Technip Oceania Pty Ltd v Cutmere Pty Ltd - [2019] WASC 478

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TECHNIP OCEANIA PTY LTD -v- CUTMERE PTY LTD [2019] WASC 478
CORAM:   ALLANSON J
HEARD:   20 DECEMBER 2019
DELIVERED          :   20 DECEMBER 2019
PUBLISHED           :   6 JANUARY 2020
FILE NO/S:   CIV 2116 of 2018
BETWEEN:   TECHNIP OCEANIA PTY LTD
Plaintiff
AND
CUTMERE PTY LTD
Defendant

Catchwords:

Practice and procedure - Application to strike out part of statement of claim - Whether paragraphs relevant to any cause of action - Whether paragraphs may prejudice, embarrass or delay fair trial of action

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20 r 8

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	R W Douglas
Defendant	:	S Penglis SC

Solicitors:

Plaintiff	:	KJ Levy
Defendant	:	Warren Syminton Ralph

Case(s) referred to in decision(s):

ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402; (2014) 89 NSWLR 209
Armidale Regional Council v Vorhauer [2019] NSWSC 1153
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Bride as Trustee of The Pinwernying Family Trust & Anor v Stewart [1999] WASCA 116
Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
Nyoni v Patterson [2012] WASCA 171
Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation [2017] NSWCA 81
Tchenguiz v Thornton UK LLP [2015] EWHC 405
Weeks v Nationwide News Pty Ltd [No 2] [2019] WASC 44

ALLANSON J:

On 20 December 2019, I heard the application by the defendant, Cutmere Pty Ltd, to strike out part of the statement of claim.[1] At the conclusion of the hearing I allowed the application, with reasons to be published. These are my reasons.
[1] Now the further re-amended statement of claim filed 22 September 2019. There was also an application for leave, which was not opposed.
The application was filed, by chamber summons, on 16 October 2019. Two paragraphs of the statement of claim were challenged on the grounds that they disclose no reasonable cause of action, alternatively, may prejudice, embarrass or delay the fair trial of the action.
The plaintiff, Technip Oceania Pty Ltd, claims damages for breach of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASC 478
Decision Date: 6 JANUARY 2020

CaseChat Overview and Summary

Technip Oceania Pty Ltd filed an application to strike out parts of the statement of claim brought by Cutmere Pty Ltd. The dispute revolves around the nature of Cutmere's role as a lessor under a lease agreement and a deed of variation. The primary concern was whether Cutmere, in its capacity as lessor, acted as a trustee and whether it limited its liability to the extent of the assets of the trust. This case was heard in the Federal Court of Australia.

The central legal issues before the court were whether the specific paragraphs of the statement of claim were relevant to any cause of action and whether they could potentially prejudice, embarrass, or delay the fair trial of the action. The court had to consider the construction of the Lease and Deed of Variation to determine Cutmere's status and the extent of its liability. Additionally, the court needed to assess if assumptions made by Technip about Cutmere's authority to contract independently were pertinent to the questions of whether Cutmere acted as a trustee and the construction of the agreements.

The court reasoned that the determination of whether Cutmere is a trustee and the extent of its liability is a question of interpreting the Lease and Deed of Variation, applying well-established principles of commercial agreement construction. The assumptions Technip made about Cutmere's authority to contract independently were deemed irrelevant to these issues. The court found that the challenged paragraphs were not relevant to any cause of action and could potentially prejudice the fair trial of the action. Consequently, the court decided to strike out the specified paragraphs from the statement of claim.

The court ordered that the challenged paragraphs be struck out from the statement of claim, aligning with the legal principles established in Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Cutmere contracted as lessor. It either is or is not a trustee. If it is, whether it limited its liability to the extent of the assets of the trust is a question of construction of the Lease and Deed of Variation, applying well settled principles on the construction of commercial agreements.[21] Assumptions by Technip about Cutmere's authority to contract in its own right and capacity are irrelevant to whether Cutmere is a trustee and are irrelevant to the question of construction.[21] See Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [47]. I would strike out both challenged paragraphs.