| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TRADESMAN TECHNOLOGIES -v- AMEDURI [2011] WADC 162 CORAM : REGISTRAR KINGSLEY HEARD : 29 AUGUST 2011 DELIVERED : 5 OCTOBER 2011 FILE NO/S : CIV 294 of 2011 BETWEEN : TRADESMAN TECHNOLOGIES Plaintiff
AND
JOHN AMEDURI
Defendant
Catchwords: Practice - Application for further and better particulars Legislation: Nil Result: Application allowed in part
(Page 2)
Representation: Counsel:
Plaintiff : Mr Hannon
Defendant : Mr N Dillon
Solicitors:
Plaintiff : De Vita & Dixon Lawyers
Defendant : McDonald Pynt
Case(s) referred to in judgment(s):
Cellulose Products Pty Ltd v Truda (1970) 92 WN (NSW) 561
Dare v Pulham (1982) 148 CLR 658
Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809
Goldsmith v Sandilands (2002) 190 ALR 370
R v Associated Northern Collieries (1910) 11 CLR 738
Western Australian Capital Investment Co v Federal Commission of Taxation (1988) ATC 4001
(Page 3)
1 REGISTRAR KINGSLEY: Tradesmen Technologies Pty Ltd (Tradesmen) carried on business of importing and supplying traffic related products such as cones, bollards and similar products (Traffic Products). As it is pleaded at par 9, the defendant (Ameduri) worked for Signs All Pty Ltd (Signs All) at all material times after 21 September 2007. Tradesmen pleads that Ameduri was authorised by the sole director of Signs All to place orders on behalf of Signs All for the purchase of Traffic Products from Tradesmen. Tradesmen pleads at par 23 of the statement of claim that between July 2008 and April 2009 Tradesmen supplied Traffic Products to Signs All in response to orders placed by Signs All and Tradesmen rendered Signs All invoices for such supplies.
2 Tradesmen pleads that on or about 19 January 2009, a Restricted Supply Agreement was made between Tradesmen and Signs All. As a result of that agreement, Tradesmen supplied Traffic Products to Signs All. By April 2009, Tradesmen pleads Signs All owed approximately $129,354.60 to Tradesmen. 3 In April 2009 a Continuing Supply Agreement was made between the director of Tradesmen, Tradesmen, Mrs Ameduri and Signs All. The Continuing Supply Agreement provided that Signs All was to pay all invoices rendered by Tradesmen within 30 days for all supplies of Traffic Products made during the period April 2009 to November 2009, and by 30 November 2009 pay all outstanding invoices for the supply of Traffic Products made prior to 8 April 2009. 4 Tradesmen goes on to plead that by reason of representations made by Ameduri, Tradesmen continued to supply Traffic Products on credit to Signs All and Ameduri thereby engaged in conduct that was misleading or deceptive or likely to mislead or deceive. Further, Tradesmen pleads that Ameduri guaranteed payment of outstanding invoices. 5 In his defence, Ameduri admits he was authorised to make orders on behalf of Signs All but only did so on a few occasions with Tradesmen. Ameduri goes on to admit that some Traffic Products were supplied by the plaintiff to Signs All but otherwise does not admit par 23 of the statement of claim. 6 At par 2.8 of the defence, Ameduri does not admit that the amount alleged to be owing was in fact owed in whole or part. Under the heading 'Particulars', Ameduri says the amounts alleged to be owing were not charged in accordance with the Restrictive Supply Agreement. Ameduri, (Page 4)
again as a particular, does not admit that all of the Traffic Products the subject of the amount claimed were supplied. 7 Tradesmen issued a request for particulars with respect to a number of the paragraphs of the defence. Ameduri responded to that request in a document dated 1 June 2011. The plaintiff takes issue with the response to requests 4, 5 and 6 in relation to par 2.8.1(a) of the amended defence, and requests 7 and 8 in relation to par 2.8.1(b) of the amended defence. 8 The fundamental proposition concerning particulars is that a party is entitled to be informed about the opponent's case with sufficient clarity to allow that party a fair opportunity to meet the case: Dare v Pulham (1982) 148 CLR 658, 664. Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809 [11] is authority for the proposition that the modern practice is for a court to intervene if the parties do not identify precisely just what is, and what is not, in dispute, and the earlier the court acts, the better it will be for the parties. 9 Particulars fill in the picture of a cause of action or defence to that cause of action with information sufficiently detailed to put a party on their guard as to the case they have to meet and to enable preparation for trial. However, a party is not entitled to be told, by way of particulars, the mode by which the case is to be proved: Goldsmith v Sandilands (2002) 190 ALR 370 and R v Associated Northern Collieries (1910) 11 CLR 738. 10 Request 4 of Tradesmen's request for particulars of par 2.8.1(a) seeks the facts, matters and circumstances relied on to support the allegation that amounts were not charged in accordance with the Restricted Supply Agreement. The defendant declined to answer this request on the basis that it seeks particulars of a particular. Ameduri goes on to respond that Signs All challenged Tradesmen as to its charges and demanded copies of supplier invoices to enable reconciliation with the Restrictive Supply Agreement. 11 Paragraph 2.8.1 of the amended defence does not admit that the amount alleged to be owed was in fact owed in whole or part. Paragraph 2.8.1(a) as a particular, then goes on to explain why that is the case: that the amounts alleged to be owing were not charged in accordance with the Restrictive Supply Agreement. 12 In my opinion that particular is, in fact, a material fact. It is a positive allegation being put forward by Ameduri. (Page 5)
13 Ameduri's counsel submits that the non-admission does no more than put Tradesmen on notice that the entirety of its claim will require strict proof. However this particular goes further. Ameduri, through particular 2.8.1(a), is alleging Tradesmen was in breach of the Restrictive Supply Agreement. Once particular (a) of par 2.8.1 is seen to be an allegation of a breach of contract, then Tradesmen entitled to particulars of how it is alleged Tradesmen has failed to comply with the terms of the Agreement. 14 A consistent theme in Ameduri's counsel's submissions is that Ameduri cannot be compelled to identify which aspects of Tradesmen's case are to be subjected to strict proof. If it were to be otherwise, the burden of proof would shift to Ameduri. Citing Western Australian Capital Investment Co v Federal Commission of Taxation (1988) ATC 4001, Ameduri's counsel submits that a defence which does no more than challenge a plaintiff to prove its case, and which operates as a general traverse of allegations, is not susceptible to a requirement for further particulars, as particulars will serve no function in this context. Considering the role of particulars, French J noted that where the defence imports some affirmative allegation beyond that which is to be implied from the mere denial of a negative, then particulars of that allegation may be ordered. 15 In this case, in my opinion, par 2.8.1(a) involves a positive case in that Ameduri asserts the amounts alleged to be owing were not charged in accordance with the Restrictive Supply Agreement. In my opinion, particulars ought to be given as requested. 16 My reasons in relation to request 4 then, in my opinion, flow to request 5 and 6. Request 5 enquires what price does Ameduri allege should have been charged to be in accordance with the Restrictive Supply Agreement and request 6 enquires what price does Ameduri allege was in fact charged. In my opinion, both requests ought to be answered. 17 Request 7 and 8 go to par 2.8.1(b) of the defence. Paragraph 2.8.1(b) states, as a particular, that Ameduri does not admit that all of the Traffic Products the subject of the amount claimed were supplied. 18 Paragraph 23 of the amended statement of claim pleads: From time to time between about July 2008 and about April 2009 the plaintiff supplied traffic products to Signs All Pty Ltd in response to orders placed by Signs All Pty Ltd and the plaintiff rendered Signs All Pty Ltd invoices for such supplies. (Page 6)
19 At par 2.7 of the amended defence, Ameduri pleads to par 23 by admitting that some Traffic Products were supplied by the plaintiff to Signs All but otherwise does not admit par 23. 20 The defendant has admitted that some Traffic Products were supplied by Tradesmen. Request 7 goes to having Ameduri identify the Traffic Products that were not supplied. By the admission that some Traffic Products were supplied by Tradesmen to Signs All, Tradesmen no longer has to prove the supply of those particular Traffic Products. What Tradesmen still must prove is the fact that the supply of those Traffic Products was in accordance with the Restrictive Supply Agreement. However, the admission at par 2.7.1 does narrow the issues in dispute by focusing Tradesmen's attention on the charges made for the Traffic Products admitted to be supplied. Accordingly, I am of the opinion that request 7 is a proper request and is to be responded to. 21 Request 8 enquires of the amounts charged in respect of each of the Traffic Products Ameduri alleges were not supplied. Ameduri puts in issue that the amounts alleged to be owing were not charged in accordance with the Restrictive Supply Agreement. A proper response to request 5 will pick up the amounts charged, though perhaps not in respect of each of the Traffic Products Ameduri alleges were not supplied. I am of the opinion that request 8 need not be responded to. 22 Tradesmen's case is that Ameduri has made himself a guarantor for the traffic products which Tradesmen supplied to Signs All. Cellulose Products Pty Ltd v Truda (1970) 92 WN (NSW) 561 is authority for the proposition that a guarantor in defending a creditor's claim under the guarantee is entitled to dispute that the funds, wholly or partially, were advanced by the creditor to the debtor under the principle contract, and can plead the goods were not delivered either wholly or partially. Ameduri's counsel submits that Tradesmen has chosen not to identify any Traffic Products it asserts it has supplied. In that way the defence puts Tradesmen to the proof of supply of Traffic Products. However it is Ameduri who makes the positive allegation that not all Traffic Products were supplied. In making that allegation, in my opinion, Ameduri must give particulars. 23 The defendant's counsel goes on to submit that the application for further and better particulars offences the principle of proportionality. Order 1 r 4B RSC has the object of ensuring the procedures available, and the costs of the procedures, are proportionate to the value, importance and complexity of the subject matter in dispute. The question of (Page 7)
proportionality goes to the principle that no one litigant has the right to insist that their case will consume as much of the court's time and resources as that litigant's own pocket will bear. There is now an obligation to ensure that litigation is conducted justly, quickly and cheaply and that obligation is placed upon the court, the litigant and the legal profession. Thus, a court has the obligation to ensure that issues, and litigation, are resolved in such a way that the cost to parties is proportionate to the importance and complexity of the subject matter. 24 However litigants are still entitled to a fair opportunity to present their case. If a litigant can only fairly achieve that by bringing, and having to argue, an application then, in my opinion, the proportionality principle generally has no effect. Where the proportionality principle does take effect is when the litigant, in the pursuit of their claim, seek to expend as much of the court's resources as they wish. In my opinion, this matter does not demonstrate any breach of the proportionality principle to warrant a refusal of the order. 25 I will hear counsel on the terms of the order and on costs. |