Re: STATE OF WESTERN AUSTRALIA And: BOND CORPORATION HOLDINGS LTD Nos. WA G116 and 118 of 1990 FED No. 54 28 FCR 68/5 ACSR 245
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION French J.(1)
HEARING
PERTH
#DATE 22:2:1991
Counsel for the Applicant: Mr E.M. Heenan QC with Mr R. Cock
Solicitors for the Applicant: State Crown Solicitor
Counsel for the First Respondent: Mr C.D. Steytler with Mr A. Siopis
Solicitors for the First Respondent: Parker and Parker
Counsel for the Second and Mr C.J.L. Pullin QC with Fourth Respondents: Ms A. Kennedy (on 24/1/91) and
Mr J. Chaney (on 29/1/91)
Solicitors for the Second and Northmore Hale Davy and Leake Fourth Respondents:
Counsel for the Third Respondent: Mr M.J. Stevenson
Solicitors for the Third Respondent: Jackson McDonald
JUDGE1
SUPPLEMENTARY REASONS FOR JUDGMENT ON MOTIONS TO DISMISS APPLICATION OR STRIKE OUT STATEMENT OF CLAIM
It has been drawn to my attention by the solicitors acting for Bond Corporation Holdings Ltd that the judgment on their motion delivered on 15 February 1991 did not deal with one particular submission relating to what is called, in the amended statement of claim, the Bond Sunday Representation, and in particular the allegation at para.16(b) that Beckwith represented that the guarantee or indemnity which the State was requested to provide would not be called upon. This representation is said to have been misleading because Rothwells was not a sound financial institution and did not have substantial assets at the time. Bond Corporation Holdings submitted that the plea was deficient because no sufficient basis was established for characterising the representation as misleading. In my opinion however, it is not necessary in every case of misleading or deceptive conduct to plead an express or implied representation to be logically negatived by the true facts as pleaded. In my opinion, in this case, the relationship between paras. 16(b) and 21 of the amended statement of claim is clear enough to support an argument that the representation alleged in para.16(b), in the circumstances pleaded in para.21, was misleading or deceptive. Further elaboration may be sought by way of particulars. I had come to that view prior to delivering judgment, but accept that it should have been dealt with expressly in the reasons. The orders made on 15 February therefore remain unchanged.
Details
AGLC
State of Western Australia v. Bond Corporation Holdings Ltd & Ors [1991] FCA 54 (28 FCR 68; 5 ACSR 245)
Case
[1991] FCA 54
Decision Date
CaseChat Overview and Summary
The case of The State of Western Australia v Bond Corporation Holdings Ltd was heard in the Federal Court of Australia. The case involved a dispute between the State of Western Australia and Bond Corporation Holdings Ltd, among others. The nature of the dispute involved allegations of misleading or deceptive conduct, particularly in relation to a guarantee or indemnity requested by the State. The Bond Corporation Holdings Ltd, along with other respondents, moved to dismiss the application or strike out the statement of claim on the grounds that it was deficient. The case was presided over by French J.
The legal issues the court had to decide were whether the statement of claim sufficiently pleaded misleading or deceptive conduct, specifically concerning a representation made by Beckwith regarding the guarantee or indemnity. The Bond Corporation Holdings Ltd argued that the statement of claim did not sufficiently establish a basis for characterising the representation as misleading, as it did not negate an express or implied representation by the true facts as pleaded. The court had to determine if the relationship between the relevant paragraphs of the statement of claim was clear enough to support an argument of misleading or deceptive conduct.
The court found that it was not necessary in every case of misleading or deceptive conduct to plead an express or implied representation to be logically negatived by the true facts as pleaded. In this case, the relationship between paragraphs 16(b) and 21 of the amended statement of claim was deemed clear enough to support an argument that the representation alleged in paragraph 16(b), in the circumstances pleaded in paragraph 21, was misleading or deceptive. The court concluded that while further elaboration may be sought by way of particulars, the motion to dismiss the application or strike out the statement of claim was not successful.
The final orders of the court were that the orders made on 15 February 1991 remain unchanged. This means that the application and the statement of claim will proceed as originally intended, despite the motion to dismiss or strike out.