Total Grain Systems Pty Ltd v T J Sampson Pty Ltd
[2012] WASC 232
•28 JUNE 2012
TOTAL GRAIN SYSTEMS PTY LTD -v- T J SAMPSON PTY LTD [2012] WASC 232
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 232 | |
| Case No: | CIV:2114/2010 | 4 APRIL 2012 | |
| Coram: | MASTER SANDERSON | 28/06/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | TOTAL GRAIN SYSTEMS PTY LTD T J SAMPSON PTY LTD HARBERGER'S FARM SUPPLIES PTY LTD KEITH ANDREW HARBERGER TIMMOTHY MICHAEL PFEIFFER STEVEN WILLIAMS |
Catchwords: | Practice and procedure Application to strike out paragraph of statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Beattie v Fine [1925] VLR 363 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
T J SAMPSON PTY LTD
Defendant
(BY ORIGINAL ACTION)
T J SAMPSON PTY LTD
Plaintiff
AND
TOTAL GRAIN SYSTEMS PTY LTD
First Defendant
HARBERGER'S FARM SUPPLIES PTY LTD
Second Defendant
KEITH ANDREW HARBERGER
Third Defendant
TIMMOTHY MICHAEL PFEIFFER
Fourth Defendant
- STEVEN WILLIAMS
Fifth Defendant
(BY COUNTERCLAIM)
Catchwords:
Practice and procedure - Application to strike out paragraph of statement of claim - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
(Page 3)
Representation:
Original Action
Counsel:
Plaintiff : Mr B E S Lauri
Defendant : Mr D H Solomon
Solicitors:
Plaintiff : Rouphael & Associates
Defendant : Solomon Brothers
Counterclaim
Counsel:
Plaintiff : Mr D H Solomon
First Defendant : Mr B E S Laurie
Second Defendant : Mr B E S Laurie
Third Defendant : Mr B E S Laurie
Fourth Defendant : Mr B E S Laurie
Fifth Defendant : Mr B E S Laurie
Solicitors:
Plaintiff : Solomon Brothers
First Defendant : Rouphael & Associates
Second Defendant : Rouphael & Associates
Third Defendant : Rouphael & Associates
Fourth Defendant : Rouphael & Associates
Fifth Defendant : Rouphael & Associates
Case(s) referred to in judgment(s):
Beattie v Fine [1925] VLR 363
(Page 4)
1 MASTER SANDERSON: On 29 July 2011, the defendant applied to the case management registrar for an order striking out pars 4(a)(i), 4(d) and 5 - 10 of the plaintiff's re-amended statement of claim. The defendant said the paragraphs of the statement of claim disclosed no reasonable cause of action or were likely to prejudice, embarrass or delay the fair trial of the action. The application was heard by the case management registrar on 26 and 29 September 2011. Oral reasons were delivered on 23 November 2011. The learned registrar refused the application and ordered costs against the defendant. The defendant has now appealed that decision.
2 No written reasons were given by the registrar for the decision. No transcript was made of either the hearing of the application or the oral reasons. Furthermore, the present re-amended statement of claim appears to have been filed after the registrar heard the strike-out application. In any event, this is hearing de novo. Both parties were content to treat the appeal as if it were a pleading summons at first instance relating to the re-amended statement of claim filed 7 September 2011.
3 Paragraph 3 of the re-amended statement of claim identifies what is termed 'the Agreement'. It refers to a written contract made between the plaintiff and the defendant pursuant to which the plaintiff was to supply components and labour for the installation of a grain storage facility on premises at King River in the State's southwest. Particulars are provided and in par 3(a) reference is made to a document entitled 'Construction Contract' which is said to be part of the written agreement between the parties.
4 Express terms of the Agreement are pleaded in par 4. Relevantly, the clause reads as follows:
There are express terms of the Agreement that:
(a) the contract price for the works comprised:
(i) the sum of Australian dollars equivalent to USE$1,696,685.00 plus GST (which, at an exchange rate of USD$0.78 = AUD$1.00, amounted to AUD$2,175,237.00) with the applicable exchange rate for United States dollars to Australian dollars ('the applicable exchange rate') to be fixed by the first Defendant; and
(ii) the sum of AUD$622,126.00 plus GST.
(Page 5)
5 It can be seen immediately the pleaded arrangement is rather odd. The contract price in Australian dollars is dependent upon the exchange rate between US dollars and Australian dollars. But that exchange rate is to be fixed by the defendant. It is the defendant who is liable to make payment under the pleaded terms of the agreement. There is nothing pleaded to show how the defendant is to settle on an appropriate exchange rate. It is the defendant's position that the pleaded contract must be void for uncertainty and the paragraph complained of should be struck out.
6 Paragraphs 5, 6 and 7 appear under the subheading 'The Fixing of the Exchange Rate'. Paragraph 5 pleads a contract said to be oral made on or about 6 August 2009 where the defendant, in consideration of the plaintiff agreeing to execute the Agreement, agreed at some time in the future to fix the exchange rate at a particular level. It is to be noted this alleged oral Agreement was entered into before the agreement was reached.
7 Paragraph 7 pleads essentially the same facts which are said to give rise to an estoppel. The plaintiff says a representation made before the parties entered into the Agreement and reasonably relied upon by the plaintiff now prevents the defendant denying the exchange rate was agreed.
8 The defendant points out the plaintiff pleads an agreement which is wholly in writing. The alleged agreement is said to contain an express term in respect of the contract price which was 'to be fixed by the defendant'. That term can only be construed to mean the rate had not been agreed as at the entry into the alleged agreement and the exchange rate was to be fixed by the defendant subsequently.
9 There are obvious difficulties with this plea. It means the plaintiff says there are two contracts which are inconsistent. But the plea itself is clear and the defendant knows the case it has to meet. To that extent I am satisfied the plea ought to stand. With respect to the estoppel plea, the plaintiff is effectively arguing an estoppel can override a written contract. About that plea, two things can be said. First, the plea itself, that is to say the form it is in at present, is clear and contains all the elements necessary to establish an estoppel. To that extent I am satisfied the plea is proper. Further, in my view it is arguable an estoppel can override a written contract. It would be inappropriate at this stage of proceeding to strike out the plaintiff's claim.
10 I am satisfied therefore the complaints with respect to these paragraphs have no substance.
(Page 6)
11 Paragraph 4(d) of the re-amended statement of claim is in the following terms:
The Contract Price assumed the use of 'frost free' style footings and in the event that some other form of footings was required, the Plaintiff would be entitled to re-calculate the Contract Price (Annexure B of the Agreement).
12 By par 16 of the amended statement of claim the plaintiff pleads what is described as 'the Carnegie Variation Contract'. Essentially what is pleaded is by agreement between the parties is the plaintiff would supply and install footings involving ''T' systems' instead of frost free footings. The plaintiff says the consideration for the variation was the defendant's undertaking to pay the plaintiff a reasonable sum for additional materials and labour associated with the variation.
13 The defendant says the pleaded Agreement is void for uncertainty and/or incompleteness. It says the Agreement as pleaded did not finally agree a bargain. Rather, an essential matter was to be determined by one of the parties. It submits that such an agreement is void: see Beattie v Fine [1925] VLR 363.
14 In my view, the defendant can have no complaint about this aspect of the pleading. The plaintiff pleads what it says was agreed. The parties appear to have anticipated some form of footings other than what was agreed might be appropriate. This proved to be the case. One type of footings was replaced by another. There was a variation of the contract. Such things happen all the time. In the end it may be the defendant's argument the contract is void because it is uncertain it will carry the day. But as a matter of pleading the way in which the plaintiff has put its case is unobjectionable.
15 I am not satisfied the plaintiff's statement of claim or any part of it should be struck out. I would dismiss the application. I will hear the parties with respect to costs.
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