The Trinder Trading Co Pty Ltd v Smith - [2014] WADC 160

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THE TRINDER TRADING CO PTY LTD -v- SMITH [2014] WADC 160

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 24 OCTOBER 2014

DELIVERED : 20 NOVEMBER 2014

FILE NO/S: CIV 3443 of 2011

BETWEEN: THE TRINDER TRADING CO PTY LTD
Plaintiff
AND
PHILIP VICTOR SMITH
First Defendant
PHILIP V SMITH PTY LTD
Second Defendant
RICH ESTATE PTY LTD
Third Defendant

Catchwords:

Practice - Western Australia - Practice and the Rules of the Supreme Court 1971 - Application to amend statement of claim - Confined to its facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Ms C Donald
First Defendant            :     Mr A Prime
Second Defendant        :     Mr A Prime
Third Defendant           :     Mr A Prime

Solicitors:

Plaintiff:     Bennett & Co
First Defendant            :     MDS Legal
Second Defendant        :     MDS Legal
Third Defendant           :     MDS Legal

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

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff conducted its business at premises that it leased from the first defendant. It agreed to sell the business to Panchos Cantina Pty Ltd. The sale was conditional upon assignment of the lease. The transaction was not concluded for reasons that the plaintiff contends found the claim of interference in the contractual relationship established under the sale agreement. It also claims that that the defendants engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law alternatively s 10 of the Fair Trading Act 1987; and conduct contrary to s 20 and s 22 of the Australian Consumer Law.
The action will be listed for any trial along with action 2204 of 2012 between the first defendant as plaintiff and the plaintiff along with some guarantors as defendants, by which it claims damages for breaches of the lease. The actions await a listing conference, the date of which has been adjourned from time to time in recent months.
The plaintiff now seeks leave to further re‑amend it's pleading in accordance with a minute dated 3 October 2014. Its explanation for both the terms of the amendment and its timing is that senior counsel has recently been engaged.
The plaintiff carries the onus of persuasion that leave be granted to amend in the terms proposed.
The proposed amendment is presented at a point late in the proceedings however the defendant presents no evidence of particular prejudice.
The first significant feature of the application is that the plaintiff seeks to plead various defined terms. The second, to introduce the circumstances that relate to its first engagement with the defendants. The third, to assert that either as a matter of construction or estoppel the rent and outgoings payable under the lease would be assessed on an area of 410 sqm. The fourth, that the defendants contend that some allegations are unsupported by particulars.
The first feature was not the subject of any particular submission however having now referred to the proposed pleading on a number of occasions I am drawn to express my opinion that the definitions are at least cumbersome and present a tedious task to the reader.
I do not intend to deal now with each of them however in my opinion the term 'Leased Premises' at par 2.2 invites comment. One would expect to find such a pleading in any such case, especially so where differing views as to the area of premises the subject of the lease established the context in which the claims arose.
By the amendment the plaintiff proposes to delete the allegation that the Leased Premises were the subject of a deed of lease between the parties and replace it with the allegation that they were parties to an agreement to lease the Leased Premises. Thereafter it proposes to plead that that the lease was of 'Premises'.
Despite the amendment adding allegations relating to the first defendant's previous tenant, the sale of that tenant's business to the plaintiff, and the part of the Leased Premises from which it operated the business, the plaintiff does not now propose to plead that any entity was party to a lease of the Leased Premises. My point is that as there is now no such allegation there is no reason to define the term: but worse than burdening the pleading it is misleading. Having made that point I would not quarrel with the response that it is implicit that the parties entered into a lease of the demised premises although curiously at that point the pleading refers to a lease of 'Premises', which I take to be suggestive of utilisation of a defined term. There is none.
I will move on to consider the second feature of the application.
At par 2D the plaintiff proposes to plead an agreement for its purchase of a business conducted on part of the Leased Premises; at par 2J, that the purchase was conditional upon it entering into a new lease for the Premises; at par 2K.1, that its request of the first defendant was to lease the ground floor of the building on the Leased Premises; at par 2K.2, the first defendant's representations in response; and at par 2L, that in reliance upon the representations the plaintiff agreed to lease the Leased Premises.
The defendants contend that no feature of the transaction for purchase of the business is relevant to the plaintiff's claim.
In response the plaintiff contended that the parties are in dispute as to the terms upon which they entered into the lease, the amendments clarify matters, are of objective intention and contextual.
The central allegation made at par 2D, is of the purchase of a business that had operated out of the ground floor of the building on the leased premises. As I have already recorded, there is no pleading to the effect that the vendor of the business had a lease, regardless whether it may have been of more than the ground floor of the building. There is no pleading that the subject of the plaintiff's request of the first defendant accorded with the condition of the plaintiff's purchase or how the representations made by the first defendant in response bear upon the plaintiff's claims.
None of the proposed allegations that relate the plaintiff's purchase of the business have any bearing upon the plaintiff's causes of action. As presently formulated the new allegations obscure the plaintiff's case. Leave to amend in terms of pars 2D, 2J, 2K and the reference in to representations in par 2L is refused.
The next significant feature of the proposed pleading is the introduction of pleading of what amount to new cases. The first at par 26A where the plaintiff puts the proposition that on a proper construction of the lease the rent payable and any variation of the rent and outgoings was to be assessed on an area of 410 sqm.
I take it to be the case that by use of the term outgoings the plaintiff intends to refer to operating expenses proposed to be pleaded at par 20A.2.
The particular issue raised by the defendants is that there is no pleaded basis for the construction for which the plaintiff contends. The plaintiff submitted that as a matter of principle particulars were not required.
In my opinion at a late stage in the action it appropriate to consider the likely impact of any amendment. Regardless that consideration, in my opinion in this instance the plaintiff is entitled to know the scope of the context upon which the defendants would draw in order to sustain the allegation.
Accordingly leave to amend in terms of par 26A is refused.
The second is expressed from par 26C to par 26G by which the plaintiff proposes at par 26H to put a case that the defendants ought to be estopped from resiling from what is characterised as the Rent Determination Assumption.
By par 26F it proposes that the plaintiff would suffer detriment if the Defendants were allowed to resile or depart from the Rent Determination Assumption.
The plaintiff conceded that particulars of par 26F were required.
The only observation that I intend to make is that it is difficult to accept that at any point in proceedings it would be appropriate for an applicant for leave to amend to proceed to a special appointment only to then make such concession absent particulars.
Leave to amend in terms of par 26F is refused. It follows that the balance of the pars 26C to 26H suffer the same fate.
A similar concession was made in relation to the proposed additional pleading at par 35; with the same result.
Turning to the balance of the defendants' contentions as to want of particulars; as I have indicated, at a relatively late stage of the litigation, where a party seeks to amend by adding new allegations the case ought to be fully and properly pleaded. It should not be considered that it would be incumbent upon the respondent to immediately undertake the task of issuing a request for particulars.
At par 20A.2 the plaintiff proposes that it was required to pay 71% of the operating expenses which percentage the landlord calculated by reference to the proportion of the total lot leasable area on which the plaintiff paid rent, being 410 sqm of 575 sqm. There is no explanation given for putting the second figure. The defendants are entitled to particulars that support the proposition.
At par 28A the plaintiff pleads that it entered into the sale agreement with Panchos Cantina Pty Ltd in reliance upon the rental determination assumption being true but provides no particulars of reliance.
At par 44.2 the plaintiff asserts a failure of the defendants to confirm that that rent under the lease was to be determined on an area of 410 sqm in circumstances where the issue had been raised by Panchos Cantina Pty Ltd and clarification was warranted. The submission of the defendants was limited to want of particulars.
At par 51.2 the plaintiff contends that the third party would still have completed the sale had the defendants confirmed that the leased premises was consistent with its specification in the plan annexed to the lease and that rent was to be assessed on an area of 410 sqm.
In my opinion at each of those points the defendants are entitled to particulars. Accordingly leave to amend in the terms of pars 20A, 44.2 and 51.2 is refused.
The application for leave to amend in the terms of the minute is refused.