Breach of duty as a director
(e)	Breach of trust
(f)	Breach of fiduciary duty
(g)	Misleading and deceptive conduct
(h)	Fraud
(i)	Negligence
(j)	Breach of duty of care

And the Plaintiff claims against the First and Second and Third Defendants for damages

and interest pursuant to the Common Law Practice Act 1867 and the costs of this

action."

The statement of claim delivered on 13 December 1995 alleged that, in or about December

1988, the defendants formed a plan to float a no liability company on the Australian Stock Exchange

(para. 6), and formed a company, Mitchell Resources NL (para. 7). They are further alleged to have

invited the plaintiff to act as chairman of Mitchell Resources NL (para 8) and to have represented to

him that they had rights to mining tenements along the Mitchell River and at Mt Holmes (paras. 9 and

10). In reliance upon that representation, the plaintiff agreed in January 1989 to act as chairman of

Mitchell Resources NL (para. 12). In January 1994, solicitors acting for Mitchell Resources disclosed

that several of the mining tenements at Mt Holmes had been vested in trustees under a Deed of

Assignment executed on 15 September 1986 (para. 15). After that disclosure the defendants

represented to the plaintiff that they held a release from those trustees (para. 23). In reliance upon the

representations aforesaid the plaintiff became chairman and expended money, time and effort in the

attempted flotation of Mitchell Resources NL on the Stock Exchange (para. 24).

Although the earlier paragraphs of the statement of claim do not assert that the defendants

represented that they would assign their rights to the mining tenement at Mt Holmes to Mitchell

Resources NL, it is alleged in paragraph 25 that it was essential for the successful flotation of Mitchell

Resources NL that the Mt Holmes tenements be available to form the core assets of Mitchell Resources

NL. It is alleged that the representations were false and known to be so by the defendants.

It was further alleged that the third defendant was a corporation and that the conduct alleged

was misleading or deceptive.

The plaintiff claimed to have suffered loss and damage.

The first and second defendants sought further and better particulars of the claim in a sixteen

page document dated 15 January 1996. On 12 February 1996, the plaintiff delivered brief further

particulars of four paragraphs of the statement of claim, but generally refused to answer the request with

the words, "this is not a proper particular as it is an inquiry into evidence".

After some correspondence, the plaintiff delivered further particulars on 9 April 1996. While

these particulars make some aspects of the statement of claim clearer, they also add confusion.

For example, the paragraph in the statement of claim which first alleged that the plaintiff acted

on representations made by the defendants reads:

"12. In reliance upon the said representations made by the Defendants the Plaintiff agreed in or about January 1989 to act as Chairman of the aforesaid Company Mitchell Resources N.L."

The request for particulars of this paragraph produced the following:

"The Plaintiff would agree to act as Chairman of the Company and to lend his own expertise and well known name to the Company. The agreement was oral and in the years 1989 to 1995 the Plaintiff was identified as the Chairman by the First and Second Defendants and in documentation prepared either by or with the knowledge of the First and Second Defendants."

"Discussions took place between the natural Defendants and Mr Robert Ribich the husband of the Second defendant and father of the First, no precise dates have been noted. However the agreement was discussed and brought to conclusion in the chambers of the Plaintiff, in the house of the Plaintiff, at Board meetings and at various locations in the cities of Brisbane, Cairns, on the Mitchell River and on Mount Holmes."

The following was offered as particulars of damages:

"The Plaintiff was involved in hundreds of conferences with the First and Second Defendant and with the deceased husband of the Second Defendant. These conferences took place in Chambers of the Plaintiff, Inns of Court, North Quay, Brisbane, the home of the Plaintiff, 253 Chapel Hill Road, Chapel Hill, Brisbane on many occasions driving the First And Second Defendants from the Brisbane airport to the city, and from the city to the Brisbane airport, at the Brisbane airport, at offices of sharebrokers, and in hundreds of telephone calls between Brisbane and Cairns and Brisbane and Sydney. The Plaintiff proof-read and advised on the structure and contents of thirteen (13) draft prospectuses arranged for typing and facsimiles associated with such prospectuses to be prepared and consulted extensively with professional advisers in legal, commercial and underwriting fields of activity. The Plaintiff expended thousands of hours of time giving advice to the First and Second Defendant, and the late husband of the Second Defendant, in many aspects associated with the Company."

"Hundreds of conferences", "consulted extensively" and "thousands of hours" are not phrases which

define the issues.

On 30 April 1996, the plaintiff delivered an amended statement of claim which added a further

six paragraphs, the most significant of which is:

"27. In the premises an agreement came into being between the Plaintiff and the Defendants and each of them respectively that in consideration of the Plaintiff acting in the capacity of Chairman of Mitchell Resources NL being a Company to be formed and thereby lending his name and reputation in aid of the project the Defendants agreed and/or warranted that they had title to the tenements hereinbefore referred to and could and would use the title to the said tenements to be transferred in such Company so as to form the basis for the asset backing of the said Company for a public flotation thereof, and otherwise would do all things necessary within their power to enable a successful flotation of the said company to take place."

For the first time, it is alleged that the defendants could and would transfer the Mt Holmes

mining tenement to Mitchell Resources NL, although in this paragraph that is pleaded as a term or

warranty for a contract that the plaintiff would become chairman of Mitchell Resources NL.

The defendants sought either to have the statement of claim struck out or to have the plaintiff

supply further and better particulars. The chamber judge took the view that the amendments, the further

and better particulars and the letters which had been disclosed following the delivery of a defence had

given sufficient definition of the claim.

The application was heard on a busy chamber day and, although the decision was reserved, it

is unlikely that the arguments were as well developed as they were on appeal.

When the statement of claim is considered it is quite unsatisfactory. The writ enumerated a

significant number of possible causes of action, not all of which have been pleaded in the statement of

claim. As has been mentioned, there is no pleading that the plaintiff relied on a representation that the

defendants would transfer the Mt Holmes mining tenements to Mitchell Resources NL. There is confusion in the use of the words "agreed" and "agreement" in respect of the appointment of the plaintiff

as chairman of Mitchell Resources NL. As pleaded in paragraph 12, it seems to mean no more than

that he consented to being appointed. Paragraph 27 alleges a contract in respect of this, and if the

particulars which were given in respect of paragraph 12 can be transposed to paragraph 27, the

agreement may have been some time in the making.

The statement of claim and particulars are inadequate in respect of damages. The case against

the third defendant, which has not entered an appearance, is ambiguously pleaded in respect of the

representation about transfer of the Mt Holmes’ mining tenements. It is not clear if the alleged

misrepresentations made after January 1994 give rise to a further cause of action or merely increase

damages.

While it might be said that the reason for the plaintiff’s complaint about the behaviour of the first

and second defendants is clear enough, the statement of claim must plead the facts which give rise to

causes of action. The writ has suggested the plaintiff has several causes of action. He should properly

express those which he wishes to pursue in his statement of claim.

Appeal is allowed. The statement of claim is struck out. The plaintiff has leave to deliver a

fresh statement of claim. The plaintiff is ordered to pay the costs of this appeal and the costs of the

application before the chamber judge.