Rustic Haven Sdn Bhd v The Ravenswood Resort Pty Ltd (Receivers and Managers Appointed) (In Liq)
[2006] WASC 66
RUSTIC HAVEN Sdn Bhd -v- THE RAVENSWOOD RESORT PTY LTD (Receivers & Managers Appointed) (In Liq) & ORS [2006] WASC 66
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 66 | |
| Case No: | CIV:2212/2003 | 27 FEBRUARY 2006 | |
| Coram: | MASTER NEWNES | 13/04/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application to amend refused | ||
| B | |||
| PDF Version |
| Parties: | RUSTIC HAVEN Sdn Bhd THE RAVENSWOOD RESORT PTY LTD (Receivers & Managers Appointed) (In Liq) (ACN 064 679 698) DEANE'S CONTRACTING (WA) PTY LTD (ACN 064 334 238) EAGLE SKY DEVELOPMENT LTD (ACN 078 086 745) MARBLEARCH INVESTMENT PTE LTD (ACN 083 036 524) ADRIAN MIN YAN LEE as Trustee for the Ravenswood Trust CHEW LAN SIM |
Catchwords: | Practice and procedure Application to amend statement of claim Whether proposed amendments disclose reasonable cause of action Whether embarrassing Turns on own facts |
Legislation: | Nil |
Case References: | Atkinson v Fitzwater [1987] 1 WLR 201 Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Dare v Pulham (1982) 148 CLR 658 Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51 Darbyshire v Leigh [1896] 1 QB 554 Rustic Haven Sdn Bhd v The Ravenswood Resort Pty Ltd (Receivers & Managers Appointed) (In Liq) & Ors [2005] WASC 88 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE RAVENSWOOD RESORT PTY LTD (Receivers & Managers Appointed) (In Liq) (ACN 064 679 698)
First Defendant
DEANE'S CONTRACTING (WA) PTY LTD (ACN 064 334 238)
Second Defendant
EAGLE SKY DEVELOPMENT LTD (ACN 078 086 745)
Third Defendant
MARBLEARCH INVESTMENT PTE LTD (ACN 083 036 524)
Fourth Defendant
- ADRIAN MIN YAN LEE as Trustee for the Ravenswood Trust
Fifth Defendant
CHEW LAN SIM
Sixth Defendant
Catchwords:
Practice and procedure - Application to amend statement of claim - Whether proposed amendments disclose reasonable cause of action - Whether embarrassing - Turns on own facts
Legislation:
Nil
Result:
Application to amend refused
Category: B
(Page 3)
Representation:
Counsel:
Plaintiff : Mr D K Barker
First Defendant : Ms K J Levy
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Mr E W L Greaves
Fifth Defendant : Mr E W L Greaves
Sixth Defendant : Mr G D Cobby
Solicitors:
Plaintiff : Chalmers and Partners
First Defendant : Freehills
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Christensen Vaughan
Fifth Defendant : Christensen Vaughan
Sixth Defendant : Christensen Vaughan
Case(s) referred to in judgment(s):
Atkinson v Fitzwater [1987] 1 WLR 201
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Dare v Pulham (1982) 148 CLR 658
Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490
Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Case(s) also cited:
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Darbyshire v Leigh [1896] 1 QB 554
Rustic Haven Sdn Bhd v The Ravenswood Resort Pty Ltd (Receivers & Managers Appointed) (In Liq) & Ors [2005] WASC 88
(Page 4)
1 MASTER NEWNES: This is an application by the plaintiff for leave to amend its statement of claim in terms of a minute of proposed re-amended statement of claim. The application follows an earlier successful application by the sixth defendant to strike out the parts of the statement of claim which pleaded a claim against her. It seems that at least one other proposed statement of claim has since been provided to the sixth defendant's solicitors. The latest minute is dated 21 December 2005 and was the subject of this application.
The pleading
2 In the minute, the plaintiff pleads that it is a company incorporated in Malaysia. By an agreement in writing made on 2 October 1996 ("the Joint Venture Agreement"), the first, third, fourth and fifth defendants associated themselves in a joint venture for the purpose of subdividing, marketing and selling parts of the first defendant's land.
3 It is then pleaded, so far as relevant for present purposes, as follows:
"18A On or about the 12 October 2001 the Plaintiff, Citymont Pty Ltd ('Citymont') the First Defendant, the Third Defendant, the Fourth Defendant, the Fifth Defendant, the Sixth Defendant as trustee for the King Street Trust ('King Street Trust') and the Sixth Defendant as trustee for the Lee Family Trust ('Lee Family Trust') executed a Deed of Reconstruction and Transfer of the Joint Venture Agreement ('Deed of Reconstruction')
18B Clause 4 of the Deed of Reconstruction provided that the Deed of Reconstruction was conditional upon the Plaintiff obtaining the approval of the Foreign Investment Review Board within three months of execution of the Deed of Reconstruction.
18C Clause 5 of the Deed of Reconstruction provided that completion would occur within one month of the date the Plaintiff obtained approval from the Foreign Investment Review Board ('the Completion Date').
18D As an inducement for the Plaintiff to enter into the Deed of Reconstruction the Sixth Defendant, by a letter dated 12 October 2001:
- 18D.1 undertook to the Plaintiff that until the completion date as defined in the Deed of Reconstruction the Sixth Defendant would procure that the First Defendant would not in any way depart from the ordinary course of its day to day business either as regards the nature, scope or manner of conducting the First Defendant's business ('the First Undertaking');
18D.2 undertook to the Plaintiff that she was personally liable to the Plaintiff for all undertakings and the due performance of her obligations contained in the letter and the Deed of Reconstruction ('the Second Undertaking').
- 18E There are no provisions in the Deed of Reconstruction that require the First, Third, Fourth and Fifth Defendants pending completion to not in any way depart from the ordinary course of the day to day business of the Joint Venture constituted by the Joint Venture Agreement.
18F The Plaintiff was at a disadvantage when entering into the Deed of Reconstruction.
Particulars
- (a) The Plaintiff does not carry on business in Australia.
(b) The Plaintiff does not have a local agent in Australia.
(c) The Plaintiff could not observe the performance by the First, Third, Fourth and Fifth Defendants of their obligations under the Deed of Reconstruction.
18G By reason of the matters pleaded in paragraphs 18E and 18F the Plaintiff relied on the First and Second Undertakings when entering into the Deed of Reconstruction.
(Page 6)
- 18H Clause 3.2 of the Deed of Reconstruction required the Sixth Defendant as Trustee for the King Street Trust and the Lee Family Trust to transfer to the Plaintiff respectively 315,000 shares and 945,000 shares in the First Defendant contemporaneously with the First Defendant transferring to the Plaintiff the First Defendant's interest in the Joint Venture Agreement.
18I Clause 7 of the Deed of Reconstruction required the First Defendant to pay all stamp duty in respect to [sic] the Deed of Reconstruction.
18J Clause 3.1 of the Deed of Reconstruction required the First Defendant on the Completion Date to transfer to the Plaintiff the First Defendant's interest in the Joint Venture Agreement.
18K Performance by the First Defendant of its obligations pleaded in paragraphs 18I and 18J were in the ordinary course of the First Defendant's business.
18L The Sixth Defendant was at all times and still is a director and the secretary of the First Defendant.
18M The Sixth Defendant has never delivered to the Plaintiff stamped transfers of the shares pleaded in paragraph 18H.
18N On the Completion Date the Sixth Defendant did not as required by the First Undertaking procure the First Defendant to deliver to the Plaintiff a transfer of the First Defendant's interest in the Joint Venture Agreement.
18O Subsequent to the Completion Date the Sixth Defendant has not procured the First Defendant to deliver to the Plaintiff a transfer of the First Defendant's interest in the Joint Venture Agreement.
18P By reason of the matters pleaded in paragraphs 18E, 18F, 18G, 18M, 18N and 18O it would be unconscionable for the Sixth Defendants to assert that her First Undertaking expired through natural effluxion of time on the Completion Date.
(Page 7)
- 19 At all material times the Sixth Defendant was the director of the First Defendant responsible for the performance of the First Defendant's Obligation (the Responsible Director) to execute transfers of land dealt with in accordance with the Joint Venture Agreement and the Purchase Agreement.
20 In discharge of the First Defendant's Transfer Obligation the Sixth Defendant procured that the First Defendant executed transfers to the Plaintiff of the Titled Lands.
21 In or about August 2002 the First Defendant informed the Plaintiff that it would not discharge the Transfer Obligation in respect to the Untitled Lands referred to in paragraph 23 ('the Repudiation').
Particulars
- (a) The Sixth Defendant informed Mr Kasai a representative of the Plaintiff, that the First Defendant would not upon the title issuing for the Untitled Lands transfer those titles to the Plaintiff.
22 The Sixth Defendant did not as required by the First Undertaking procure the First Defendant in or about August 2002 to perform the Transfer Obligation.
…
39 By reason of the Sixth Defendant's not procuring the First Defendant to in the ordinary course of its business discharge the Transfer Obligation as pleaded in paragraph 22 the Plaintiff will suffer a loss to the extent of any monies not recovered by the Plaintiff under the Purchaser's Lien.
40 By reason of the Sixth Defendant's not delivering to the Plaintiff the transfers as pleaded in paragraph 18M and not procuring the First Defendant to in the ordinary course of its business deliver to the Plaintiff a stamped transfer of the First Defendant's interest in the Joint Venture Agreement as pleaded in paragraph 18N and 18O the Deed of Reconstruction did not complete with the consequence that the Plaintiff has suffered a loss being
- 70% of the distributable profits from the subdivision of the Land.
- (a) The Plaintiff will before trial particularise the divisible profits that would have been made had the Plaintiff become the holder of 70% of the issued shares of the First Defendant contemporaneous with the revocation of the RSJV."
The documents referred to in the pleading
4 The Deed of Reconstruction (the "Deed") and the letter of 12 October 2001, pleaded in par 18D of the minute as containing the First Undertaking and the Second Undertaking, were put into evidence. The letter was addressed to the plaintiff and signed by, among others, the first defendant. The undertakings are expressed to be in consideration of the plaintiff's agreement to participate in and take over 70 per cent of the joint venture and the reconstruction of the first defendant and another participant, RRCM, as contained in the Deed. The parts of the letter that are relevant for present purposes are as follows:
"[1] (h) Undertakings
As from the date of this letter and until the Completion Date as defined in the Deed, we shall procure that the Joint Venture, RRPL and RRCM shall not:
…
(b) enter into any long-term or abnormal contract or incur any capital commitment or dispose of any part of its assets except in the ordinary course of business or acquire any assets on hire purchase or deferred payment terms
…
(d) in any way depart from the ordinary course of its day to day business either as regards to the nature, scope or manner of conducting the same
(e) create, grant or issue any mortgage, charge, debenture, pledge or other incumbrance or security, or give any
- guarantee or indemnity, or permit any lien to arise on any of its assets except in the ordinary course of business
- …"
The sixth defendant's submissions
5 The sixth defendant took a number of objections to the proposed minute. It was submitted, first, that the plea in par 18M that the sixth defendant had never delivered to the plaintiff stamped transfers of the shares disclosed no reasonable cause of action, or was an abuse of process, because there was no allegation that the sixth defendant was required to do so. Clause 7 of the Deed expressly provided that the first defendant or RRCM was responsible for paying the stamp duty on the transfers.
6 It was submitted on behalf of the sixth defendant that there was similarly no basis for the pleas in pars 18N, 18O and 40, that the sixth defendant had failed to procure the first defendant to deliver a transfer of the first defendant's interest in the Joint Venture Agreement to the plaintiff. There was no plea of any obligation on the sixth defendant to do so. It was not reasonably arguable that the covenant pleaded in par 18D.1, that the sixth defendant would procure that the first defendant would not depart from the ordinary course of its day to day business, imposed an obligation on the sixth defendant to ensure that the first defendant executed and delivered up a transfer of the first defendant's interest in the Joint Venture Agreement.
7 It was submitted on behalf of the sixth defendant that pars 18B, 18C, 18H, 18I and 18J are embarrassing in that they do not plead the alleged effect of the document as a fact, and, moreover, they do not accurately plead the clauses referred to.
8 Objection was taken to par 18K because, it was submitted, it was not clear what was meant by "the First Defendant's business".
9 Counsel for the sixth defendant submitted that the plea of unconscionable conduct in par 18P disclosed no reasonable cause of action or was embarrassing. It was submitted that the plea appeared to be based on an allegation that the plaintiff was at a relevant disadvantage when entering into the Deed because it did not carry on the business in Australia, did not have a local agent in Australia and could not observe the performance by the first, third, fourth and fifth defendants of their obligations under the Deed. It seemed to be alleged in par 18P that, by
(Page 10)
- reason of the failure of the sixth defendant to procure the first defendant to deliver a transfer of the first defendant's interest in the Joint Venture Agreement and to pay for the stamping of the transfer of the trusts' shares, it would be unconscionable for the sixth defendant to assert that, as the date of completion defined in the Deed had passed, her obligations to procure the first defendant to do so have thereby expired through the effluxion of time.
10 It was submitted on behalf of the sixth defendant that the doctrine of unconscionability required both that the plaintiff be subject to a special disadvantage and that the defendant have taken unconscientious advantage of the opportunity thereby created. The special disadvantage required is one which affects the ability of an innocent party to make a judgment about that party's own interests.
11 It was submitted that in the present case the plaintiff's contention appeared to be that its inability to observe the performance of the contract deprived it of the ability to protect its own interest. That was simply not sufficient. There was also no plea that the sixth defendant took unconscientious advantage of that alleged disability. Moreover, none of the matters pleaded have any relevance to an inability to observe performance of the contract.
12 It was also submitted that the claim of unconscionable conduct is based on alleged breaches of obligations which, on the pleading, the sixth defendant did not owe to the plaintiff.
13 In response to the statement by the plaintiff's counsel in the course of argument that the reference to unconscionability in the minute was in support of a plea of an estoppel, counsel for the sixth defendant submitted that there was nothing to support such a plea and, in addition, such a plea anticipated a defence and was therefore embarrassing. If such a plea is to be raised at all, it is properly a matter for reply.
The plaintiff's submissions
14 It was submitted in relation to par 18M that it is not alleged there was a contractual obligation on the sixth defendant to stamp the transfers. Rather, the contractual obligation to stamp the transfers was on the first defendant but there was an obligation on the sixth defendant, pursuant to her undertaking pleaded in par 18D, to procure that the first defendant would attend to the stamping of the transfers in the ordinary course of its business.
(Page 11)
15 Counsel for the plaintiff said that par 18P was a plea of estoppel, not unconscionable conduct as such. The allegation that it would be unconscionable for the sixth defendant to assert that her undertaking had expired through effluxion of time was relevant to the plea of estoppel. As it was put by its counsel, the plaintiff's case is that completion under the Deed did not occur because the sixth defendant did not carry out her undertaking to ensure that the first defendant did what it had contracted to do, namely, transfer its interest in the Joint Venture Agreement to the plaintiff. The transfer by the first defendant of its interest in the Joint Venture Agreement to the plaintiff was in the ordinary course of the first defendant's day to day business, within the meaning of the undertaking pleaded in par 18D. The failure to transfer the interest to the plaintiff was therefore a departure by the first defendant from the ordinary course of its day to day business. The sixth defendant had undertaken to procure that the first defendant would not in any way depart from the ordinary course of its day to day business but in respect of the transfer had failed to do so.
16 It was the plaintiff's case that, because of her breach of the undertaking, it would be unconscionable for the sixth defendant to rely on the strict wording of the undertaking to say that the undertaking expired on the completion date by effluxion of time.
17 It was submitted on behalf of the plaintiff that the "first defendant's business" in par 18K was clear in the context. It was the development of land under the Joint Venture Agreement.
18 Counsel for the plaintiff submitted that the pleas in pars 18B, 18C, 18H, 18I and 18J were, and were obviously, pleas as to the effect of the respective provisions of the Deed and were not objectionable.
Is the proposed pleading defective?
19 The principles to be applied on an application of this nature are well established. A Court will not grant leave to amend a pleading into a form which is liable to be struck out: Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32 at 38; Atkinson v Fitzwater [1987] 1 WLR 201 at 214 - 215. A pleading will be struck out where it discloses no arguable cause of action or is an abuse of the process of the Court. It may also be struck out where it is vague, ambiguous or pleaded at too great a level of generality so as to leave the other party in doubt as to how to respond to the pleading: Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 413; Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J. In determining the adequacy of a pleading it is
(Page 12)
- fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 at 517; Dare v Pulham (1982) 148 CLR 658 at 664.
20 In my view, the pleading is substantially defective and I would refuse leave to amend in the form of the minute.
21 The plea in par 18K, that the transfer to the plaintiff of the first defendant's interest in the Joint Venture Agreement was in the ordinary course of the first defendant's business, appears to be a foundation for the subsequent pleas in pars 18N, 18O and 40 that, pursuant to her undertaking, the sixth defendant was under an obligation to procure the first defendant to deliver to the plaintiff a transfer of that interest.
22 The undertaking, as pleaded in par 18D, was to the effect that until the completion date the sixth defendant would procure that the first defendant would not depart from the ordinary course of its day to day business. As I understood the argument of the plaintiff, the ordinary day to day business of the first defendant included the transfer of its 25 per centum interest in the Joint Venture Agreement to the plaintiff, so the undertaking imposed on the sixth defendant an obligation to ensure that the first defendant's interest was transferred.
23 If that is the plaintiff's case, I consider that the minute falls short of what is required properly to plead it. It is by no means obvious that the disposal of such an interest, in what appears from the balance of the pleading to be a substantial joint venture, could properly be described as being within the ordinary course of the first defendant's day to day business. Indeed, the plea in par 18E indicates, and in the course of argument counsel for the plaintiff confirmed, that the first defendant's business referred to in the pleading is the business of the joint venture. In that case, it is not easy to see how it could be said that the disposal of the first defendant's interest in the Joint Venture Agreement is in the ordinary course of conducting the first defendant's day to day business as a participant in the joint venture.
24 The bald allegation in par 18K that the disposal of its joint venture interest is in the ordinary course of the first defendant's business is not sufficient. If a plea to that effect is to be maintained it would, at least, be necessary to include in the pleading the allegations of fact upon which the plea is based and which (if proved) are capable of making out the plea. The plea would also need to be amended to refer to the first defendant's
(Page 13)
- "day to day business" if it is to be consistent with the terms of the undertaking pleaded in par 18D.
25 There was also argument as to what, if anything, further was required to be done to transfer the first defendant's interest in the Joint Venture Agreement to the plaintiff. It was submitted on behalf of the first defendant that the transfer was effected by the Deed. Counsel for the plaintiff argued that there were further steps required to transfer the interest. Any further version of the statement of claim should identify specifically what the plaintiff alleges the first defendant had to do (and the sixth defendant was obliged to ensure that it did) to effect the transfer.
26 The plea in par 18M that the sixth defendant has not delivered to the plaintiff stamped transfers of the shares held by the trusts in the first defendant seems to proceed upon the basis either of an unpleaded obligation on the part of the sixth defendant to attend to the stamping of the transfers or an obligation on her part, pursuant to her undertaking pleaded in par 18D(1), to ensure that the first defendant did so. In the course of argument counsel for the plaintiff said it was the latter. That needs to be made clear in the pleading. Moreover, if that is the plaintiff's case, the pleading, as it stands, again does not provide an adequate foundation for the allegation that it was in the ordinary course of the day to day business of the first defendant to pay the stamp duty on the transfers, so that the sixth defendant's failure to ensure it did so was a breach of her undertaking.
27 I accept the sixth defendant's submission that the plea of estoppel is an anticipatory plea and embarrassing for that reason. In any event, in my view, it is not capable of being made out on the pleading as it stands.
28 It appears that, in essence, the plaintiff's case is as follows. There were no provisions in the Deed that required the defendants not to depart from the day to day business of the joint venture, and as the plaintiff does not carry on business in Australia and does not have a local agent here it could not observe the performance by the defendants of their obligations under the Deed. When entering into the Deed the plaintiff therefore relied on the undertaking by the sixth defendant in the letter of 12 October 2001 that until the completion date the sixth defendant would ensure that the first defendant did not depart from the ordinary course of its day to day business. The day to day business of the first defendant included the transfer of its interest in the Joint Venture Agreement to the plaintiff. Contrary to her undertaking, the sixth defendant did not ensure that the first defendant transferred its interest in the Joint Venture Agreement to
(Page 14)
- the plaintiff on the completion date and has not subsequently done so. The sixth defendant is therefore estopped from asserting that, in accordance with the terms of the undertaking, the undertaking ceased to have effect after the completion date.
29 Counsel for the sixth defendant had initially approached the plea on the basis that it was one of unconscionable conduct of the sort referred to in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. Counsel for the plaintiff said in argument that the plea was one of estoppel of the sort referred to in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. In my view, it does not emerge with sufficient clarity from the minute that it is intended to be a plea of estoppel. I should also say that it did not clearly appear from the plaintiff's written outline of submissions that that was what was intended.
30 In any event, I do not consider that the pleading is capable of making out an arguable case of estoppel. The relevant principles were stated by Brennan J in Waltons Stores (Interstate) Ltd v Maher (supra). His Honour said:
"It is necessary for the plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expect that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt the assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs."
(Page 15)
31 In my view, the proposed pleading is not arguably capable of making out the estoppel contended for. The pleading does not appear to be directed to a claim of estoppel and the facts necessary to establish the essential elements of such a plea have not been pleaded or, at the very least, do not emerge with any clarity from the pleading. I should also add, first, that it is not clear what purpose the plea of estoppel is intended to serve, the plaintiff's claim against the sixth defendant apparently being for damages for the alleged breach by the sixth defendant of her undertaking to ensure that the transfer took place on the completion date; and secondly, the plea relies on an obligation on the part of the sixth defendant to ensure that in the course of the ordinary conduct of its day to day business the first defendant transferred its interest in the Joint Venture Agreement to the plaintiff. For the reasons I have mentioned, such an obligation in relation to the transfer of the first defendant's interest is by no means clear on the pleading as it stands.
32 I do not consider that the objections by the sixth defendant to the form of the pleas in pars 18B, 18C, 18H, 18I and 18J are made out and I would not refuse leave to amend in terms of those pleas on the basis of those objections. What is pleaded is the plaintiff's contention as to the effect of the provisions of the agreement referred to. If the sixth defendant takes issue with the pleaded effect that is a matter that can adequately be dealt with by way of defence.
33 But for the reasons I have given, I consider that the minute is objectionable in several important respects and, as it is, it would be liable to be struck out if it were allowed to stand as the statement of claim.
34 In light of the nature of the deficiencies to which I have referred, I consider the appropriate course is simply to refuse leave to amend in terms of the minute.
35 Having regard to the history of the matter, there seems to me some substance in the complaint of the sixth defendant that too much time and cost has already been spent on endeavours to put the statement of claim in an acceptable form. I would not on this occasion accede to the submission by counsel for the sixth defendant that no further such opportunity should be afforded to the plaintiff, but the further time that will be allowed to put the statement of claim into an acceptable form is running out. If the plaintiff proposes to file and serve a further minute of proposed statement of claim, that should be done within a relatively short period of time.
(Page 16)
36 I will hear the parties on that and on the question of costs.
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