Sign a Rama (West Perth) Pty Ltd v Sign*A*Rama Inc (ABN 080 258 215) formerly Speedy Sign a Rama USA Inc
[2001] WASC 192
SIGN A RAMA (WEST PERTH) PTY LTD & ORS -v- SIGN*A*RAMA INC (ABN 080 258 215) formerly SPEEDY SIGN A RAMA USA INC [2001] WASC 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 192 | |
| Case No: | CIV:2762/2000 | 26 JUNE 2001 | |
| Coram: | MASTER SANDERSON | 26/07/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike statement of claim dismissed Application for particulars successful in part | ||
| PDF Version |
| Parties: | SIGN A RAMA (WEST PERTH) PTY LTD (ACN 084 845 956) PETER ANTHONY MARINOVICH CAROLINE ELIZABETH MARINOVICH SIGN*A*RAMA INC (ABN 080 258 215) formerly SPEEDY SIGN A RAMA USA INC |
Catchwords: | Practice and procedure Application for further and better answers to request for particulars Turns on own facts |
Legislation: | Nil |
Case References: | BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 Attorney-General of the Duchy of Lancaster v L & N WR [1892] 3 ChD 274 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Barret-Peacock v State of Tasmania, unreported; SCt of Tasmania; BC 9606415; 20 December 1996 Beach Petroleum NL v Johnson (1991) 105 ALR 456 Benbow v Low (1880) CD 16 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1973] VR 194 Bruce v Odhams Press Ltd [1936] 1 KB 697 Byrd v Nunn (1877) 7 ChD 284 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Cyril Leonard & Co v Simo Securities Trust Ltd [1971] 3 All ER 1313 Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984 Dey v Victorian Railways Commissiones (1949) 78 CLR 62 Dougherty v Nationwide News Pty Ltd (1967) 86 WN(NSW) 181 Duke & Sons v Wisden & Co (1897) 77 LT 67 Gaston v United Newspapers Ltd (1915) 32 TLR 143 General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 Girando v Padbury (1920) 22 WALR 7 Goddard v BHP Iron Ore Ltd, unreported; SCt of WA; Library No 950018; 20 January 1995 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Hubbuck & Sons v Wilkinson [1899] 1 QB 86 Katina Pty Ltd v Westfield Design and Construction Pty Ltd, unreported; SCt of WA; Library No 980059; 13 February 1998 Katsilis v Broke Hill Pty Co Ltd (1977) 18 ALR 181 Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6141; 25 August 1986 Master Butchers Ltd v Commissioner of Taxation [1974] 1 NSWLR 350 Mayor of London v Horner [1914] 111 LT 514 Meckiffe v Simpson (1968) VR 62 Moreton v Delminico Pty Ltd, unreported; DCt of WA; Library No 2492; 21 June 1989 Nagle v Fieldren [1966] 2 QB 633 National Mutual Life Association of Australasia Ltd v Coffey & Partners Pty Ltd (1992) BCL 74 Niven v Grant (1903) VLR 103 NW Sale Co Ltd v Electrolytic Alkali Co Ltd [1913] 3 KB 422 Packard v Transport Trading & Agency Co Ltd (1912) 14 WALR 191 Pan Continental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 Paparone v Konstruct Holdings Pty Ltd, unreported; SCt of WA; Library No 980130; 25 March 1998 Phillips v Phillips [1878] 4 QBD 127 Phipps v Orthodox Unit Trusts Ltd [1958] 1 QB 314 Ridout Nominees Pty Ltd v Bixford Pty Ltd (1989) 166 FCR 202 Southern Resources Ltd v Techmonin Australia NL [1990] WAR 72 State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-690 State of Western Australia v Bond Corporation Ltd (1991) ATPR 41-081 The Australian Gas Light Co v The Valuer General (1940) 40 SR (NSW) 126 The National Mutual Life Association of Australasia Ltd v Blake, unreported; DCt of WA; Library No 2121; 30 June 1988 Todd v Novotny, unreported; SCt of WA; Library No 970029; 7 February 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
PETER ANTHONY MARINOVICH
CAROLINE ELIZABETH MARINOVICH
Second Plaintiffs
AND
SIGN*A*RAMA INC (ABN 080 258 215) formerly SPEEDY SIGN A RAMA USA INC
Defendant
Catchwords:
Practice and procedure - Application for further and better answers to request for particulars - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application to strike statement of claim dismissed
Application for particulars successful in part
Representation:
Counsel:
First Plaintiff : Mr K C Staffa
Second Plaintiffs : Mr K C Staffa
Defendant : Mr A T MacKnay
Solicitors:
First Plaintiff : Kevin Staffa
Second Plaintiffs : Kevin Staffa
Defendant : Deacons
Case(s) referred to in judgment(s):
BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20
Case(s) also cited:
Attorney-General of the Duchy of Lancaster v L & N WR [1892] 3 ChD 274
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Barret-Peacock v State of Tasmania, unreported; SCt of Tasmania; BC 9606415; 20 December 1996
Beach Petroleum NL v Johnson (1991) 105 ALR 456
Benbow v Low (1880) CD 16
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1973] VR 194
Bruce v Odhams Press Ltd [1936] 1 KB 697
Byrd v Nunn (1877) 7 ChD 284
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Cyril Leonard & Co v Simo Securities Trust Ltd [1971] 3 All ER 1313
Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
Dey v Victorian Railways Commissiones (1949) 78 CLR 62
(Page 3)
Dougherty v Nationwide News Pty Ltd (1967) 86 WN(NSW) 181
Duke & Sons v Wisden & Co (1897) 77 LT 67
Gaston v United Newspapers Ltd (1915) 32 TLR 143
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Girando v Padbury (1920) 22 WALR 7
Goddard v BHP Iron Ore Ltd, unreported; SCt of WA; Library No 950018; 20 January 1995
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Hubbuck & Sons v Wilkinson [1899] 1 QB 86
Katina Pty Ltd v Westfield Design and Construction Pty Ltd, unreported; SCt of WA; Library No 980059; 13 February 1998
Katsilis v Broke Hill Pty Co Ltd (1977) 18 ALR 181
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6141; 25 August 1986
Master Butchers Ltd v Commissioner of Taxation [1974] 1 NSWLR 350
Mayor of London v Horner [1914] 111 LT 514
Meckiffe v Simpson (1968) VR 62
Moreton v Delminico Pty Ltd, unreported; DCt of WA; Library No 2492; 21 June 1989
Nagle v Fieldren [1966] 2 QB 633
National Mutual Life Association of Australasia Ltd v Coffey & Partners Pty Ltd (1992) BCL 74
Niven v Grant (1903) VLR 103
NW Sale Co Ltd v Electrolytic Alkali Co Ltd [1913] 3 KB 422
Packard v Transport Trading & Agency Co Ltd (1912) 14 WALR 191
Pan Continental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Paparone v Konstruct Holdings Pty Ltd, unreported; SCt of WA; Library No 980130; 25 March 1998
Phillips v Phillips [1878] 4 QBD 127
Phipps v Orthodox Unit Trusts Ltd [1958] 1 QB 314
Ridout Nominees Pty Ltd v Bixford Pty Ltd (1989) 166 FCR 202
Southern Resources Ltd v Techmonin Australia NL [1990] WAR 72
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-690
State of Western Australia v Bond Corporation Ltd (1991) ATPR 41-081
The Australian Gas Light Co v The Valuer General (1940) 40 SR (NSW) 126
The National Mutual Life Association of Australasia Ltd v Blake, unreported; DCt of WA; Library No 2121; 30 June 1988
Todd v Novotny, unreported; SCt of WA; Library No 970029; 7 February 1997
(Page 4)
1 MASTER SANDERSON: This is the defendant's application seeking further and better answers to certain requests for particulars. As an alternative, the defendant seeks to strike out par 10, par 21, par 25 to par 35 and par 39 of the statement of claim. As the application to strike out these paragraphs is brought outside the 21-day period specified in O 20 r 19(3), leave is required to bring the application. It is convenient if I deal with this issue first.
2 The defendant filed no evidence explaining the delay in bringing this application. That being the case, leave to bring a strike-out application would only be granted in the clearest of cases. In this case the defendant filed a defence and subsequently an amended defence. That indicates whatever the defects in the plaintiffs' statement of claim, the defendant was able to make enough of the pleading to allow a defence to be filed. In the circumstances I would not grant leave to bring this application out of time.
3 Having reached that conclusion, it is unnecessary for me to say anything about the merits of the strike-out application. However, it is apparent from even the most cursory reading of the statement of claim that it is a complex and difficult document. The claim itself relates to a franchise agreement entered into between the first plaintiff and the defendant. In broad terms the first plaintiff says that it did not get what it bargained for. This is a classic misleading and deceptive conduct case, yet the plaintiff has pleaded the case in contract and in tort as well as under the provisions of the Trade Practices Act. Of course, any plaintiff is entitled to plead their case in the way that they see fit. But in this instance I would urge counsel for the plaintiffs to consider again the structure of the pleading and whether or not the claims in contract and tort add anything other than complexity to what, when reduced to its essentials, is a relatively simple case.
4 Turning then to the request for particulars, request 3 relates to par 10 of the statement of claim and in particular, par 10.3. To assist in understanding certain terms used in par 10 and throughout the pleading it is necessary to refer to a number of definitions. The defendant is designated "SAR": par 1 of the statement of claim. The franchise disclosure statement is defined as "FDS": par 8 of the statement of claim. Paragraph 10 of the statement of claim reads:
"10. In the FDS, SAR represented to the plaintiffs that the matters pleaded in paragraphs 10.1 to 10.4 hereof namely:
(Page 5)
- 10.1 …
10.2 …
10.3 By implication, that no one other than SAR franchisees could or did use the 'Sign A Rama' name in Western Australia.
10.4 …"
5 Question 3 and the answer thereto were in the following terms:
"3. Under paragraph 10
State each fact, act, matter, circumstance and thing giving rise to the implication under subparagraph 10.3.
Plaintiffs' Answer
The plaintiffs are not alleging an implied term. They allege an implied representation. The plaintiffs will ask the Court to draw an inference that this representation is to be implied.
The plaintiffs object to further answering this request on the grounds that it is not a proper request for particulars is unnecessary and is oppressive."
6 When par 10 is read as a whole the scheme of the FDS becomes apparent. Par 10.1 pleads that the SAR offered the plaintiff the right to operate an SAR franchise under the trademark name. That representation is to be found in cl 2.3 of the FDS. Paragraph 10.2 pleads that the trademark name was the property of SAR and that SAR franchisees were licensed to use the trademark name. That appears from cl 7 of the FDS. By par 10.4 it is pleaded that there is a representation that there was no infringing or competing uses of the name "Sign A Rama" in Western Australia. Reference is made to cl 7.1(d) of the FDS. As I understand par 10 it is said that the implied representation pleaded in subpar 3 arises by implication from the express representations pleaded in par 10.1 and par 10.2 and perhaps par 10.4. What the plaintiff is alleging is clear. It is said that there was a representation which is to be implied as a consequence of the express representations in the FDS. No other matters are relied upon to give rise to the implied representation. I fail to see that the reference to an "implied term" in the answer is relevant. The request makes no assumption that par 10.3 refers to an implied term. A proper answer to the request would have been a reference to the matters pleaded
(Page 6)
- in par 10.1, 10.2 and 10.4. Equally, I can see no basis upon which objection could be taken on the grounds that the request is oppressive. However, in all the circumstances I am satisfied that the answer makes it plain that there are no other matters which are relied upon other than the express representations to give rise to this implied representation. That being the case, I am satisfied that the answer is adequate and I would not order a further and better answer to request 3.
7 Request 9 relates to par 21 of the statement of claim. Paragraph 21 is in the following terms:
"SAR impliedly represented to the plaintiffs that no other entity was trading under or could trade under the name 'Sign A Rama' or any similar name in Western Australia and it would actively prevent any entity doing so.
PARTICULARS
Refer to paragraph 10 hereof."
8 Request 9 refer to par 21. The question and the answer are as follows:
"9. Under paragraph 21
State each fact, act, matter, circumstance and thing alleged to give rise to the implied representation.
Plaintiffs' Answer
a) The plaintiffs are not alleging an implied term. They are alleging an implied representation. The plaintiffs will ask the Court to draw an inference that this representation is to be implied.
b) shortly before the FA was to be signed, after finance had been arranged the first named second plaintiff heard that there was a business in the Bunbury area using the name 'Sign A Rama' or a similar name and asked HG if he was aware of this. HG admitted he was and represented that SAR would stop this infringing use.
The first named second plaintiff asked HG if there were any businesses using the name 'Sign A Rama' or any similar names in the Perth area and HG said there were
(Page 7)
- none but this was untrue - refer to paragraphs 29.10 and 32(f(ii), (iii) and iv).
- Refer also to FA special clause - amendment to clause 15.6.2;
c) The plaintiffs object to further answering this request on the grounds that it is not a proper request for particulars is unnecessary and oppressive."
9 The answer given in subpar (a) is similar to the answer given to question 3 in relation to par 10. In my view it is made plain by that answer that the representation is to be implied from the express representations referred to in par 21. That makes subpar (b) superfluous. In any event, it is evidence not particulars and is not properly included in the answer. Moreover, it is doubtful whether such evidence could be led given the present state of the plaintiffs' pleaded case. Although what is contained in subpar (b) represents poor pleading practice, it does, if anything, assist the defendant to understand the case it has to meet. I would therefore not order further answers. I would make the same comments in relation to subpar (c) as I made in relation to a similar statement in the answer to question 3. I cannot see how the information requested is in any way oppressive.
10 Request 12 deals with par 25 of the statement of claim. Paragraph 25 reads:
"SAR:
(a) …
and
(b) impliedly represented, by publication of the FDS to the plaintiffs, that no transfer of SAR franchises in Australia had occurred from June 1998 up to and including the time when the plaintiffs executed the FA (Franchise Agreement) as pleaded in paragraph 26.3 hereof."
11 Question 12 referred to par 25 and asked:
"State each fact, act, matter, circumstance and thing relied upon in support of the implied representation in subparagraph 25(b)."
(Page 8)
12 By its terms, par 25(b) says that the implied representation arose from the publication of the FDS. In my view no further particulars are required. Once again I have some difficulty understanding the nature of the plaintiffs' answer to this request.
13 Request 13 deals with par 26 of the statement of claim. By request 13(1) particulars are sought of the plea found in par 26.2 that the plaintiffs accepted the offer referred to in par 11.1.
14 Paragraph 11.1 sets out certain payments that the plaintiff could make to purchase an SAR franchise. The terms of par 26.2 make it plain that the plaintiffs agreed to make these payments and thereby to purchase the franchise. While I have some doubts about the pleading - what is pleaded is a conclusion of law rather than material facts - I am satisfied that in the circumstances no further particulars are necessary.
15 Request 14 deals with par 27 of the statement of claim. This paragraph pleads that certain terms in the FA were express or alternatively implied. There are then listed some 14 terms. The request seeks what might be called the usual particulars. In other words, insofar as the representations are expressed, identify the document, insofar as the terms are to be implied the act, facts, matters and circumstances leading to the implication. The way in which the plaintiffs have answered this request can be illustrated by reference to par 27(b) of the statement of claim and the answer provided with respect to that paragraph. Answer to 27(b) is in the following terms:
"Refer to par 14 of the statement of claim.
The plaintiffs will ask the Court to infer that the matters pleaded therein were intended to constitute and constitutes an express term or promise pleaded in paragraph 27(1)(b) of the statement of claim."
16 Paragraph 14 pleads a representation made by SAR and found in certain clauses of the FDS and the FA. Although it is by no means an easy exercise it is possible by reference to the answer and then reference back to the statement of claim to ascertain whether the plaintiffs are saying that a particular representation in the subparagraphs to par 27 is express or implied and the basis upon which it is either express or implied. While the method employed by the plaintiff is cumbersome and to an extent confusing, I am satisfied that the answer to request 14 is satisfactory.
(Page 9)
17 Request 15 relates to par 28 of the statement of claim. Paragraph 28 pleads the basis upon which terms that are said to be implied are so implied. In doing so it merely adopts the well-known test in BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 at 26. In my view, par 28 of the statement of claim is superfluous. Where it is said that a term is implied in the particulars to par 27, the basis upon which the term is to be implied is outlined in the answers to request 17 by reference back to earlier paragraphs of the statement of claim. As I have said, this is a confusing mode of pleading the terms but on the basis I am satisfied the answer to request 14 is satisfactory, no answer to request 15 is required.
18 Request 16 deals with par 29. Paragraph 29 pleads that certain representations in nominated paragraphs were representations of existing fact which were false and misleading. Particulars are then provided of par 29. With respect, what are referred to as particulars in par 29.1 through to par 29.16 are in fact pleadings of material fact. They should be approached accordingly. By par 29.6 it is said that "the sum of $40,000 was not a sufficient amount for working capital to establish a franchise". Presumably this falsifies the representation pleaded in par 17.1, although par 29.6 is not a precise mirror of par 17.1.
19 By request 16(8) the defendant asks the plaintiff to:
"Specify in what respects '$40,000.00 was not a sufficient amount for working capital to establish the franchise' referred to in subparagraph 29.6."
- In my view this is a reasonable request and it should be answered. The plaintiffs say that the request "seeks evidence not particulars is unnecessary, is unreasonable and is oppressive". In my view the request is in all respects proper and it should be answered.
20 Request 16(11) is in the following terms:
"Give full particulars of the facts relied upon in support of the allegation that the defendant 'intended to open and intends to open …' referred to in subparagraph 29.9".
21 Paragraph 29.9 pleads that:
"SAR did not intend to give the plaintiffs a reasonable opportunity to successfully trade from the franchise premises because it had opened or intended to open and intends to open other franchise outlets, in the nearby vicinity, and did so, with
(Page 10)
- the effect that the plaintiffs were denied a reasonable marketing territory."
22 Particulars of par 29.9 are then provided. The answer to request 16(11) in effect declines to provide any further particulars. I am satisfied in the circumstances that the particulars presently provided of par 29.9 are satisfactory. At trial the plaintiff will be confined to these particulars and the defendant knows the case it has to meet.
23 Request 16(18) refers to par 29(15). That paragraph reads as follows:
"SAR knew or should have known that prior to the plaintiffs entering into the FA:
(a) the by-laws operating in West Perth and in Subiaco provided for stringent signage restrictions making it difficult if not impossible to obtain permission to erect 'A' frame signs, roof-mounted signs and neon signs; and
(b) the City of Subiaco had initiated a policy of reducing the signs permitted in main roads such as Rokeby Road and Hay Street."
24 By request 16(18) the plaintiffs are asked to provide full particulars of the facts relied upon in support of the allegation that SAR knew about the matters referred to in the two subparagraphs to par 29.15. The answer referred to par 22 of the statement of claim. Paragraph 22 pleads that SAR represented to the plaintiffs that it had carried out certain demographic studies and market research. In my view reference to this paragraph is sufficient to satisfy the request for particulars.
25 Request 17 refers to par 30 of the statement of claim. Paragraph 30 pleads that certain nominated representations were representations as to future matters. The request seeks particulars of "each fact, act, matter, circumstance or thing relied upon in support of the allegation that the representations were made without any reasonable basis". The plaintiffs are also asked with respect to each representation to specify the "future matters". The plaintiffs' response is to say that "the court (will be asked) to draw an inference from the matters pleaded in the statement of claim that the representations referred to them were made without any reasonable basis". In the circumstances I am satisfied that is an adequate response. It is a matter of matching the various representations pleaded throughout the statement of claim with other pleaded material facts and
(Page 11)
- ascertaining how it is said the representations were made without any reasonable basis. While that does involve some scrambling with the statement of claim, I am satisfied that the particulars are there and that the pleading is sufficient. I would not order any further answers.
26 Request 18 deals with par 31 of the statement of claim. Paragraph 31 is in the following terms:
"The representations pleaded in paragraphs 10.1 to 10.4 and 11.1 to 25 were representations of opinion but they were not honestly and reasonably based because SAR had not carried out or properly carried out any necessary research or studies in Western Australia and by making them SAR engaged in misleading and deceptive conduct".
27 Properly viewed, par 31 is a combination of a pleading of material fact and particulars. The particulars provided are that SAR had not "carried out or properly carried out" the research specified. In my view that is a sufficient particular of the pleaded material fact. The request by the defendant to specify the persons who held the opinion is not a particular which can materially assist the defendant in understanding the case it has to meet. It is apparent from the pleading that there are a limited number of officers of the defendant. Moreover, the pleading identifies the main players of the defendant and in my view, that is sufficient.
28 Request 19 deals with par 32. Paragraph 32 pleads matters which the plaintiff says SAR knew or should have known at the date of making the representations. Requests 19(1) and (2) seek particulars as to how it is said SAR knew or should have known about the matters pleaded. In this instance I am satisfied that particulars of knowledge ought be provided. There is nothing in the answer or in the pleading itself which indicates how the knowledge is said to arise. The defendant is entitled to such particulars.
29 Request 19(4) deals with a plea in par 32(h) that the FDS did not comply with the requirements of a certain code of conduct. Reference is made in par 32(h) to par 29 of the statement of claim and to the preceding subparagraphs of par 32. Although the answer to the request is unhelpful I am satisfied that there is sufficient in par 32(h) to alert the defendant to the case it has to meet. I would not make any order for further particulars.
30 Request 21 deals with par 34. This paragraph alleges that as a consequence of certain actions on the part of SAR there arose a duty upon
(Page 12)
- SAR to make disclosure to the plaintiffs. By their request the defendant seeks to have the plaintiffs detail the circumstances which gave rise to the duty to disclose.
31 Paragraph 34 itself makes reference to certain other paragraphs of the statement of claim. I am satisfied that contained within par 34 are sufficient particulars to allow the defendant to know how it is said the duty to disclose arises. I would not order further particulars.
32 Request 22 deals with par 35 of the statement of claim. It is pleaded that pursuant to the Corporations Law conduct by the officers of SAR is deemed to be conduct of SAR. Quite why this plea is necessary I am not sure. By request 22 the plaintiffs are asked to identify each officer with respect to each of the paragraphs where conduct occurred. In my view it is unnecessary for the purposes of the defendant, knowing the case it has to meet, for these particulars to be provided. Accordingly I would not order any further answer to the request.
33 Request 24 deals with par 39. Paragraph 39 alleges breaches by SAR of the FA. By way of example, par 39(a) alleges a breach of the FA in the following terms:
"SAR failed to provide a franchise under which the plaintiffs could use the Trade Mark Name to the exclusion of all others apart from other SAR franchisees."
34 Request 24(1) asks:
"State each fact, act, matter, circumstance and thing relied upon in support of the allegation that 'SAR failed to provide a franchise …' "
35 The issue raised by par 39(a) is really a question of fact. Either SAR did or did not do what is alleged in par 39. By par 22(4) of the amended defence this allegation is denied. In other words the defendant says pursuant to the FA it did provide the franchise. In my view particulars of a negative assertion are unnecessary to allow the defendant to know the case it has to meet. On that basis I would not order any further and better answers. Similar reasoning applies to the remaining requests directed at par 39.
36 On that basis then I would order further and better answers to request 16(8), 19(1) and 19(2). Otherwise the defendant's chamber summons will be dismissed.
(Page 13)
37 I will hear the parties as to the precise form of order and as to costs.
0
12
0