SIHI Pumps Australia Pty Ltd v Ford
[2009] VSC 661
•15 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
S CI 2007 9712
| SIHI PUMPS AUSTRALIA PTY LTD (ACN 005 663 650) | Plaintiff |
| and | |
| JOHN DAVID FORD | First Defendant |
| and | |
| Second Defendant | |
| PETER RONALD KRICK | |
| and | |
| DAVID CHARLES PIKE | Third Defendant |
---
ASSOCIATE JUSTICE: | Gardiner AsJ | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24 February 2009, 28 July 2009, 21 August 2009 | |
DATE OF JUDGMENT: | 15 December 2009 | |
CASE MAY BE CITED AS: | SIHI Pumps Australia Pty Ltd v Ford & ors | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 661 | |
---
PRACTICE AND PROCEDURE – DISCOVERY - Application for further and better discovery under rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2005
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Bevan-John | G K LAW |
| For the First and Second Defendants | Mr M Rinaldi | Juliano, Furletti & Scott |
HIS HONOUR:
The first and second defendants by summons filed 17 February 2009 seek orders against the plaintiff for further and better discovery of 81 categories of documents and for further and better particulars of the further amended statement of claim. This application was heard over three days in February, July and August 2009.
Factual background
The first defendant (Mr Ford) was employed by the plaintiff SIHI Pumps Australia Pty Ltd (“SIHI”) as the general manager of its service division. It is alleged that he was employed pursuant to a contract made in August 2002 but that he was previously employed by SIHI under a different agreement. The second defendant (Mr Krick) was employed from 1998 by the plaintiff as its workshop supervisor and, subject to some direction from Mr Ford, was responsible for controlling SIHI’s workshop and for service and repairs. The third defendant (Mr Pike) who is not a party to this application, was employed as SIHI’s general manager. SIHI is involved in the sale and servicing of industrial pumps.
SIHI says that Mr Ford and Mr Krick, without its knowledge, registered the business name Pump Solutions Aust in respect of the business of pump sales and services, registered the business name GW Industries in respect of the business of engineering supply and transferred the ownership of these two names to a company controlled by them, Port Investments Vic Pty Limited.
SIHI also says that, without its knowledge, either or both of Mr Ford and Mr Krick procured the registration of the business names Speck Pumps, Walker Fabrications, Bass Engineering and Hurl Industries. It alleges that Mr Ford and Mr Krick have used the names in the course of diverting business from the plaintiff to them.
They are alleged to have done this in several ways:
· diverting repair work of pumps to one or other of the enterprises trading under the above names (it being alleged by SIHI that the work should have been handled directly by the plaintiff) and then charging the plaintiff;
· using their knowledge of incoming orders received during their employment and of the inventory of spare parts held by SIHI to acquire such parts cheaply from SIHI and using them to fulfil repair work diverted to their businesses;
· providing sub-contractor services to SIHI without disclosing their involvement in the business name through which the transaction took place;
· buying parts from SIHI at its lowest reseller’s price and onselling them to a customer without disclosing to SIHI their involvement with the business name or entity through which that transaction took place (these are referred to in the further amended statement of claim as “parts transactions”);
· via the business name “Pump Solutions” entering into a contract with Alderley Systems Pty Ltd, a customer, and then subcontracting that work to SIHI at a lower price without disclosing to SIHI their involvement with Pump Solutions (this is referred to in the statement of claim as the “Alderley transaction”).
SIHI says that Mr Ford and Mr Krick were in breach of the terms of their employment and section 182(1) of the Corporations Act 2001 (which deals with improper use by employees of their position as employees) at SIHI and that, as a result, it has suffered damage totalling $1,213,905. A number of allegations are made against Mr Pike which involved Messrs Ford and Krick in relation to the “Alderley transaction”. In their defence, Messrs Ford and Krick essentially contend that SIHI, after becoming aware of the conduct complained of, condoned it on the conditions that such conduct would cease and that Messrs Ford and Krick would remain in the employ of SIHI. It is alleged that those conditions were complied with.
The application for further discovery
Messrs Ford and Krick’s application for further discovery is supported by an affidavit of their solicitor, Bartholomew Potenza sworn 17 February 2009 and Mr Ford, sworn 20 March 2009.
The early parts of Mr Potenza’s affidavit describe disagreements between the parties’ solicitors concerning discovery and inspection of documents. On 29 September 2008, Mr Potenza wrote to the plaintiff’s solicitors complaining that the plaintiff’s affidavit of documents sworn by Mr King on 29 August 2008 was substantially deficient. Mr Potenza stated that significant relevant documentation had not been disclosed and a list of 63 documents was appended to the letter. On 14 November 2008, the plaintiff’s solicitors forwarded a letter to Mr Potenza enclosing the plaintiff’s affidavit of documents in response to the third defendant’s Notice of Discovery. Certain additional documents, numbered 755 to 759, were included in that affidavit. Mr Potenza says that the affidavit of documents sworn by Mr King on 14 November 2008 does not include documentation referred to by the plaintiff’s solicitors in correspondence to Mr Potenza’s firm since the swearing of the original affidavit of documents. These are described in paragraph 27 to Mr Potenza’s affidavit.
At a directions hearing on 10 December 2008, consent orders were entered into which provided that the plaintiff’s would swear a consolidated affidavit of documents by 15 January 2009. On 13 January 2009, an unsworn consolidated affidavit of documents containing a total of 768 items was sent to the plaintiff’s solicitors and this was followed up by a sworn version of this document which included one further item.
The saga continued. Mr Potenza’s affidavit describes tensions at the inspection of documents. Following the inspection of documents, a second list of documents (which is exhibit BP17A to Mr Potenza’s affidavit) was compiled and these documents are sought in addition to the documents described in exhibit BP9.
In his affidavit of 20 March 2009, Mr Ford deals with the 81 separate categories of documents on and from paragraph 17 of the affidavit.
Gordon Alan King, who is a director of SIHI, has sworn an affidavit on 8 April 2009 in which SIHI’s position as to the documents sought in this application is set out. I have had reference to this affidavit and that of Messrs Ford and Potenza when considering each of the categories of documents sought in the application.
Discovery in this proceeding is general discovery, that is, it is not limited to any classes or categories of documents and the Peruvian Guano[1] formulation of what is required to be discovered is applicable.
[1]Compagnie Financiere Du Pacifque v Peruvian Guano Co (1882) QBD.
Legal principles to be applied
Before embarking on that exercise, it is appropriate to succinctly set out the relevant principles in applications for further and better discovery under rule 29.08 of the Supreme Court (General Civil Procedure) Rules (“the rules”). That rule provides relevantly:
...
(2)Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating –
(a)whether that document or any, and if so what, document or documents of that class is or has been in that party’s possession; and
(b)if it has been but is no longer in that party’s possession, when the party parted with it and that party’s belief as to what has become of it.”
So far as the application is also made under rule 29.11, that rule provides:
Where a party –
(a)fails to make discovery of documents in accordance with Rules 29.03 and 29.04…
the Court may order the party to do such act as the case requires.
Under rule 29.08 it is sufficient if the party applying for further discovery shows that “there are grounds for a belief” that other material documents “may have or may have been” in the possession of the party making discovery. The rule contemplates that where discovery is found to have been inadequate, the party who made discovery is to make a further affidavit stating whether a document or class of documents thought to be in existence or has been in the possession of the party. The question of what is relevant in this context is ultimately a matter to be determined by reference to the pleadings and an application of the test in Compagnie Financiere Du Pacifque v Peruvian Guano Co[2] where Brett LJ said:
…I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action.
It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences… (emphasis in original text).
[2](1882) 11 QBD 55 62-63.
The further discovery sought
Mr Potenza, in paragraph 27 of his affidavit, makes reference to several letters which form exhibit BP12. These letters in turn make reference to other documents described in the respective bullet points in the affidavit to those letters. In my view, the documents which have been referred to by the plaintiff in correspondence concerning the issues in this proceeding are discoverable on an application of the test described above and the plaintiff should make discovery of those documents (which are identified in the bullet points underneath the headings describing such letters).
In regard to the letter of 17 September 2008, in the final bullet point where there is reference to “all flight bookings relating to Mr Ford”, this will be confined to those flight bookings referred to in that letter.
Mr Rinaldi, Counsel for Messrs Ford and Krick, stated that document numbers 5, 53, 55, 56, 57, 61 and 62 have already been discovered but that this was not evident from the description given to them in the affidavits of documents which have been provided. They are not pursued in this application.
I now turn to the documents described in exhibit BP9 to Mr Potenza’s affidavit. The affidavits of Mr Potenza and Mr Ford filed on behalf of the Messrs Ford and Krick, on the one hand, and Mr King of 8 April 2009 on behalf of SIHI on the other, respectively set out their positions on the question of whether there should be further discovery of the particular document or category of documents sought.
I note that in many if not the majority of the categories sought, Mr Ford deposes that he knows from direct knowledge of the existence of the subject document or category or is informed by others of their existence and believes such to be true.
By way of response, in paragraph 19 of his affidavit, Mr King makes the complaint that to make the discovery sought would “be oppressive, expensive and time wasting” but aside from that assertion, it is not said why this is so. He states that where he uses the expression “do not exist in the plaintiff’s records” (which literally construed would normally be regarded as conclusive), he means “I have not found that document or class in the documentation or records under SIHI’s possession or control”. He does not specify what searches have been made. Below, where I make an order for further and better discovery, I do not consider that formulaic response to a specific request for further discovery of a class of documents meets the requirements of rule 29.08(2). The relevant officer of SIHI will be required to depose to the matters described in rule 29.08(2) in the way required by that rule, not produce a duplicate affidavit of the current affidavit of discovery.
In a number of categories SIHI has asserted that the documents sought are confidential and should not be disclosed to the first and second defendants who are rivals in trade to the plaintiff. A balance must be struck in the circumstances of such an assertion. Where the document has not previously been sighted by Messrs Ford or Krick and such a claim is made, I will order that the document in question only be inspected by Messrs Ford and Krick’s solicitors and their nominated experts and that those persons not divulge its content without further order of the court. If Messrs Ford and Krick’s legal advisors ultimately consider the defence is prejudiced by such a restriction they can approach the court.
I shall adopt the numbering and description of the category of documents sought in exhibits BP9 and BP17A adjacent to which I will state my ruling as to whether the document or category of documents should be the subject of further discovery or not. It will be seen that on occasion I have restricted access to the documents to the solicitors for Messrs Ford and Krick because SIHI has raised concerns as to commercial sensitivity. I am anxious that this litigation proceed expeditiously and that the tensions surrounding discovery be limited as far as possible. It is for that reason that I have acceded to SIHI’s position in that regard.
1.
Labour cost rates for First Defendant and Second Defendant for the years 1998 – 2006 inclusive.
Mr Ford deposes that he is personally aware of this documentation. In paragraph 20, Mr King deposes that “these documents do not exist in the plaintiffs’ records”. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
2.
Workshop operating costs for years 1996 – 2008.
Mr Ford deposes that he is personally aware of this documentation. Mr King says that these documents “do not exist”[3]. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. As a matter of discretion I would confine the years to be discovered to 2000 – 2008. If a claim for legal professional privilege is asserted, which I would find difficult to accept given the description of the documents, it should be claimed in the appropriate way.
3.
Purchase Price for Channel, Pipe, Brass Sheet, Aluminium Sheet, Flanges & Bar Stock for the years 1996 – 2008.
Mr Ford deposes that he is personally aware of this documentation. Mr King says that these documents “do not exist”. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. The years to be discovered should be limited to 2000 – 2008.
4.
Monthly Sales Figures showing Invoiced Value, Costs & Profit Margins for the years 1996 – 2008.
Mr Ford deposes that he is personally aware of this documentation. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. Mr King asserts that they are commercially sensitive and I will order that they be accessed only by the first and second defendants’ legal advisers and their nominated experts and not be shown to the clients. Mr King says that reports for 2005-2008 only exist. He should depose to the position as the rules require.
5.
Copy of all purchase orders to Defendants for each entity in the Amended Statement of Claim.
Not pursued.
6.
Aftermarket Sales figures from 1996 to 2008.
Mr Ford deposes that he is personally aware of this documentation. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. Mr King asserts that they are commercially sensitive and I will make an order that they be accessed only by the first and second defendants’ legal advisers and their nominated experts and not be shown to the clients.
7.
Copy of the internal memo issued by Sihi management after June 2006 advising that a copy of the Sihi Terms & Conditions must be sent with quotes and order acknowledgments.
Mr Ford deposes that he is personally aware of this documentation being issued by SIHI to all its office staff between June and November 2006. I consider that there are grounds for a belief that this document may be or have been in the possession of SIHI and that it is relevant to the Alderley claim. Mr King says that a document of this description was created in June 2007 and I consider that any document meeting this description should be discovered.
8.
Copy of Plaintiff’s Written Down stock Policy.
Mr Ford says that he was informed of the existence of this policy by Mr Addis of SIHI in 2005-6 at SIHI's premises. Mr King says that a document of this character, described in paragraph 27 of his affidavit, exists. I consider this document is relevant to the issues raised in paragraph 7 of the Amended Statement of Claim. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
9.
Copy of the email/memo from Dickon Addis in June 2005 advising of the disposal of written off stock.
Mr Ford deposes that he is personally aware of this documentation. Mr King states in paragraph 28 of his affidavit that the plaintiff has already discovered the email in document 745. I consider that this document is relevant to the issues raised in paragraph 7 of the Amended Statement of Claim. I consider that there are grounds for a belief that this document may be or have been in the possession of SIHI, it is relevant to the question of damages and it is discoverable.
10.
List of Pumps written off from 1998 – 2006.
In paragraph 28 of his affidavit Mr Ford deposes that he is personally aware of this documentation having seen “it” in an email to office staff. He says that this documentation was circulated by staff to each other (suggesting it to be a singular document). Mr Ford asserts that “the document does not exist on the plaintiff’s records.” I consider that this documentation is relevant to the issues raised in paragraph 7 of the Amended Statement of Claim. I consider that there are grounds for a belief that a document or documents meeting this description may be or have been in the possession of SIHI, are relevant to the question of damages and are discoverable.
11.
Copy of the Price Lists for the years 1996 – 2008. Full List Pricing along with Reseller/Agent pricing.
Mr Ford deposes that he is personally aware of this documentation. These documents are relevant to the issues raised in paragraph 7 of the Amended Statement of Claim. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable, save to the extent there has already been discovery for the years 2005 and 2006. Mr King asserts that they are commercially sensitive and I will order that they be accessed only by the solicitors for Messrs Ford and Krick and their nominated experts and not shown to the clients. Mr King asserts in paragraph 30 that other documents in this category have already been discovered and for the sake of convenience he should depose where in the affidavit of documents they are mentioned. If any of the documents in this category have been destroyed the usual matters should be deposed to in that regard.
12.
Copy of Transfer Price Lists for the years 1998 to present.
Mr Ford deposes that he is personally aware of this documentation which was forwarded to all sales staff in 2004. Mr King asserts that “the documents do not exist”. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
13.
Copy of Shipping & Freight Forward costs from 1998 to present.
Mr Ford, in paragraphs 31, 32 and 33 of his affidavit, deposes that he viewed this documentation at management meetings. Mr King assets that “the documents do not exist”. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. Despite contending that the documents do not exist Mr King asserts that they are commercially sensitive and I will make an order that they be accessed only by the solicitors for Messrs Ford and Krick and their nominated experts .
14.
Copy of Airfreight &F5%% Forward costs from 1998 to present. (Consolidated Rates)
See 13 (above).
15.
Copy of Direct Airfreight & Freight Forward cost from 1998 to present.
See 13 (above).
16.
Cost sheets for Manufacture of Separators from 2002 – 2008.
Mr Ford deposes in paragraph 34 of his affidavit that he is personally aware of this documentation which was distributed by Mr Bosen, SIHI's engineer to all sales staff of SIHI, including him, every year. Mr King asserts that “the documents do not exist”. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
17.
Cost sheets for manufacture of Bases from 1998 to present.
In paragraph 34 of Mr Kings’ affidavit he deposes that one document of this category exists but says it is commercially sensitive. I consider that there are grounds for a belief that this category of documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. I will order that the documents discovered only be accessed by the solicitors for Messrs Ford and Krick and their nominated experts .
18.
Cost sheets for manufacture of Pipework from 1998 to present.
See 16 (above).
19.
Cost sheets for manufacture of guards from 1998 to present.
See 16 (above).
20.
Cost sheets for SW/RRS Coupling supply from 1998 to present.
See 16 (above).
21.
Cost sheet for painting of Pumpsets from 1998 to present.
See 16 (above).
22.
Cost sheets for Assembly LEM Pumpsets from 1998 to present.
See 16 (above).
23.
Cost sheets for Shims on pumpsets from 1998 to present.
See 16 (above).
24.
AIP, Homewood & Brittania quotations for assembly, manufacture of pumpsets.
Mr Ford deposes that he is personally aware of this documentation. Mr King states that quotations have been obtained from these identified parties over the last 20 years. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. The documents sought are not limited as to time and I will only order discovery of the documents generated in the period 1998 to the present as discovery before that time would be oppressive.
25.
Copy of all emails/memos from Dave Pike to Tony Lukes in 2002/2003/2004 advising of recommendations for Plaintiff’s direction in Australia.
Mr Ford deposes as to the existence of these documents whereas Mr King deposes that they do not exist. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
26.
Copy of all emails/memos from Dave Pike to Theo Roewekamp in 2004 advising recommendations for the future of Australia as per item “25”. See 25 (above). Further, Mr King concedes the existence of two documents meeting this description. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
27.
2006, 2007 and 2008 pricing for the LPHR 75330 AB ADG OB O Bareshaft Pumps.
Mr Ford deposes as to the existence of these documents in paragraph 27 of his affidavit. Mr King asserts that “the documents do not exist”. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
28.
Evidence of employee level (numbers of employees in the workshop) from 1989 to present.
Mr Ford deposes that this category of documents exists. Mr King deposes that payroll records in respect of employees are confidential to SIHI and its employees but the defendants are bound strictly as to the use that such documents can be put by the Harman principle.[4] I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. The period for which discovery is sought too wide and I shall order that documentation from the beginning of 1998 onwards be discovered.
29.
Copy of Marketing Overview & Business Plan from 1998 to present.
Mr Ford deposes in paragraph 40 of his affidavit that this category of documents exists. Mr King deposes that the documents are commercially sensitive however, I consider that in light of the fact that the documents have already been sighted by Mr Ford a confidentiality order would be otiose. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
30.
Copy of Tony Lukes reports to Head Office on Aftermarket figures within Australia from 1998 to his retirement.
Mr Ford deposes as to the existence of this category of documents. Mr King asserts that “the documents do not exist.” I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
31.
Copy of Individual Sales figures for the Sales Team & Aftermarket Team from 1998 to present.
Mr Ford deposes as to the existence of this category of documents. Mr King concedes as to the documents’ existence for the period November 2004 to the present but contends they are commercially sensitive. However, confidentiality orders would be otiose as Mr Ford has deposed that he has sighted the documentation over a number of years. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
32.
Copy of profit and loss statements from 1996 to 2008 inclusive.
Mr King concedes the existence of these documents. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
33.
Copy all emails, letters, memos etc (from related companies in 2006) regarding the stiff competition from subcontractors within Australia and showing suggested list prices.
Mr Ford has deposed that these documents exist. Mr King concedes the existence of documents within this category. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable.
34.
Copies of all emails, letters, memos etc between Theo Roewekamp, Dickon Addis, Juergen (German Director of Sihi) and Roger McMahon regarding Defendants’ businesses in 2006.
Mr Ford has deposed that he was informed of the existence of this category of documentation by Remke Dubois in September 2006. It is relevant to the issue of condonation, the alleged improper conduct and the counterclaim and should be discovered. If certain of the documentation is privileged as is asserted by Mr King that can be claimed in the appropriate way. See also the ruling under category 52.
35.
Copies of all emails, letters, memos etc from Andrew at Javac to Juergen and Theo Roewekamp regarding PSA & GW in early 2006
Mr Ford has deposed that he was informed of the existence of this documentation by Remke Dubois in July 2006. It is relevant to the issue of condonation and should be discovered. If SIHI claims privilege it should be claimed in the appropriate manner.
36.
Alderley project – copies of all emails, letters, memos etc between Adrian Bosen, Alderley and SIHI Canada relating to the project.
Mr King deposes in paragraph 53 of his affidavit that these documents have already been discovered and are document numbers 663, 664 and 665 although this is disputed by Messrs Ford and Krick. The position may need to be revisited after the further inspection of documents.
37.
Copy of Rick Duque quotation from SIHI Canada to SIHI Australia showing the Transfer Price for the ABS Style Project.
Mr Ford deposes as to the existence of this documentation. Mr King asserts that “the documents do not exist.” It is relevant to the issue of damages (more particularly the matters mentioned in the Second Schedule to the Further Amended Statement of Claim) and should be discovered.
38.
Copies of all emails, letters, memos etc between John Ford (Remko, Dubois, Theo Roewekamp and Gordon King) regarding the sale of a stainless steel LPH 65000 Pump in December 2006.
There is no evidence to support the assertion of relevance of these documents and the application is refused.
39.
Copy of Warranty Claims made on Sihi Australia from 1994 to present.
Mr Ford deposes as to the existence of this and the categories of documents described in 40 - 43 below. They are relevant to the issue of damages and should be discovered but the time period sought is too wide. Discovery should be made for the years 1996 onwards in lieu of 1994.
40.
Copy of warranty claims made on Sihi Australia Aftermarket division from 1994 to present.
See 39 (above).
41.
Copy of warranty claims made on New Product division from 1994 to present. Niro and Huntsman Chemicals.
See 39 (above).
42.
Copy of inter company Warranty claims made on Australia from 1994 to present.
See 39 (above).
43.
Copy of Warranty claims made on Australia from Asian companies. See 39 (above).
44.
Copy of expense claims made from Sihi (SFS) Asia on Sihi Australia (SFS Australia) for Sales Fees to the Customer.
I do not consider that the relevance of this and categories 45, 46, 47 and 48 was established. The applications in respect of these categories are refused.
45.
Copy of Sales Commissions made from Singapore and paid into China/Taiwan for large project orders. Taiwan = SIHI Dry Units. Indonesia jobs.
See 44 (above).
46.
Copy of Quotation from SIHI Australia to Sunjet Ind for 2 Titanium Compressors and a copy of the purchase order/invoice for the same job. Copy of commission breakdown from Sunjet China to Dickon, Addis in Singapore office showing distribution/allocation of funds.
See 44 (above).
47.
Signed Statement and any emails, letters, memos etc from SIHI Germany (Manfred Boehm) stating payments to third parties on orders from ALLMASTER in Taiwan
See 44 (above).
48.
Documentation, emails, statements from SIHI Management stating that commissions have been paid to customers in Asia.
See 44 (above).
49.
List of workshop equipment prior to Plaintiff’s move into current new premises.
Mr Ford deposes as to the existence of this documentation and that described in category 50 below. Mr King concedes its existence but asserts such documentation is commercially sensitive. . I order that it be discovered. I consider this c. I will order that the documents discovered only be accessed by the solicitors for Messrs Ford and Krick and their nominated experts. This category and category 50 are relevant to the issue of damages as they go to the ability of SIHI to carry out work “in house.”
50.
Listings of new equipment in the new (SIHI) workshop.
See 49 (above).
51.
Copies of all documentation supporting allegations of diverting of business from customers directly to Defendants’ businesses. Copies of all documentation supporting allegations that Defendants purchased parts cheaply.
Mr King says in paragraph 65 of his affidavit that these documents have already been discovered by SIHI as documents 744-747. This is presently accepted by Counsel for Messrs Ford and Krick. Further inspection of documents will take place.
52.
Paragraph 2 – Particulars – Copy of all emails between Dickon, Remko, Dubois, Theo Roewekamp, Juergen (German Director) and Roger McMahan (UK) regarding First Defendant and Second Defendant from 1 January 2006 to 15 December 2007.
This category is very similar to category 34 save that it seeks documents concerning the first and second defendants themselves as distinct from their businesses and the period for which discovery is sought extends to 15 December 2007. I consider that there are grounds for a belief that these documents may be or have been in the possession of SIHI, they are relevant to the question of damages and they are discoverable. They are relevant to the issue of condonation, the alleged misconduct of Messrs Ford and Krick and to the counterclaim arising from their alleged improper dismissal and they should be discovered. The persons identified, although not all SIHI employees were in all probability acting in their capacities as agents or associates of SIHI when engaging in such communications. Messrs Roewekamp and McMahan were directors of SIHI on and from early 2004.
53.
Copy of all bonus letters to Defendants from SIHI management in January/February 2007 advising bonus and praise for our efforts in 2006.
Not pursued.
54.
All correspondence and evidence relating to the matters referred to in Paragraph 6 of the reply and counterclaim dated 21 August 2008.
In paragraph 68 of his affidavit Mr King says that this document is to be discovered as document 770. Each document within that category should be listed. (This category originally made mistaken reference to paragraph 6 of the Amended Statement of Claim).
55.
Copies of all emails from Gordon King to SIHI management regarding the Defendants’ conduct, termination and litigation from 1 January 2007 to 1 January 2008.
Not pursued.
56.
Copy of any emails, letters, faxes etc from First Defendant to Gordon King in relation to “Document Retention” dated approximately November 2007.
Not pursued.
57.
Copy of any emails, letters, faxes etc from First Defendant to Gordon King titled “Downturn in Workshop Activity” dated approximately November 2007
Not pursued.
58.
Copy of any emails, letters, faxes etc from Dave Pike re: “2004 end of year results” dated approx 9 December 2004.
Mr King says that these documents have already been discovered by SIHI as document 754.O. This is presently accepted by Counsel for Messrs Ford and Krick. Further inspection of documents will take place.
59.
Copy of any emails, letters, faxes etc from Dave Pike re: “Aust Business” dated approximately early May 2004.
Mr King says that these documents have already been discovered by SIHI as document 754.O. This is presently accepted by Counsel for Messrs Ford and Krick. Further inspection will take place.
60.
Copy of any emails, letters, faxes etc to Tony Lukes re: “Aftermarket Business Plan” approximately end of August 2000.
Mr King says that these documents have already been discovered by SIHI as document 754.W1. This is presently accepted by Counsel for Messrs Ford and Krick. Further inspection of documents will take place.
61.
Copy of any emails, letters, faxes etc from Gordon King to Defendants re: “written off stock” dated early Feb 2007.
Not pursued.
62.
Copy of any emails, letters, faxes etc from First Defendant to Gordon King re: “written off stock” dated mid to the end of May 2007
Not pursued.
63.
Copy of any emails, letters, faxes etc from Tony Lukes re: “salary review” dated mid Jan 2002.
Mr King says that these documents have already been discovered by SIHI as document 754.W1. This is presently accepted by Counsel for Messrs Ford and Krick. Further inspection of documents will take place.
64.
Copy of file re: Allflo LPH 65000 pump sold in December 2006.
This documentation is conceded by Mr King to exist in paragraph 79 of his affidavit. I consider that it is relevant to the issue of the improper conduct which SIHI accuses Messrs Ford and Krick of and it should be discovered. SIHI contends that it is commercially sensitive however Mr Ford states that he is personally aware of the file and its contents and, as such, an order preventing access would in my view be otiose.
65.
Copy of Manildra file re: LPH Stainless steel pumps sold in approximately September 2006.
This documentation is conceded by Mr King to exist in paragraph 80 of his affidavit. I consider that it is relevant to the issue of the improper conduct which SIHI accuses Messrs Ford and Krick of and it should be discovered. SIHI contends that it is commercially sensitive however Mr Ford states that he is personally aware of the file and its contents and, as such, an order preventing access would be otiose.
66.
QILU Project – copies of quotations from SIHI to Sunjet (China) for Titanium/compressor.
This document and those documents/ categories described and sought in paragraphs 67 to 74 concern the commissions paid to SIHI’s customers in certain overseas transactions. Mr Ford deposes as to their existence (or in the case of item 67, why it should be inferred that those particular documents exist). They are relevant to the issue of loss and damage in the Alderley transaction as they may establish that such commissions were typically paid and would probably have been paid by SIHI and arguably be taken into account in the calculation of the loss or damage which SIHI has suffered by reason of the Alderley transaction. They should be discovered.
67.
QILU Project – copy of Sunjet Order.
68.
QILU Project – copy of invoice from SIHI to Sunjet.
See 66 (above).
69.
QILU Project – copy of the email from Dickon Addis to Sunjet requesting a breakdown on where the commissions were paid.
See 66 (above).
70.
QILU Project – copy of email and cost sheet from Sunjet to Dickon Addis showing where commissions were paid.
See 66 (above).
71.
Copy of letters/emails which show commissions paid by SIHI Germany to Allmaster in Taiwan.
See 66 (above).
72.
Sinopharmp Project – Joseph Yu expense form for commissions paid to customer in Taiwan.
See 66 (above).
73.
Copies of Singapore costs sheets showing breakdowns of commissions paid to Sinopharm.
See 66 (above).
74.
Copies of Singapore costs sheets showing breakdown of commissions paid for Indonesian companies for orders.
See 66 (above).
75.
All relevant information/documentation relating to James Konstantinidis Flight Information to USA.
This issue is referred to in the letter dated 17 September 2008 from the solicitors for SIHI which is the first document in exhibit BP-12. The documents sought are relevant. Mr King says that these documents have already been discovered by SIHI as part of document 653. Further inspection of documents will take place.
76.
All relevant information/documentation relating to Tanya Marangoudis Flight Information to USA.
See 75 (above).
77.
Email from David Pike to Sean Hampson (UK Director) re the Loss Made by SIHI Australia being absorbed by SIHI UK.
I do not consider that the relevance of this document and documents 78 to 81 has been established and the application for further discovery of them is refused.
78.
Email reply from Sean Hampson to David Pike as per 77.
See 77 (above).
79.
Email from Dickon Addis to David Pike denying 77 & 78 above.
See 77 (above).
80.
Email from Theo Roewekamp to David Pike denying 77 and 78 above.
See 77 (above).
81.
Email from David Pike to both Dickon Addis and Theo Roewekamp forwarding a copy of Sean Hampson email showing contradicting Theo Roewekamp/Dickon Addis reply.
See 77 (above).
[3]See my observation concerning the adoption of and meaning ascribed by Mr King to this clause in paragraph 22 above.
[4]Home Office v Harman [1982] 1 AC 280.
The plaintiff is to make further and better discovery in accordance with my rulings above. The affidavit of documents should comply with rule 29.04(b) and describe the documents in a form to enable convenient inspection by the solicitors for Messrs Ford and Krick.[5]
[5]See generally Williams, Civil Procedure Victoria, vol 1 at [29.01.300]-[305].
The first and second defendants’ request for further and better particulars
In paragraph 2 of the summons, Messrs Ford and Krick seek an order that SIHI provide further and better particulars in response to their request dated 13 October 2008. That request was agreed by Counsel for the parties to be identical in form to that served on 22 August 2008 in response to which SIHI filed the document headed “Further and Better Particulars of Amended Statement of Claim” dated 29 August 2008. In response to the later request of 13 October 2008, SIHI stated that as the request was in an identical form to the earlier document dated 22 August 2008, it would make no further response.
Rule 13.02(1) provides relevantly:
(1)Every pleading shall –
(a)contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;
(b)[not relevant]
(c)[not relevant]
It will be seen rule 13.02(1)(a) draws a distinction between facts on which a party pleading relies (material facts) and evidence to prove those facts. Pleading all the material facts means pleading all the facts necessary to constitute a complete cause of action. The party pleading is required to state the facts necessary to enable the opposite party to understand the nature of the claim or defence that must be met at trial.[6]
[6]See generally Williams, Civil Procedure Victoria, vol 1 at [13.02.15].
Rule 13.10 makes provision for particulars of pleading. It provides relevantly:
13.10(1) Every pleading shall contain the necessary particulars of any fact or matter pleaded.
(2)Without limiting paragraph (1), particulars shall be given if they are necessary –
(a)to enable the opposite party to plead; or
(b)to define the questions for trial; or
(c)to avoid surprise at trial.
(3)Without limiting paragraph (1), every pleading shall contain particulars of any –
(a)[not relevant]
(b)disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice which is alleged.
Pleadings are said to define the issues in general terms. Particulars of pleadings control the generality of pleadings and restrict the evidence to be led by the parties at the trial. They give the other party such information as may enable it to know what case it will be met with at trial and prevent surprise. The function of particulars is to implement the principle that the litigation between the parties and the trial should be conducted fairly, openly and without surprise, and to reduce costs. As one of the purposes of the provision of particulars is to avoid surprise at trial, on occasions a party may be required to disclose its evidence. However, a request for particulars is objectionable if the sole object of the request is to ascertain the evidence by which the opposing party intends to prove its case. Particulars are required of what the other party will allege to be the facts.[7]
[7]See generally Williams, Neil, Civil Procedure Victoria, vol 1 at [13.10.1] – [13.10.12].
Messrs Ford and Krick make application for an order for further and better particulars under rule 13.11 which provides relevantly:
(1)The Court may order a party to serve on any other party particulars or further and better particulars of any fact or matter stated in the party’s pleading or an affidavit filed on that party’s behalf in order to stand as a pleading.
The request for further and better particulars is confined to the allegations in paragraph 7 of the Amended Statement of Claim. Since the delivery of the request, the Statement of Claim has been further amended by leave granted by Associate Justice Evans and, for the purposes of the current application, it was agreed it was appropriate to deal with the Further Amended Statement of Claim in its current form as per the document filed 11 June 2009.
Paragraph 7 provides:
During the course of their employment with the Plaintiff, from a date or dates at present unknown to the Plaintiff, and without knowledge of the Plaintiff, each of Ford and Krick has used one or other of the business names described in paragraph 6 and 6A above (“business names”) to divert business from the Plaintiff to them–
(a). . .
(b)by diverting repair work of pumps to one or other of these business names, which work should have been handled directly by the Plaintiff, and charging the Plaintiff;
(c)by using their knowledge of incoming orders received by them during their employment with the Plaintiff, and of the stock of spare pump parts held by the Plaintiff, to acquire such parts cheaply from the Plaintiff, and then using them to fulfil repair work diverted to either business, or orders for such parts, retaining for themselves any profits made therefrom;
(d)by purporting to provide sub-contractor services to the Plaintiff, without disclosing their involvement with the business name through which that transaction purportedly took place;
(e)by buying parts from the Plaintiff at its lowest re-seller’s price, and on-selling them to a customer, without disclosing to the Plaintiff their involvement with the business name through which that transaction took place (Parts Transactions);
(f)via Pump Solutions, by entering into a contract with Alderley Systems Pty Ltd, and then subcontracting that work to the Plaintiff at a lowed [sic] price, without disclosing to the Plaintiff their involvement with Pump Solutions (Alderley transaction).
Particulars
7(b)-(d): This conduct is expressly admitted in a letter, dated 30 June 2006, from the solicitor for Ford and Krick addressed to Theo Roewekamp of the Plaintiff as to Pump Solutions and GW Industries, although no such disclosure was made regarding the remaining business names described in paragraph 6A above. Particulars of the transactions under 7(b) to (d) are set out in the First Schedule to this Amended Statement of Claim. Particulars of the parts transactions are given in the second schedule to this Amended Statement of Claim.
Particulars of the Parts Transactions are given in the Second Schedule to this Amended Statement of Claim.
Particulars of the Alderley Transaction are given in the Third Schedule to this Amended Statement of Claim.
Fuller particulars may be given after discovery from the Defendants.”
The Request for Further and Better Particulars prescribes definitions in its preamble which provide as follows:
“A.Wherever in this Request the ”usual particulars” are sought of any agreement, term of any agreement, request, consent, refusal, fact, matter or thing, say whether it was wholly or partly in writing, in computer-readable form, oral or to be implied, and–
(a)Insofar as it was in writing, identify sufficiently each document or paper constituting any part of it and say where and in whose possession that document or paper now is, when and where it may be inspected, and, if it has been lost or destroyed say where a copy of it may be inspected and if there be no copy, give the material substance of it;
(b)Insofar as it is contained in any computer-readable form (for example, a disk, tape, random access memory, or the like) identify that form, say where and in whose possession it now is, when and where it may be inspected, and, if it has been lost or destroyed, say where a copy of it may be inspected and if there be no copy give the material substance of it;
(c)Insofar as it was oral say when, where and between what actual persons, and whether face to face or by way of telephone, each conversation constituting any part of it took place and give the material substance of each conversation;
(d)insofar as it was to be implied, state the acts, facts, matters, circumstances and things, and where they occurred or arose, from which the implication is to be drawn,
and if the agreement, request, consent, refusal, matter or thing (as the case may be) was made, entered into, carried out or done by a person acting, or purporting to act, on behalf of or with the authority of another, give the like particulars as are sought above of the authority (express, implied or ostensible) of that person to act on behalf of that other.
B.Wherever in this request the “usual details” are sought specify (with all material dates and places and identifying all persons involved) each act, fact, matter, circumstance, thing, event, happening, occurrence, omission, error, neglect or default relied on.
C.Wherever in this Request the “usual calculations” are sought of any amount, figure or number or alleged loss or damage, state how the same is calculated, quantified, derived or ascertained and set out all relevant calculations concerning it, and where it is made up or derived from payments made to any person, give the usual particulars of the contract, agreement, arrangement or understanding pursuant to which the payment was made to that person and say how the payment is made up and calculated.”
I now turn to the individual requests. Paragraph 1(a) of the Request states:
“(a)Give the:-
(i)usual particulars;
(ii)usual details;
of the:
A.diverting of repair work of pumps, and
B.charging by the plaintiff,
referred to in sub-paragraph (b).”
In response, SIHI, in its further and better particulars, states as follows:
“1(a) (all parts) Adequate particulars are given in the particulars under paragraph 7 and in the First Schedule to the Amended Statement of Claim, in the expanded form of that Schedule annexed hereto. Further, Ford, as General Manager Service and Workshop of the plaintiff, will place a purchase order from the plaintiff upon one or other of the business names, in respect of work which a customer of the plaintiff had ordered of the plaintiff. The work under the plaintiff’s purchase order was then performed by the defendants, and invoiced to the plaintiff in the name of the business name upon which the order had been placed. The plaintiff paid each invoice.
The First Schedule referred to is a reference to a 17-page spreadsheet document containing what must be several hundred transactions in extremely fine print. In respect of each transaction, the spreadsheet has 23 separate columns which provide information including the identity of the SIHI customer whose custom was allegedly diverted, the description of the machinery in question which was allegedly the subject of Messrs Ford and Krick’s work, the amount which they were paid, the date of such payment and the cheque number of such payment. Mr Ford’s signature was said to appear on each of the SIHI purchase orders for these transactions.
The request seeks the usual particulars and usual details of the diverting of repair work of pumps. “Diverting” in this context means to redirect something from one course to another. In substance, the request seeks usual particulars and usual details of the “diversions”. Although the First Schedule is comprehensive in the information it provides, I consider that Messrs Ford and Krick, in order to know the case that they have to meet at trial, are entitled to know particulars of the diversions alleged. I would infer by reference to the First Schedule that it is alleged that Mr Ford was instrumental in some manner in this regard by reason of his signatures on the SIHI purchase order. However, the First Schedule does not provide the requisite particulars, namely the material facts, in this regard. It may be that the particulars can be provided in the form of a generic narrative which applies to each of the subject transactions detailed in the First Schedule but I will order that the usual particulars and usual details be provided as requested.
Paragraph 1(a) of the Request requires SIHI to:
“Give the:-
(i)usual details;
of the Defendants’ knowledge of incoming orders and stock of spare parts referred to in sub-paragraph (c).”
In response, SIHI states:
“1(b) (all parts) Adequate particulars are given in the particulars under paragraph 7 and in the Second Schedule to the Amended Statement of Claim (and not in the First Schedule). Further, each defendant knew of incoming orders and stock of spare parts by reason of their employment with the plaintiff.“
The Second Schedule to the Further Amended Statement of Claim is a single-page spreadsheet containing eight columns of information in respect to the transactions which are the subject to that part of SIHI’s claim. There are no particulars of the alleged knowledge and the only particulars in that regard are those provided in the further and better particulars extracted above, namely, the generic statement that each defendant knew of incoming orders and stock of spare parts by reason of their employment with the plaintiff.
As noted above, rule 13.10(3)(b) requires every pleading to contain particulars, inter alia, of any knowledge which is alleged. Although the request for its provision in the form of “usual details” is not the clearest formulation of a request for such particulars, it does nonetheless require specification of the acts, facts, matters, circumstances, things, events, happenings, occurrences, omissions and the like relied upon to establish such knowledge. It is susceptible of response and Messrs Ford and Krick are entitled to such particulars. It may well be that no further particulars other than the ones which have already been provided can be provided but Messrs Ford and Krick are entitled to know the case they have to meet in this regard.
Paragraph 1(c) of the Request requires SIHI to:
“Give the:-
(i)usual particulars;
(ii)usual details;
of the parts acquired cheaply from the plaintiff referred to in subparagraph (c).”
In response, SIHI states:
“1(c)(all parts) Adequate particulars are given in the particulars under paragraph 7 and in the Second Schedule to the Amended Statement of Claim (and not in the First Schedule). The plaintiff provides the following further details”.
There is then set out in the form of a chronicle details of each of the subject transactions mentioned in the Second Schedule. In my view, the particulars provided inform Messrs Ford and Krick of the case they had to meet in this regard and, in any event, the form of paragraph 1(c) of their request is, in my view, nonsensical and incapable of response. One cannot give particulars or details “of the parts acquired cheaply”.
Paragraph 1(d) of the Request requires SIHI to:
“Give the usual details of the allegation in subparagraph (c) that the Defendants used the parts to fulfil repair work diverted to either business or orders for such parts.”
In response, SIHI states as follows:
“Adequate particulars are given in the particulars under paragraph 7 and in the Second Schedule to the Amended Statement of Claim (and not in the First Schedule). Otherwise, the Plaintiff refers to 1(c) above.”
Messrs Ford and Krick are entitled to particulars of how it is said that they used parts to fulfil repair work as alleged in paragraph 7(c). In my view, neither the particulars under paragraph 7 nor the Second Schedule to the Further Amended Statement are informative in that regard. The particulars provided in response to Request 1(c) do not provide the requisite particulars as contended in SIHI’s response to this Request. Messrs Ford and Krick are entitled to be informed of the case they had to meet in regard to the allegation that they used the subject parts and SIHI should provide the usual details of such “use”.
Paragraph 1(e) of the Request requires that SIHI:
“Give the:-
(i)usual particulars;
(ii)usual details;
of the sub-contractor services referred to in sub-paragraph (d).”
In response, SIHI states:
“Adequate particulars are given in the particulars under paragraph 7 and in the First Schedule to the Amended Statement of Claim, in the expanded form of that Schedule annexed hereto. The work was that done [sic] was under the name of each of the businesses described in paragraphs 6 and 6A of the Amended Statement of Claim. The transactions are identified in the different pages of First Schedule to the Amended Statement of Claim, in the expanded form of that Schedule annexed hereto under the name of each of those businesses.”
Counsel for SIHI was not able to elaborate at the hearing of this matter on what was meant by the expression “expanded form” of the First Schedule and the only form of the First Schedule in existence is that appended to the Further Amended Statement of Claim. The First Schedule, as I have observed, describes numerous transactions and gives certain details in respect of those transactions including the SIHI customer concerned, the item of equipment in question, the work carried out and details of payment.
Messrs Ford and Krick are not entitled to be informed of the evidence to be relied on but they are entitled to particulars of the allegation that subcontractor services were provided. The First Schedule goes a long way to providing, particulars of the allegations in this regard. One element which is lacking is the identification of the particular business name pursuant to which such subcontractor services were provided in each of the respective transactions. SIHI should provide details in this regard as well as a detailed narrative of the meaning of the respective headings to the First Schedule. I do not, however, consider that, aside from that, Messrs Ford and Krick are entitled to any further particulars. Anything more will descend into the actual evidence to be led at the trial. I do not think it could be said that if the further particulars I have described above are provided that Messrs Ford and Krick could be taken by surprise in respect of this allegation given the level of detail of the material which has been and will be provided.
Paragraph 1(f) requires SIHI to:
“Give the:-
(i)usual particulars;
(ii)usual details;
of the Parts Transactions referred to in subparagraph (e).”
In response, SIHI states:
“1(f) (all parts) See the matters set out under 1(c) above.”
The “Parts Transactions” refer to the allegations in paragraph 7(e) of the Further Amended Statement of Claim that Messrs Ford and Krick bought parts from SIHI at what were effectively trade prices and sold them on to a customer of SIHI without disclosing to SIHI their involvement in the business name through which that transaction proceeded. The Parts Transactions, as it is defined by paragraph 7(e) of the Further Amended Statement of Claim, appears to be allied to the allegation contained in paragraph 7(c) of the Further Amended Statement of Claim, save that it appears to consist solely of the acquisition and sale of the parts to SIHI’s customer base after purchasing them from SIHI at what is effectively a wholesale price. On the other hand, paragraph 7(c) involves not only the acquisition of parts from SIHI’s stock cheaply but also fulfilling repair work diverted to Messrs Ford and Krick’s business. As such, mere repetition of the particulars provided in response to paragraph 1(c) of the Further and Better Particulars does not, in my view, suffice. The “Parts Transactions” allegation is quite a separate allegation and SIHI should provide further and better particulars of it.
Paragraph 1(g) of the Request for Further and Better Particulars requests SIHI to:
“Give the:-
(i)usual particulars;
(ii)usual details;
of the Alderley Transaction referred to in subparagraph (f).”
In response, SIHI states in its Further and Better Particulars:
“1(g) (all parts) Adequate particulars are given in the particulars under paragraph 7 and in the Third Schedule to the Amended Statement of Claim.
There are no particulars in respect of the Alderley Transaction in the particulars subjoined to paragraph 7 of the Further Amended Statement of Claim. There is merely a reference to the Third Schedule. The Third Schedule consists of 15 subparagraphs of allegations which outline the Alderley Transaction. This is, in my view, bereft of material facts and particulars in respect of those allegations. For example, there are no details of dates or times in the Third Schedule, save for paragraph 8. I consider that SIHI should provide further and better particulars in response to Messrs Ford and Krick’s request in respect of the Alderley transaction.
Messrs Ford and Krick have had substantial, although not complete, success in their application. The degree of success is such that my provisional view is that they should be awarded their costs of the application. If SIHI wishes to file and serve a written submission not to exceed three pages it should do so by 4pm on Friday 18 December 2009. If it does so, Messrs Ford and Krick, if so advised, file and serve a written submission of the same length in response by 4pm on Friday 22nd January 2010.
---
0
0
0