S and D Cambridge Management Services Pty Limited v Couriers Please Pty Limited

[2019] NSWSC 1418

Supreme Court

New South Wales

Medium Neutral Citation:	S & D Cambridge Management Services Pty Limited v Couriers Please Pty Limited [2019] NSWSC 1418
Hearing dates:	16 October 2019
Date of orders:	16 October 2019
Decision date:	16 October 2019
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	See paragraph [24]
Catchwords:	CIVIL PROCEDURE — pleadings — particulars
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.10
Category:	Procedural and other rulings
Parties:	S & D Cambridge Management Services Pty Limited (Plaintiff) Couriers Please Pty Limited (Defendant)
Representation:	Counsel: Mr J Jobson (Plaintiff) Ms L Hulmes (Defendant)   Solicitors: Herbert Weller (Plaintiff)
File Number(s):	2018/307440
Publication restriction:	Nil

ex tempore Judgment

1. HIS HONOUR: The parties come before the Court by way of the filing of two motions, one filed by the plaintiff and the other filed by the defendant.

2. Pursuant to a motion filed on 3 September 2019, the plaintiff seeks leave to file an amended statement of claim in the form of Annexure A to the affidavit of Herbert Hugo Weller affirmed 26 August 2019.

3. Pursuant to a motion filed on 9 September 2019 the defendant seeks a number of orders, primarily being that the proceedings be dismissed pursuant to r 13.4(1) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or that the proceedings be struck out pursuant to r 14.28(1) UCPR. In the alternative, the defendant seeks an order pursuant to r 15.10(1)(a) that the plaintiff provide proper particulars to the defendant as requested in various correspondence.

4. The proceedings involve a dispute between the plaintiff and the defendant as to amounts said to be owed by the defendant to the plaintiff arising out of an agreement between the plaintiff and the defendant which the plaintiff says is in writing and is styled a Sales Agent Agreement. The plaintiff says that it did work for the defendant essentially as a sales agent introducing clients to the defendant’s courier business and it is entitled to be paid for that work in accordance with that agreement. It says that it has rendered invoices but has not been paid.

5. There is no dispute between the parties that there was an agreement between the plaintiff and the defendant and indeed that over a period the plaintiff did work for the defendant and that the plaintiff was paid a significant sum for the performance of that work. Indeed Ms Hulmes, who appears for the defendant, accepted that the defendant has paid the plaintiff a significant amount of commission over a period. The issue appears to be whether any further amounts are payable, bearing in mind that the commercial relationship between the parties has ended.

6. The defendant says that the plaintiff’s pleading, being the original statement of claim and the proposed new statement of claim is deficient; that the original statement of claim should be struck out and, further, that leave should not be granted to the plaintiff to amend the statement of claim in the form proposed by the plaintiff.

7. Having regard to the submissions made by Mr Jobson of counsel, who appeared for the plaintiff, and Ms Hulmes, it is apparent that there are a number of issues between the parties and that the matter is not necessarily so simple as one in which there was an agreement between the parties as to the relationship and the terms governing their relationship. Having said that, the fundamental problem preventing the matter moving forward is that the defendant says that the plaintiff has not properly pleaded material facts on which it relies and that as such the defendant does not know the case it has to meet.

8. The plaintiff originally filed what might be described as a short form statement of claim without pleading a number of material facts. The defendant responded to that short form statement of claim by serving the plaintiff with a notice to plead facts. The plaintiff then served a proposed amended statement of claim on the defendant which led to the defendant requesting further and better particulars of that proposed amended statement of claim.

9. In response, the plaintiff provided a detailed schedule, which is exhibited to the affidavit of Clare Matthews and is at p 59 of the exhibit. The plaintiff submits that that schedule provides sufficient particularisation of the basis of its claim for the services provided and that although there is no precise pleading of the actual services provided, this schedule was sufficient to place the defendant on notice of the plaintiff’s claim.

10. In response, the defendant has pointed to some uncertainty, ambiguity or inconsistency in the schedule and in particular pointed to invoices which merely refer to the fact that the plaintiff did something and then refers to an amount. Those invoices are to be contrasted with other invoices such as the invoice at p 41 of the exhibit to Ms Matthew’s affidavit which contains much more extensive detail as to what was done and when it was done.

11. Essentially, the defendant’s complaint has been that it does not understand and is unable to determine from its own records precisely what work was done, when it was done and for which client the work was done so that it cannot properly plead to the plaintiff’s originating process.

12. The matter is further complicated by virtue of the fact that there are differences between the original amended statement of claim served on the defendant and the proposed amended statement of claim on which the plaintiff now wishes to rely.

13. There are some differences but Mr Jobson has made it plain that he relies on the latter document, not the earlier amended statement of claim. Specifically, he directed the Court’s attention to the written Sales Agent Agreement. He says that the plaintiff relies on that document as governing the relationship between the parties at all relevant times, and by that I mean relevant times to these proceedings, and that his client’s claim for outstanding monies is based on that agreement. As such, it seems to me that there is no longer any uncertainty as to the agreement on which the plaintiff relies.

14. The defendant says that it does not have a signed copy of that agreement or at least that it has not yet been able to locate a signed copy. Ms Hulmes also suggests that, on her instructions, that may not be the agreement which governed the relationship at the relevant time. As I said to Ms Hulmes, that will be a matter for her client to raise in the defence because the plaintiff has now made it clear that it is relying on that written document.

15. The defendant does not submit that, if there was a proper pleading there would still be no cause of action or that in some way that the properly pleaded document should be struck out or that the whole case should be dismissed at this time as it has no foundation and cannot possibly succeed.

16. There is merit in the defendant’s submissions that it is unable to plead properly to the proposed amended statement of claim. There is an obligation on the defendant to admit that there are some amounts outstanding if that be so. In pleading to a case such as this the defendant is obliged to make admissions that there are amounts outstanding if that be so and only deny matters that should be denied. The defendant is entitled to be provided with precise details of the work done, services performed and invoices rendered so that it can form its own view at an early stage as to what amounts, if any, it should be paying. This will also be of benefit to the plaintiff.

17. The answer to the dispute at this stage is thus to require the plaintiff to more specifically plead and prepare a new schedule so that the defendant could have a better understanding of why the plaintiff says that there are still amounts outstanding.

18. Mr Jobson agreed that the case could not really move forward, that is move to a hearing, without the plaintiff being in a position to identify when it performed work, what work it performed, the value of that work and how much it said it was owed by the defendant in respect of that work. No one suggested that in order to succeed in this case the plaintiff would merely tender an invoice which referred to an amount of money without identifying when the work was performed and for whom.

19. In the circumstances I have raised with the parties a way of moving this case forward without striking out the statement of claim at this time, which in my view would serve little purpose. The parties have essentially agreed with my proposed directions.

20. Turning now to the proposed amended statement of claim, which is Annexure A to the affidavit of Mr Weller, it seems to me that the plaintiff needs to provide particulars of the work done under para 6. It is not sufficient merely to plead that services were to be provided in accordance with the agreement. The plaintiff must plead what services were provided. Having said that, the real detail comes with the schedule which I am going to direct the plaintiff to provide.

21. Mr Jobson says that he is no longer relying on para 8; that is, he is not relying on any collateral agreement or variation to the agreement and thus he is going to delete para 8 from the new document. Further, the plaintiff purports to plead some form of estoppel but the material facts are not pleaded and the reason why such an allegation is necessary at this time is unclear bearing in mind that the plaintiff relies on a written agreement and there has as yet been no denial by the defendant that that document governs the relationship. Mr Jobson said that he would not be pressing that allegation in the amended statement of claim. It can be dealt by way of a Reply, if necessary.

22. The problems identified by the defendant can be solved and the matter can move forward if, in para 10, particulars are provided by way of a schedule. That is, the defendant says invoices were rendered to the defendant under the agreed retainer commission rate. The solution is for the plaintiff to provide a proper and detailed schedule. That schedule should identify when the work was done, what work was done, for which client it was done, and the invoice if one has already been issued. That is the type of schedule that the plaintiff will have to provide in due course in any event. That would, in my view, enable the defendant to properly plead to the statement of claim. In particular it could deny or admit that amounts are owing with reference to its own schedule.

23. I would expect that the defendant analyse the plaintiff’s schedule and, if satisfied, make admissions; if not satisfied, it should identify why it says the amount is not payable. That could be done by the preparation of a schedule by the defendant so that the parties would know after exchange of schedules whether there is a dispute about all the invoices, about all of the amounts or only some of them, and the plaintiff would know why the defendant disputes some of them. So, the defendant would include in its schedule whether it agrees that an amount is payable, whether it disputes the amount is payable and why it disputes the amount is payable.

24. I will thus deal with the motions by making the make the following orders:

1. Leave is granted to the plaintiff to file and serve a further amended statement of claim on or before 13 November 2019 in the form annexed to the affidavit of Mr Weller, except that:

1. the plaintiff should include proper particulars of para 6;

2. paras 8, 11 and 12 should be deleted as agreed by the plaintiff; and

3. the plaintiff should provide particulars to paragraph 10 by way of a schedule in the form I have directed.

2. The defendant is to file its defence on or before 11 December 2019.

3. At the same time as filing its defence the defendant should provide a schedule to the plaintiff in response to the plaintiff’s schedule either admitting or denying each of the amounts that is claimed and if the amount is denied, providing some brief particularisation of why it is denied.

4. The plaintiff is to file any Reply on or before 18 December 2019.

5. The plaintiff’s motion filed on 3 September 2019 is dismissed.

6. The defendant’s motion filed on 9 September 2019 is dismissed.

25. Having heard the parties on costs I consider that there should be no order as to costs on the motions. Neither party has succeeded entirely on the motions brought before the Court today but both parties have obtained a part of or some of the orders they sought. Normally costs would follow the event but the statement of claim was not struck out and nor has the plaintiff obtained leave to file its proposed amended statement of claim in the form it sought.

26. There is merit in Ms Hulmes’ submissions that perhaps if a better pleading came before the Court things might have been resolved somewhat but I consider that neither party succeeded entirely and that the parties have been ordered to do things for both of their benefit in the sense the matter will move forward more expeditiously.

27. Bearing in mind the orders and directions I have made I consider that there should be no order as to costs in respect of the two motions.

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Decision last updated: 18 October 2019