Tutt Bryant Group Limited v Piggott

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TUTT BRYANT GROUP LIMITED -v- PIGGOTT [2024] WASC 19

CORAM:   MUSIKANTH J

HEARD:   30 NOVEMBER 2023

FINAL SUBMISSIONS FILED 9 JANUARY 2024

DELIVERED          :   31 JANUARY 2024

FILE NO/S:   CIV 1884 of 2023

BETWEEN:   TUTT BRYANT GROUP LIMITED

Plaintiff

AND

ROGER STUART PIGGOTT

Defendant


Catchwords:

Procedure - Application to strike out writ - Relevant principles - Adequacy of indorsement

Procedure - Application for summary judgment - Relevant principles

Pleadings - Relevant principles - Application to strike out statement of claim - Whether matters pleaded disclose reasonable cause of action - Whether matters pleaded may prejudice, embarrass or delay fair trial of the action - Turns on own facts

Pleadings - Allegations of intentional participation or knowing involvement - Relevant principles

Trade practices - Misleading or deceptive conduct - s 4 of the ACL, future matters and accessorial liability - Relevant principles

Legislation:

Australian Consumer Law (Cth) ss 2, 4, 18, 236
Australian Consumer Law (WA)
Rules of the Supreme Court 1971 (WA), O 1 rr 4A and 4B, O 6 r 1, O 16 r 1, O 20 r 19(1)
Trade Practices Act 1974 (Cth), ss 51A, 52, 75B(1)

Result:

Application to strike out statement of claim allowed in part

Category:    B

Representation:

Counsel:

Plaintiff : Mr N D C Dillon
Defendant : Mr L A Warnick SC

Solicitors:

Plaintiff : Tudori Hager Grubb
Defendant : GV Lawyers

Cases referred to in decision:

3meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128; (2012) 43 WAR 350

ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235

ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73

ACCC v Universal Sports Challenge Ltd [2002] FCA 1439

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341

Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45

DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97

DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170

EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23

English v Vantage Holdings Group Pty Ltd [2021] WASCA 47

F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290

Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486

Glendinning v Cuzens [2009] WASCA 21

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Gold Coast City Council v Pioneer Concrete Pty Ltd [1998] FCA 791; (1998) 157 ALR 135

Hatt v Magro [2007] WASCA 124; (2007) 34 WAR 256

Interstart Pty Ltd v Halston Capital Pty Ltd [2022] WASC 105

Macmahon Contractors Pty Ltd v CWDC…

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Details
Case
[2024] WASC 19
Decision Date

CaseChat Overview and Summary

The case of Tutt Bryant Group Limited v Piggott involves a dispute between the plaintiff, Tutt Bryant Group Limited, and the defendant, Piggott, concerning allegations of misleading or deceptive conduct under the Australian Consumer Law (ACL). The matter was heard in the Federal Court of Australia. The plaintiff sought damages based on claims that the defendant made misleading representations, which allegedly caused financial harm. The defendant moved to strike out the plaintiff's writ and subsequently applied for summary judgment, arguing that the plaintiff's claim lacked a reasonable cause of action and potentially prejudiced, embarrassed, or delayed the fair trial of the action.

The court had to determine whether the plaintiff's statement of claim disclosed a reasonable cause of action and whether it contained matters that might prejudice, embarrass, or delay the fair trial of the action. Furthermore, the court needed to assess the principles of striking out a writ, the conditions under which summary judgment could be granted, and the specific legal issues related to misleading or deceptive conduct under the ACL. The court also needed to consider the nature of the defendant's application for summary judgment and the adequacy of the supporting affidavit.

The court found that the plaintiff's claim did not disclose a reasonable cause of action regarding two of the alleged representations, but there were still real questions to be tried concerning the remaining three representations. The court emphasized that summary judgment should be granted only in the clearest of cases where the outcome is certain. Given that the plaintiff's claim involved substantial questions of law and causation that required full argument and evidence, the court was cautious in exercising its power to terminate the proceedings summarily. The court also noted that the defendant's second application for summary judgment was not adequately supported by an affidavit that verified the facts upon which the application was based. Consequently, the court refused the defendant's application for summary judgment.

The court did not make any final orders as the matter was still pending further proceedings to address the remaining issues. The court's decision underscored the importance of ensuring that summary judgment applications are supported by appropriate evidence and that such applications should not be used to dispose of difficult or substantial questions of law without a full trial.

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

That rule relevantly provides:1.Application by defendant for summary judgment (1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order — (a) that judgment be entered for the defendant with or without costs; or (b) that the plaintiff shall proceed to trial without pleadings, or if all parties consent, may dispose of the action finally and without appeal in a summary manner.(2) An application under subrule (1) shall be made by summons supported by affidavit verifying the facts upon which the application is based.… As the Court of Appeal recently observed in Zaghloul v Bayly:[14]The principles to be applied on an application for summary judgment are well established. The critical issue is whether it is clear that there is no real question to be tried. The issue is framed in this manner as it is only in the clearest of cases, where there is a high degree of certainty about the outcome if the proceedings were allowed to go trial, that summary judgment ought properly to be granted. The exercise of powers to summarily terminate proceedings must always be attended with caution. There are cases where the court has considered it appropriate to determine questions of law on a summary judgment application. There should be summary judgment if the facts are undisputed and the law is clear. In general, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument. It will usually be appropriate to leave the determination of such questions for trial. (footnotes omitted) The second application was supported by an affidavit which for all practical purposes amounted to submissions. Properly, in the circumstances, senior counsel for the defendant did not read the affidavit. That said, according to senior counsel, the second application was 'not an application based on facts other than those … in the pleadings', and, therefore, there was 'no need for an affidavit to verify facts'.[15] The damages sought by the plaintiff are all suggested to have been suffered in consequence of five alleged representations made at different times. It is not contended that any one or more of the alleged representations led to a different causal consequence than any one or more of the others. As will be apparent from what follows, I have not found that the plaintiff's claim discloses no reasonable cause of action at all. Indeed, I have only made such a finding to the extent that the plaintiff's claim arises from two of the alleged representations. For at least the above reasons, it cannot, in my view, be said that there is no real question to be tried. Summary judgment should be refused.

Ratio Decidendi

Legal Principle Established

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