Tutt Bryant Group Limited v Piggott - [2024] WASC 19

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 Pty Ltd [2017] WASC 211
May v Smith [2000] WASC 313
Metaxas v Legal Profession Complaints Committee [2020] WASCA 27
Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175; (2004) 160 FCR 1
R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532
Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 5] [2014] WASC 76
Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177
Trustek Australia Pty Ltd v Burke [1998] WASC 72; (1998) 40 IPR 455
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wardley Australia Ltd v Western Australia [1992] HCA 5; (1992) 175 CLR 514
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Zaghloul v Bayly [2021] WASCA 125
Zervas v Burkitt (No 2) [2019] NSWCA 236

Table of Contents

Introduction

The first application

The writ

Legal principles

Adequacy of writ

Disposition - first application

The second application

Summary judgment

Legal principles

The summary judgment application

Disposition - summary judgment application

Strike out

The statement of claim

Legal principles

The alleged representations

The defendant's challenges to the statement of claim

Disposition - strike out application

Conclusion

MUSIKANTH J:

Introduction

These reasons deal with two applications by the defendant dated 28 August 2023 (first application) and 3 November 2023 (second application).
The first application, filed by the defendant approximately 30 minutes after entering an appearance, seeks an order that the writ of summons filed 8 August 2023 (writ) be struck out on the grounds that it fails to comply with O 6 r 1(1) of the Rules of the Supreme Court 1971 (WA) (Rules).
By the second application the defendant seeks an order that summary judgment be entered in his favour pursuant to O 16 r 1 or, alternatively, that the plaintiff's statement of claim filed 19 October 2023 (statement of claim) be struck out in its entirety.
The applications were listed before me to be heard together.
For the reasons which follow, I have determined that the first application should be adjourned sine die, with liberty to apply, and that the second application should be allowed in part.

The first application

The writ

By the writ, the plaintiff seeks damages, of various kinds. The indorsement of claim reads:
The plaintiff claims as against the defendant:
1.Damages for being either 'involved' (as that term is defined in section 2 of Schedule 2 of Competition and Consumer Act 2010 ('Act') in:
1.1.a contravention; or
1.2.'involved' in conduct that constitutes a contravention,
of section 18, Schedule 2 of the Act, by T & R Homes WA Pty Ltd (ACN 168 138 823) ('TR Homes 2'), in circumstances where the defendant was 'involved' from on or about 2 December 2021, until 20 April 2023, in respect to:
1.3.making representations;
1.4.making implied representations;
1.5.engaging in conduct; and/or
1.6.engaging in silence (where circumstances occasioned a reasonable expectation of the plaintiff that, if a relevant fact existed, the defendant would have disclosed it to the plaintiff),
on behalf of and as the General Manager of TR Homes 2 for the purpose and effect of, at all relevant times, inducing the plaintiff to believe:
1.7TR Homes 2 was, since in or about 2014, liable to the plaintiff to perform remedial and Structural Guarantee works as the obligated 'builder' of a house located at 27 Curlew Street, Baynton, Karratha ('Property') – under the written terms of a HIA Contract dated 28 July 2011 previously entered into by a different entity and business with the same name as TR Homes 2 being, 'T & R Homes WA Pty Ltd (ACN 118 806 312)' – which it represented it was the 'new owner' of ('Contract');
1.8TR Homes 2 would honour a contractual obligation to the plaintiff to perform any works under a 10 year written Structural Guarantee on the concrete slab situate on the Property in the terms of, or similar to, that as provided in the Contract ('Structural Guarantee');
1.9all works, previously performed by TR Homes 2 at the Property, were either:
(a)fit for purpose; and/or
(b)warranting said works would be repaired by TR Homes 2 within a reasonable time after written demand being received from and constituted by the plaintiff's letters to it dated 21 October 2021 (Notice to Rectify) and 2 December 2021 (Final Notice to Rectify), and in the circumstances of the time limit under the 10 year Structural Guarantee,
('Representations'); and
1.10in circumstances where, at all relevant times, there were contraventions by T & TR Homes 2 under Schedule 2, s.18 of the Act by reason the Representations were misleading and deceptive or likely to mislead or deceive the plaintiff.
2.Damages for breach of duty and by the negligent making of the said Representations; alternatively
3.Damages for breach of warranty.
And the plaintiff claims:
A.Damages pursuant s 236 of the Act for misleading and deceptive conduct;
B.Damages pursuant s 236 of the Act for unconscionable conduct;
C.Damages for breach of warranty;
D.Damages for breach of duty;
E.Interest pursuant to section 32 of the Supreme Court Act; and
F.Costs. (original emphasis)

Legal principles

The first application asserts non-compliance with O 6 r 1(1) of the Rules.
Order 6 r 1 provides:
1.Nature of claim etc. to be indorsed on writ
(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
(2)In case of non-compliance with subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars. (emphasis added)
What will constitute an adequate indorsement is not something that can be reduced to hard and fast rules.[1]
[1] Macmahon Contractors Pty Ltd v CWDC Pty Ltd [2017] WASC 211 [25], citing Glendinning v Cuzens [2009] WASCA 21.
In ABB Service v Hetherington,[2] McLure J (as her Honour then was) identified three functions of an indorsement.[3] First, as provided for in O 20 r 2(2), an indorsement sets the boundaries within which a plaintiff must plead the statement of claim. The causes of action pleaded in the statement of claim cannot exceed those pleaded in the indorsement. Secondly, an indorsement has important limitation ramifications. An open ended or otherwise defective indorsement may be relied on to the advantage of a plaintiff who seeks to amend its writ and then its statement of claim after the expiry of the limitation provided. Thirdly, an indorsement provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action.
[2] ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235.
[3] ABB Service v Hetherington [7] - [10].
As her Honour also observed, an indorsement is not intended to be a pleading but rather a summary of the nature of the claim.[4]
[4] ABB Service v Hetherington [10].
What must be identified are the critical events which give rise to the relief claimed without descending into the factual particularity appropriate to a statement of claim.[5]
[5] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [10]; Macmahon Contractors [29].
Although O 6 r 1 appears to suggest that an application (under O 6 r 1(2)) must be made before an appearance, the rule is in addition to, and does not exclude, O 20 r 19 which allows the court to strike out the indorsement of a writ 'at any stage of the proceedings'.[6]
[6] Trustek Australia Pty Ltd v Burke [1998] WASC 72; (1998) 40 IPR 455, 461. See also May v Smith [2000] WASC 313 [45] and Macmahon Contractors [23].
Order 20 r 19(1) is, however, subject to O 20 r 19(3)[7] which requires such an application to be made within 21 days of service of the writ.

Adequacy of writ

[7] Macmahon Contractors [23].

The defendant raised several difficulties with the indorsement in his written submissions.[8]
[8] Defendant's submissions dated 29 September 2023 (Defendant's September submissions) [8] - [10].
First, paragraph 1 of the indorsement did not identify any loss or damage suffered by the plaintiff, or any action taken by the plaintiff in reliance on the alleged representations. Nor did paragraph 1 provide any factual information with respect to the alleged representations; it simply asserted there were representations and their alleged effect. The indorsement also did not say what facts were relied on in support of the assertion that the defendant was involved in contraventions by T & R Homes WA Pty Ltd (TR Homes 2).
Secondly, paragraph 2 of the indorsement did not provide any information supporting the assertion that the defendant owed a duty to the plaintiff, did not identify any loss or damage said to have been caused to the plaintiff by the defendant's alleged breach of duty, and its reference to 'representations' introduced the same deficiency as affected paragraph 1.
Thirdly, paragraph 3 of the indorsement did not identify the alleged warranty or provide any information on how it arose. Nor did it identify any loss or damage said to have been suffered by the plaintiff.
Further, according to the defendant, the prayers for relief added a claim for unconscionable conduct without providing any information as to how such a claim arose.
In its written submissions in support of the first application, the defendant contended that the writ should be set aside under O 6 r 1(2) of the Rules. Alternatively, the defendant says that the indorsement should be struck out, under O 20 r 19, because it disclosed no reasonable cause of action.[9]
[9] Defendant's September submissions [12] - [13].
I digress to observe that the chamber summons by which the first application was brought refers only to O 6 r 1. Nonetheless, and although the chamber summons was only filed after appearance, it was filed well within the 21-day period referred to in O 20 r 19(3).
The plaintiff did not file written submissions in opposition to the first application.
Instead, the plaintiff (in its written submissions in opposition to the second application) simply contended as follows: [10]
[t]aking a commercial approach and in order to 'still' the Defendant's application and concerns so as to allow the proceedings to progress, the Plaintiff filed and served a Statement of Claim – the Statement of Claim effectively amending the Writ pursuant to Order 21 Rule 1 or, alternatively, subject to leave if the Defendant would not agree to proceed on this basis, Order 21 Rule 5. Thus, the proceedings could effectively progress on the basis that the case against the Defendant was fully disclosed in the Statement of Claim.
[10] Plaintiff's submissions dated 27 November 2023 (Plaintiff's November submissions) [2.3].
I do not agree for at least two reasons.
First, in my view, O 21 r 1 does not operate such as to 'effectively' amend a generally indorsed writ upon a statement of claim being filed. Nor do I consider that O 21 r 5 so operates where leave is granted to amend a statement of claim.
In my view, there is nothing within either O 21 r 1 or O 21 r 5, or within any relevant context, to suggest that the amendment of any document other than a writ itself is capable of having the effect of amending a writ.
Secondly, the statement of claim does not plead out the elements of any cause of action in support of a claim for damages for breach of duty, for negligent making of representations, or for breach of any warranty.
Nor do the prayers in the statement of claim on their face seek such relief.
The only damages claimed, according to those prayers, are damages pursuant to s 236 of the Australian Consumer Law (ACL).[11]
[11] Statement of claim, Prayer A.
Shortly before the hearing commenced, the plaintiff filed a minute of amended writ of summons. Towards the end of the hearing, the plaintiff sought leave to amend its writ in accordance with that minute.
The defendant consented to the proposed amendments, I granted leave to amend accordingly.
However, the amendments were confined to matters relevant to the plaintiff's claim for damages under s 236 of the ACL.
In signifying his client's consent, senior counsel for the defendant maintained his client's position that paragraphs 2 and 3 of the indorsement should be omitted.
In this regard, senior counsel contended that whilst the writ had been 'corrected' because of the amendments with respect to the plaintiff's claim under the ACL, the same could not be said for the claims for damages arising from any breach of duty, negligent making of the alleged representations, or breach of warranty.

Disposition - first application

The amendments to the writ do not address the first two matters referred to in paragraph 17, or any of the matters referred to in paragraphs 18 or 19 above.
In my view, these aspects still require attention.
I say this because the indorsement contains no summary of the nature of the plaintiff's claim with respect to the asserted claims appearing in the parts of the indorsement referred to in these paragraphs.[12] Nor do paragraphs 2 and 3 disclose the critical events which might be said to give rise to the claims asserted in them.[13]
[12] ABB Service v Hetherington [10]; Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595.
[13] Belgravia Nominees [10]; Macmahon Contractors [29].
Unless these matters are adequately addressed, I consider that paragraphs 2 and 3, and prayers C and D, of the (now amended) writ would be vulnerable to being struck out under O 20 r 19(1), as would the words 'for unconscionable conduct' in prayer B.
Noting the first application was not preceded by proper conferral, and that the hearing was in any event overwhelmingly focussed on the adequacy of the statement of claim, the first application should be adjourned sine die with liberty to apply pending further conferral between the parties.

The second application

As has been noted, by the second application the defendant seeks an order for summary judgment or, alternatively, that the statement of claim be struck out.

Summary judgment

Legal principles

The defendant's summary judgment application is made pursuant to O 16 r 1 of the Rules.
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 summary judgment application

[14] Zaghloul v Bayly [2021] WASCA 125 [116] - [117].

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]

Disposition - summary judgment application

[15] ts 8.

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.

Strike out

The statement of claim

The following background, on the plaintiff's account, relevantly emerges from the statement of claim.[16]
[16] Statement of claim [1] - [11].
The plaintiff was engaged in the business of providing mining equipment sales and hire services to the public.
On about 28 July 2011, the plaintiff and a company known as 'T & R Homes WA Pty Ltd' (TR Homes 1) entered into a building contract (Building Contract) for the design, construction and installation of a prefabricated dwelling at a property (Property).
The Building Contract incorporated provisions requiring TR Homes 1 to carry out the building works in accordance with the contract, in compliance with all relevant statutes, regulations and local laws, to use concrete in compliance with Australian Standards, to ensure suspended slabs and stairs were constructed in accordance with an engineer's signed details, as indicated on working drawings, and to comply with the conditions imposed by a building licence (Building Licence).
By the Building Contract, TR Homes 1 also granted, in favour of the plaintiff with respect to the pre‑cast concrete floor at the Property (Slab), a 'Structural Guarantee' (guarantee) and a 'Home Building Act Warranty' pursuant to the provisions of the Home Building Contract Act (1991) (warranty), each being for a duration of 10 years.
Between about July and October 2011, TR Homes 1 undertook the building works.
On or about 16 November 2011, TR Homes 1 issued a certificate of practical completion.
The certificate was ineffective either because the works were not substantially complete, or because conditions of the building licence had not been complied with, or both.
Without notice to the plaintiff, TR Homes 1:
(a)sold all its business and assets to TR Homes 2 in about February 2014;
(b)changed its company name, on 3 March 2014, and no longer traded as 'T & R Homes';
(c)de-registered its builder's registration number, on 9 September 2014, such that it could no longer perform work as a registered builder; and
(d)was deregistered as a company on 21 August 2022.
On 19 February 2014, a different company bearing the identical name to TR Homes 1 but a different Australian company number was registered.
That new company was TR Homes 2.
The defendant was the General Manager and an agent of TR Homes 2, as well as a shareholder in that company.
From about February 2014 until about May 2023, TR Homes 2 performed, or undertook to perform, works on the Property pursuant to the Building Contract, the building licence, the guarantee and/or warranty.
From February 2014, the defendant 'on behalf of TR Homes 2', represented to the plaintiff that:[17]
(a)TR Homes 2 had assumed all of TR Homes 1's obligations under the Building Contract, building licence, the guarantee and/or the warranty (Contractual Obligations); and
(b)TR Homes 2, and no other party, was solely responsible to the plaintiff to respond to any claim for performance of those obligations.
[17] Statement of claim [12].
Relying on those representations, the plaintiff:[18]
(a)conducted its legal and contractual affairs, and exercised its legal rights, on the basis that the Contractual Obligations were as between it and TR Homes 2 only;
(b)requested and demanded TR Homes 2 honour the guarantee and warranty, and asked no other party to do so;
(c)did not otherwise further engage with TR Homes 1 with respect to the Contractual Obligations or make any legal demands of TR Homes 1, prior to that company's deregistration; and
(d)commenced and participated in certain arbitration proceedings, pursuant to the terms of the Building Contract, naming TR Homes 2 as respondent.
[18] Statement of claim [13].
The defendant was 'involved' in making the representations in that he aided, abetted, counselled or procured [and/or] was directly or indirectly knowingly concerned in or party to them.[19]
[19] Statement of claim [14].
The defendant's conduct, in so doing, contravened the ACL because TR Homes 2 'is not and has never been' liable under the Building Contract and required or obliged to fulfil the Contractual Obligations.[20]
[20] Statement of claim [15].
The representations were in respect of future matters, including that TR Homes 2 'would' fulfil the Contractual Obligations, and the defendant did not have reasonable grounds for making them such that the representations are taken to be misleading.[21]
[21] Statement of claim [16]. The plaintiff seeks to rely on s 4 of the ACL.
Induced by and in reliance upon the defendant's conduct, the plaintiff acted to its detriment as follows:[22]
[22] Statement of claim [17], read with [6.5] and [18].
(a)from about 15 May 2014, the plaintiff:
(i)did not make any demand, and otherwise forbore, exercising its legal rights against TR Homes 1 with respect to defects identified in an expert engineer's report dated 11 November 2022, defects arising from rectification works undertaken at the Property in about May/June 2014, with respect to the Slab, and/or under the guarantee or warranty;
(ii)instead, made 'those demands' of TR Homes 2 'as directed';
(b)as a result:
(i)the plaintiff lost its rights to procure further remedial works to be undertaken by, or otherwise to commence any arbitral or other proceedings against, TR Homes 1 relating to those works (in effect in consequence of its de-registration as a builder and as a company); and
(ii)'all relevant statutory limitation periods' within which to commence any proceedings against TR Homes 1 in contract, in tort, under the ACL, under the guarantee, or under the warranty, 'have now expired'.
As a result of the defendant's contraventions, the plaintiff suffered loss and damage (as particularised).[23]

Legal principles

Pleadings

[23] Statement of claim [19].

Pleadings are the formal expression of the legal and factual basis of a party's case.
Their object is twofold: to ensure a fair trial by putting the other party on notice of the case to be met, and to define the issues for decision so that the Court can control the preparation of the case and the conduct of the trial.[24]
[24] EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 [124].
It follows that a party's pleadings must adequately disclose the party's case.
This is consistent with the notion that the rules and practice of this Court do not permit trial by ambush; a plaintiff must 'lay its cards on the table so that all the true issues are identified and can be fairly tried in due course'.[25]
[25] Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 5] [2014] WASC 76 [50].
The degree of precision required in a pleading or particulars depends on the case.[26]
[26] Rosebridge Nominees [50].
Indeed, the scope of issues in a case may be informed by considering the pleadings in the context of other case management steps.[27]
[27] Cf. Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [4] - [7].
However, neither the (pre-trial) provision of outlines of evidence nor the identification (in many commercial cases) of the issues that will need to be determined by the trial judge mean that the need for proper pleading can be ignored.[28]
[28] Interstart Pty Ltd v Halston Capital Pty Ltd [2022] WASC 105 [14] - [15].
A pleading must still fulfil its basic functions:[29] it must disclose an arguable cause of action and apprise the parties of the case that has to be met.[30]
[29] Interstart v Halston [15]; Barclay v Dampier Port Authority [7].
[30] DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170 [31].
A pleading will not satisfy the latter requirement unless it includes every material fact which, if not pleaded, might take an opposing party by surprise.[31]
[31] Interstart v Halston [14]; F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290 [135] - [136]; 3meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128; (2012) 43 WAR 350 [73].
Allegations of fraud are an example. Such allegations, or assertions alleging conduct which is effectively fraud, must be pleaded with the same clarity as in an action in deceit.[32]
[32] Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 [36].
Similar considerations apply to allegations of conduct said to be in breach of provisions such as s 18 of the ACL.[33]
[33] Oldfield Knott Architects v Ortiz Investments [36] where Ipp J (Wallwork J agreeing [93]) quoted from Drummond J in Gold Coast City Council v Pioneer Concrete Pty Ltd [1998] FCA 791; (1998) 157 ALR 135 who had in turn remarked, in the context of the statutory antecedent of s 18 (s 52 of the Trade Practices Act 1974 (Cth)), that '[p]recision in identifying the facts relied on as constituting the statutory cause of action is just as necessary as precision in pleading a case of common law fraud' (p 149).
As the High Court observed in Forrest v Australian Securities and Investments Commission:[34]
It is fundamental, and long established, that if a case of fraud is to be mounted, it should be pleaded specifically and with particularity. A pleading of fraud will necessarily focus attention upon what it was that the person making the statement intended to convey by its making. And the pleading must make plain that it is alleged that the person who made the statement knew it to be false or was careless as to its truth or falsity. (citations omitted)

Strike out application

[34] Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 [26] (French CJ, Gummow, Hayne & Kiefel JJ).

Order 20 r 19(1) of the Rules relevantly provides:
(1) The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that —
(a)it discloses no reasonable cause of action or defence, as the case may be; or
…
(c)it may prejudice, embarrass or delay the fair trial of the action; or
…
The legal principles governing strike out applications are well established.
They were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4],[35] at [60(a)] - [60(j)], which summary was approved by the Court of Appeal in English v Vantage Holdings Group Pty Ltd[36] and DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd.[37]
[35] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398.
[36] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56].
[37] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [226].
I gratefully adopt (without repeating) her Honour's helpful analysis.

The alleged representations

The alleged representations are pleaded in paragraph 12 of the statement of claim, which reads:
12.From February 2014 the Defendant (on behalf of TR Homes 2) represented to the Plaintiff:
12.1.it had assumed all TR Homes 1 obligations under the Building Contract, [guarantee], Building Licence and or [warranty] under the Contractual Obligations; and
12.2.TR Homes 2, and no other party, was solely responsible to the Plaintiff to respond to any claim for performance of the Contractual Obligations.
Subjoined to paragraph 12 are 'particulars' which span some five pages and numerous paragraphs.
Five distinct alleged representations emerge from these parts of the plaintiff's pleading. Much of the oral argument centred around them.[38]

The defendant's challenges to the statement of claim

[38] The five representations are defined in the pleading as the 'First Meeting Admission Representation', 'Second Meeting Admission Representation', 'Third Admission Representation', 'Fourth Admission Representation', and 'Fifth Admission Representations', respectively. Consistent with the approach adopted by the parties in their written submissions, each of the alleged representations will be referred to in these reasons in more simplified form.

The defendant's arguments in support of its strike out application were to the following effect.[39]
[39] Defendant's written submissions dated 17 November 2023 (Defendant's November submissions) [5] ‑ [31] and ts 12.
First, the conduct comprising the first and second representations falls outside the scope of the indorsement. In this regard, all the events alluded to in the indorsement are said to have occurred between 2 December 2021 and 20 April 2023. However, the first and second representations were allegedly made in May 2014.
Secondly, the conduct said to comprise the first and second representations, particularised in paragraphs 12.2.1 and 12.2.3 of the statement of claim, does not support the propositions in paragraph 12.
Thirdly, any claim for damages arising in consequence of the first and second representations is statute barred by the limitation period in s 236(2) of the ACL (6 years).
Fourthly, the plaintiff enjoys no prospect of success with respect to any claim for damages arising in consequence of the third representation. This is because the third representation comprised conduct which is said to have occurred between 9 December 2021 and 20 September 2022, which conduct allegedly caused the plaintiff to abandon its rights against TR Homes 1. However, any such rights would have expired prior to 9 December 2021.
Fifthly, the same conclusion should be drawn regarding the fourth representation. This is because the alleged fourth representation is said to have comprised an admission made in arbitration proceedings which proceedings were not commenced until after 21 August 2022; being, again, after any rights enjoyed by the plaintiff against TR Homes 1 had already expired.
Sixthly, the fifth representation is embarrassing and discloses no reasonable cause of action. This is because the pleading does not refer to any conduct of the defendant in particularising how the defendant made the alleged representation.
Seventhly, the statement of claim is ambiguous and embarrassing because it does not make clear whether the defendant is sued directly as a contravenor or as a person 'involved' in a contravention.
Finally, where a contravenor is not a corporation, the contravenor must be sued under the State equivalent of the ACL, not under the ACL itself. As currently pleaded, the action, brought under the ACL, is misconceived and cannot succeed.

First and second representations

Paragraphs 12.2.1 to 12.2.6 of the statement of claim relate to the first and second representations.
They read as follows:
12.2.1.Meeting between the Defendant, as the General Manager and agent of TR Homes 2, and Mr Milnes (of the Plaintiff) at the Property on Thursday, 15 May 2014 wherein the Defendant stated, in effect, the business of TR Homes 1 had been purchased and the ongoing issues of rectification would now be resolved by the new owner of TR Homes 1 ('[first representation]').
12.2.2.The [first representation] was confirmed by contemporaneous email from Mr Milnes to David Haynes of the Plaintiff on Thursday, 15 May 2014, at 3:07pm, which confirmation TR Homes 2 did not contest or dispute.
12.2.3.Meeting at the Property between Mr Milnes and TR Homes 2 Karratha supervisor on Sunday, 18 May 2014, wherein TR Homes 2's officer, Alex Benson, acting on behalf of TR Homes 2 and as instructed by the Defendant, stated the Defendant was going to:
'… issue a report stating he is approving the replacement of
majority of roof as he believes this is the underlying factor of
where the problems exists and he is approving the installation of under-house cavity ventilation to hopefully eliminate the ongoing moisture issues. This will involve removing sections of concrete around the house, drilling and installing pipe and vents and reconcreting.'
('[second representation]').
12.2.4.The [second representation] was confirmed by contemporaneous email from Mr Milnes to Mr Haynes and Chen Wei Ng (of the Plaintiff) dated 20 May 2014, at 1:55pm.
12.2.5.Rectification works were performed on the Property and undertaken by TR Homes 2 by way of replacement flooring; roof repairs; and installation of under house ventilation in or about May/June 2014 ('Rectification Works').
12.2.6.The Rectification Works were subsequently confirmed by contemporaneous email from Mr Milnes to the Defendant (for TR Homes 2) dated 11 July 2014, at 3:55pm; and email from Mr Milnes to David Haynes and Chen Wei Ng (of the Plaintiff) dated 2 October 2014, at 9:34am. (original emphasis)

Outside scope of indorsement?

At the time the hearing commenced, the indorsement relevantly stated that the plaintiff claimed damages against the defendant: [40]
for …being either 'involved' … in …a contravention or … 'involved' in conduct that constitutes a contravention …of [s 18 of the ACL] … by … TR Homes 2 … in circumstances where the defendant was 'involved' from on or about 2 December 2021, until 20 April 2023 …. (emphasis added)
[40] Writ of summons, indorsement of claim [1].
Thus, the indorsement did not suggest, on its face, that the defendant had engaged in any conduct at all prior to 2 December 2021.
The defendant complained that in pleading the first and second representations the plaintiff impermissibly sought to rely on conduct outside the scope of the writ; namely, conduct occurring in May 2014.[41]
[41] Cf. Renowden v McMullin (597); ABB Service v Hetherington [8].
The plaintiff's answer was twofold.
First, according to the plaintiff: [42]
[The statement of claim] is advanced on the basis it has amended the Writ by operation of Order 21 Rule 1 (on the basis the cause of action remains as in the Writ) or, alternatively, if leave is required, Order 21 Rule 5. That is, if the Defendant objects to this practical approach of allowing the Statement of Claim to stand as the Plaintiff's claim, the Plaintiff will seek leave to amend. In this regard, reference is made to Order 1 Rules 4A and 4B.
[42] Plaintiff's November submissions [9.3].
Secondly, according to the plaintiff, the defendant's objection disregards the fact that the representation pleaded, in paragraph 12 of the statement of claim, is to the effect that the defendant made and continued to make representations from February 2014, and the defendant's conduct was was not '[temporally] limited to February 2014, but rather, is continuing … until 2023 …'.
Therefore, according to the plaintiff, the period 2 December 2021 to 20 April 2023 (being the period specified in the writ) '[falls] within the period from February 2014 until 2023'.[43]
[43] Plaintiff's November submissions [9.4] - [9.8].
I do not accept either of these arguments.
As to the first argument, and as noted earlier, in my view O 21 r 1 does not operate such as to amend a generally indorsed writ upon a statement of claim being filed. Nor does O 21 r 5 so operate where leave is granted to amend such a statement of claim.
Nor in my view does either O 1 r 4A or O 1 r 4B assist the plaintiff. This is at least because neither the attainment of the goal mentioned in O 1 r 4A, nor of the objects identified in O 1 r 4B(1) requires the Rules to be construed in a manner which negates any of three key functions of an indorsement identified by McLure J in ABB Service v Hetherington.[44]
[44] ABB Service v Hetherington [7] - [10].
The plaintiff's second argument is also misconceived. Whatever the statement of claim might say, the defendant's alleged conduct was plainly confined to a period commencing on 2 December 2021 according to the writ itself.

As noted, at the hearing the plaintiff was granted leave to amend its writ.
Among the amendments made were the following changes to the words appearing between paragraphs 1.2 and 1.3 of the indorsement:
… in circumstances where the defendant was 'involved' from February 2014 ~~on or about 2 December 2021, until 20 April 2023~~, in respect to…
The defendant's first objection falls away in consequence of this amendment. Had the amendment not been made, I would have upheld the first objection and struck out paragraphs 12.1.1 to 12.1.6 for the reasons advanced by the defendant.

Paras 12.2.1 and 12.2.3 not supportive of paras 12.1 and 12.2?

The defendant says paragraphs 12.21 and 12.2.3 of the statement of claim are incapable of supporting the proposition that the defendant represented to the plaintiff that TR Homes 2 had assumed all of TR Homes 1's Contractual Obligations, and that TR Homes 2 and no other party was solely responsible to the plaintiff to respond to any claim for performance of those obligations.[45]
[45] Being the propositions reflected in paragraphs 2.1 and 2.2 concerning the first and second representations respectively.
Therefore, according to the defendant paragraphs 12.2.1 and 12.2.3 embarrassing and a claim based on the first and second representations 'would not succeed'.[46]
[46] ts 12.
This is because, as I understand the defendant's contentions: [47]
(a)paragraph 12.1 pleads that TR Homes 2 had assumed all the contractual obligations of TR Homes 1. However, taken at its highest, paragraph 12.2.1 is to the effect that TR Homes 2 would only be responsible for 'rectification'; and
(b)all paragraph 12.2.3 says, in substance, is that Mr Benson told the plaintiff that the defendant was going to issue a report approving '… replacement of the roof…'; even were it to be accepted that Mr Benson was an officer of TR Homes 2 and was instructed by the defendant.
[47] ts 12 - 13.
I do not agree that a claim based on the first or second representation would necessarily fail for the reasons relied upon by the defendant.
On its face, paragraph 12.2.1 seeks to convey the effect of certain words allegedly spoken by the defendant during a meeting; not any broader context within which those words may have been spoken.
A similar observation may be made regarding paragraph 12.2.3 which quotes words said to have been spoken by Mr Benson (allegedly on the defendant's behalf) during another meeting.
Sight should also not be lost of the context in which paragraphs 12.2.1 and 12.2.3 appear. That context includes the whole of paragraph 12 of the statement of claim.
In this regard:
(a)paragraph 12 pleads that the defendant (on behalf of TR Homes 2) represented the two matters pleaded therein from February (sic) 2014;
(b)according to the 'particulars' subjoined to paragraph 12, the several representations are said to have occurred over a lengthy period; ie. between May 2014 and May 2023; and
(c)the plaintiff is said to have relied on the alleged representations, and acted to its detriment in various ways,[48] from about May 2014.[49]
[48] Statement of claim [13] and [17].
[49] Statement of claim [17.1].
There is much to be said for the dictum that 'in law context is everything'.[50] Certainly, context matters in determining whether misleading or deceptive conduct has occurred for the purposes of s 18 of the ACL.[51]
[50] R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, 548 [28] (Lord Steyn).
[51] ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73 [38] (Allsop CJ); Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45, 84 - 85 [100] - [101]; [106]; Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177, 202.
For at least these reasons, I do not consider it would not be open to the plaintiff (on its statement of claim) to prove facts at the trial which would constitute a cause of action; let alone that the facts pleaded in support of the first and second representations could not, conceivably, give rise to a claim for damages.[52]
[52] Vantage Holdings v Donnelly [60(e)].
I also do not consider that paragraphs 12.2.1 and 12.2.3 are evasive; conceal or obscure the real questions in controversy; to be ambiguous or not reasonably intelligible or to raise immaterial or irrelevant issues; fail to confine the issues or state the case of the plaintiff with reasonable particularity; or raise a case in terms which are simply too general, such as to render them vulnerable to being struck out on the grounds that they may prejudice, embarrass or delay the fair trial of the action.[53]
[53] Vantage Holdings v Donnelly [60(i)].
At least not when those paragraphs are read in the context of the pleading as a whole.

First and second representations statute barred?

According to the defendant, the plaintiff's claims based on the first and second representations are statute barred because: [54]
(a)any cause of action based on the first and second representations accrued when the plaintiff first suffered loss;[55]
(b)that loss was first suffered when the plaintiff 'abandoned' its rights against TR Homes 1 in reliance on the alleged representations (from on or about 15 May 2014),[56] or the plaintiff's right to 'procure further remedial works, to be undertaken by … TR Homes 1' was lost when TR Homes 1 was deregistered as a builder (on 9 September 2014);[57] and
(c)both of those events occurred more than six years before the writ was issued.
[54] Defendant's November submissions [7] - [10], read with [12].
[55] Relying on Wardley Australia Ltd v Western Australia [1992] HCA 5; (1992) 175 CLR 514, 526, 527, 532 [12] ‑ [16], [25] ‑ [27].
[56] Statement of claim [17.1].
[57] Statement of claim [17.1.4.1].
Nevertheless, senior counsel for the defendant accepted:
(a)consistent with the decision of the Court of Appeal in Belgravia Nominees,[58] that where a plaintiff seeks to add a cause of action the amendment would only be disallowed if there was no doubt that a limitation defence would defeat the claim;
(b)that this principle would apply if the plaintiff, with leave, amended his writ to add the causes of action relying on conduct alleged to have been engaged in during 2014; and
(c)that if it were 'not clear' that 15 May 2014 was the date on which the plaintiff first suffered loss, the matter had to go to trial.[59]
[58] [46(f)] and [47].
[59] ts 14 - 16.
These concessions were properly made.
On the pleading as it currently stands it is at this stage, in my view, far from clear that any loss in the relevant legal sense was necessarily first suffered by the plaintiff in May 2014.
In this regard, I do not read paragraph 17.1 of the statement of claim to allege that the plaintiff, from that moment, relinquished (in the sense of permanently abandoning) its rights against TR Homes 1. Instead, I take it from paragraph 17.1 read in context, that the plaintiff simply neither made demand of nor exercised its legal rights against TR Homes 1, in the circumstances pleaded.[60]
[60] Cf. statement of claim [15.2].
Nor do I consider it safely open to conclude that loss was necessarily first suffered by the plaintiff when TR Homes 1 was deregistered as a builder in September 2014.
In any event, in circumstances where the plaintiff has now been granted leave to amend his writ to allege that the defendant was 'involved' in the alleged contraventions of TM Homes 2 from 2014, the question of whether the plaintiff's claim is statute-barred, to the extent that it relies on the first and second representations, is in my view, a matter for trial.[61]

Third and fourth representations

[61] Cf. Belgravia Nominees. See also Wardley Australia Ltd v Western Australia (533) [31].

Paragraphs 12.2.7 to 12.2.13 of the statement of claim relate to the third and fourth representations.
Those paragraphs read as follows:
12.2.7.Email from the Defendant to Paul Roberts of the Plaintiff, dated 9 December 2021 at 2:02pm, wherein the Defendant (for TR Homes 2) stated:
'Your letter states that you have had several specific inspections performed at the property. Could you provide/reissue details to support your claims so we can review.'
12.2.8.Email from Mr Roberts to the Defendant, attaching moisture test results dated 10 December 2021 at 9:08am and the report's acceptance by TR Homes 2 without dispute.
12.2.9.Email from Mr Roberts to the Defendant dated 12 January 2022, at 12:16pm, seeking a response.
12.2.10.Letter from Plaintiff's lawyers, Tudori Hager Grubb ('THG'), to TR Homes 2 dated 10 June 2022, addressed to and received by TR Homes 2 at '105 Kelvin Road, Maddington WA 6109':
12.2.10.1.stating, inter alia, TR Homes 2 was, for the purposes of Rectification Works, the builder of the Property; and
12.2.10.2.which statement TR Homes 2 did not dispute.
12.2.11.Responsive emails from the Defendant (as General Manager of and agent for TR Homes 2) to THG dated:
12.2.11.1. 18 June 2022 at 12:20pm;
12.2.11.2.12 July 2022 at 6:09pm;
12.2.11.3.25 July 2022 at 11:30am;
12.2.11.4.26 July 2022 at 3:24pm;
12.2.11.5.4 August 2022 at 4:14pm;
12.2.11.6.20 September 2022 at 10:25am,
and by TR Homes 2, by the Defendant as its General Manager and agent the Defendant's, conduct in:
12.2.11.7.never disputing, at any relevant time up until May 2023, that TR Homes 2 was the relevant party which entered into the Building Contract and is liable to the Plaintiff under the Contractual Obligations;
12.2.11.8.holding (or being entitled to hold) all relevant 'Contracts' documents under which liability and risk had then passed, pursuant the [(TR Sale Agreement)] and, upon written request from the Plaintiff, providing those documents to it (inclusive of all engineering and Shire plans for the Property), did thereby represent, that TR Homes 2 was, at all material times, representing itself as the party who had assumed or had passed to it, all risk and liability under the Contractual Obligations ('[third representation]').
12.2.12.At all relevant times until May 2023, the Defendant as General Manager of and agent for TR Homes 2, instructed the solicitors for TR Homes 2 that it was the party responsible for fulfilling the builder's obligations under the Building Contract and to serve on the Plaintiff a Points of Defence in an arbitration proceeding as between the Plaintiff and TR Homes 2 as commenced pursuant to the terms of the Building Contract (the 'Arbitration Proceedings'), admitting that plea against it with the expectation the Plaintiff would thereafter rely upon that admission.
12.2.13.The agreement and attendance by the Defendant, on behalf of TR Homes 2, at the Mediation in the Arbitration Proceedings between the Plaintiff and TR Homes 2, on 21 March 2023, representing, at all material times, that TR Homes 2 was:
12.2.13.1.liable to mediate the Arbitration Proceedings with the Plaintiff in respect to the Contractual Obligations as the party who was liable for or responsible for compliance with the Building Contract;
12.2.13.2.authorised to settle the Arbitration Proceedings with the Plaintiff regarding the Contractual Obligations and generally; and
12.2.13.3.did not seek to withdraw the pleaded admission TR Homes 2 was the relevant builder of the Property as admitted at paragraph [3] of the Points of Defence lodged by TR Homes 2 in the said Arbitration Proceedings ('[fourth representation]'); (original emphasis)
The defendant says a claim based on the third or fourth representation has no prospect of success.[62]
[62] Defendant's November submissions [15] and [18].
According to the defendant this is because all rights said to have been lost by the plaintiff in consequence of the plaintiff's reliance on those representations had already expired by the time they were allegedly made.[63]
[63] Defendant's November submissions [15] and [18] and ts, 16 - 22.
Thus, on the defendant's argument, no cause of action giving rise to any such rights could have been maintained by the plaintiff against TR Homes 1.
In addressing the defendant's submissions relating to the third and fourth representations, the plaintiff effectively contended as follows: [64]
(a)whether all rights the plaintiff had against TR Homes 1 will have expired by a particular date depends on whether the limitation period was extended by operation of s 47 of the Limitation Act 2005 (WA). If the defendant raised a contest about this, it would be a matter for trial;
(b)the relevant limitation issue 'may' only start to run from the date the rectification works were completed. This too was a matter for trial;
(c)the above matters 'may' be relevant in determining the period of time the representation had 'detrimental effect'; and
(d)until the defence was provided, the matters in contest 'are only to be speculated upon'.
[64] Plaintiff's November submissions [9.21] and [9.26].
On 7 December 2023, following the adjournment of the hearing, the Court sent a communication to the parties (Court communication) seeking their further assistance with respect to certain matters.
The Court communication relevantly stated:
1.Paragraph 17 of the statement of claim pleads that the plaintiff acted to its detriment in the ways specified, and that certain consequences followed as a result.
2.One of those alleged consequences appears in paragraph 17.1.5, where it is said that all relevant statutory limitation periods within which to commence proceedings against TR Homes 1 had expired.
3.According to paragraph 17.1.5, the expired causes of action were in contract, tort, under the ACL, and under the Structural Guarantee or the Home Building Act Warranty (as defined).
4.Does the statement of claim plead sufficient material facts to adequately inform the reader:
(a)What facts or circumstances gave rise to each of alleged cause of action referred to in paragraph 17.1.5 of the statement of claim?
(b)When each of those alleged causes of action had, in fact, expired?
5.If the answer to either 4(a) or (b) above is yes, how and why is that so, and where do the facts in question appear in the pleading? In particular, where in the pleading do the facts appear that adequately inform the reader when each cause of action had, in fact, expired (and precisely when is it said that each cause of action in fact expired)?
6.If the answer to either 4(a) or (b) above is no, is there any reason why relevant parts of its statement of claim should not be struck out pursuant to O 20 r 19(1)(c)?
In response, the plaintiff in effect advised the Court that the statement of claim did plead sufficient facts to adequately inform the reader when each cause of action had, in fact, expired,[65] and sought to explain why that was so.[66]
[65] Plaintiff's submissions dated 20 December 2023 (Plaintiff's December submissions) [5], read with [4].
[66] Plaintiff's December submissions [6].
As part of its response to the question posed at point 4(b) of the Court communication, the plaintiff informed the Court that each alleged cause of action 'will have expired', as follows:
7.1in contract, six years from the breach of contract in the delivery of the defective works, so given practical completion was certified on 16 November 2011 in around November 2017 (paragraph 8 of the SOC);
7.2in tort, six years from when the Plaintiff first suffered loss or damage as a result of the negligence or breach of duty in the delivery of the works, being on or about the date notice of the defects was given in May 2014 (paragraphs 12.2.1 to 12.2.4 of the SOC);
7.3under the ACL, as for the claim in tort (refer s236(2) of the ACL);
7.4under the Structural Guarantee or the Home Building Act [Warranty] from the date the structural works were delivered and practical completion certified but the relevant works were in breach of the warranty, the warranty period being 10 years so November 2021.[67] (emphasis added)
[67] Plaintiff's December submissions [7].
As will be seen, all of the dates contemplated by the plaintiff's response predate the very first of the dates upon which conduct relied upon by the plaintiff in the statement of claim as giving rise to either the third or the fourth representation allegedly occurred; namely, 9 December 2021.[68]
[68] Statement of claim [12.2.7].
Despite the above, according to the plaintiff: [69]
(a)when each of the causes of action will have expired is a matter of law, to be determined on the facts as 'ultimately proved';
(b)it will be open for the defendant to 'admit' that the limitation periods had expired (in which case the issue will be 'closed' as between the parties), and that if expiry is 'in contest', then the 'above timings … will, on the facts, established at trial, be for determination by the Trial Judge …';
(c)it will be necessary to wait until the defendant to pleads his defence before it will be known if there is an issue or issues in relation to whether the limitation periods had or have expired and when; and
(d)if the defendant pleads that TR Homes 2 undertook the rectification works as an agent or subcontractor for TR Homes 1 or as a volunteer the limitation periods may run from different times.
[69] Plaintiff's December submissions [8] - [10].
It seems to me that the above circumstances are, at this juncture, largely matters for speculation.
On the other hand, at least three matters appear presently relevant.
First, the questions in the Court communication were posed in the context of the defendant having brought an application to strike out the plaintiff's pleading. The focus of that application is the pleading itself. Not on what the other party might do in response.
Secondly, the Court's questions included whether sufficient material facts had been pleaded to adequately inform the reader when each allegedly forgone cause of action had, in fact, expired.
Thirdly, in its response, the plaintiff not only effectively advised the Court that its pleading did adequately apprise the reader of the matters in question, but also when, on the plaintiff's own case, each allegedly forgone cause of action had, in fact, expired.
Since the last of the dates now identified by the plaintiff precedes the earliest date upon which conduct relied upon by the plaintiff as having given rise to either the third or fourth representation allegedly occurred, the conclusion is irresistible that a claim based on either alleged representation can have no prospect of success on the plaintiff's case as currently pleaded.
In short, any cause of action enjoyed by the plaintiff against TR Homes 1 would, on the plaintiff's own case, already have expired by the time those alleged representations are said to have been made.
It follows that no recoverable loss could be said to have been suffered in consequence of either of them.
In those circumstances, I do not consider it would be open to the plaintiff to prove facts at the trial which would constitute a cause of action based on any reliance on either the third or the fourth representation.
Accordingly, the plaintiff's claim should be struck out to that extent.
If I am wrong in reaching the above conclusion, the plaintiff's claim should in my view be struck out, to the same extent, on the grounds that it may in any event prejudice, embarrass, or delay the fair trial of the action.[70]
[70] O 20 r 19(1)(c) of the Rules.
I say this because any attempt to maintain a plea that a claim for damages arises in consequence of any reliance on the third or fourth representation would, in above circumstances, raise an immaterial or irrelevant issue.[71]

Fifth representation

[71] Vantage Holdings v Donnelly [60(i)].

Paragraph 12.2.14 of the statement of claim relates to the fifth representation.

The paragraph is followed by what might best be described as 'particulars of particulars'. Together, these parts of the pleading read as follows:
12.2.14.TR Homes 2 has otherwise admitted liability for structural defects in the Slab by its performance of ongoing (unsuccessful) remedial work, in attempting the Rectification Works and inspections of the Property to repair the ancillary and consequentially moisture damaged flooring, installed immediately above the Slab ('[fifth representation]').
Particulars
12.2.14.1.15.05.2014, 3:07pm - Email Gary Milnes to David Haynes re meeting with the Defendant (as General Manager of and agent for TR Homes 2). The Defendant admitted, inter alia to Mr Milnes: 'there is moisture under the slab… apologised for ongoing issues.'
12.2.14.2.12.01.2022, 3:01pm - Email from Gary Milnes to Paul Roberts (Tutt Bryant). Mr Milnes confirms that, in or about October 2021, representatives from TR Homes 2 attended the Property and removed a section of concrete pathway from the side of the Property and checked the Slab underneath; and
12.2.14.3.10.12.2021, 9.08am - Email Paul Roberts (Tutt Bryant) to the Defendant (for TR Homes 2) attaching separate Moisture Test results which state, inter alia, 'moisture beading to the underside of the slab which would be a cause of the previous issues with floor coverings through the home and could have also been one of the reasons for break down in waterproofing of the ensuite shower and could also cause issues with remaining wet areas in the home'. (original emphasis)
On its face, paragraph 12.2.14 is presented as a particular of the allegation, in paragraph 12.2, that the defendant made certain representations on behalf of TR Homes 2.
However, according to the defendant, none of the three paragraphs relating to the fifth representation refer to any conduct of the defendant.
This is because:
(a)paragraph 12.2.14.1 merely refers to a communication between two employees of the plaintiff. To the extent that the communication is relied upon as evidence of conduct by the defendant, it repeats what is already said in paragraph 12.2.1;
(b)paragraph 12.2.14.2 also refers to a communication between two employees of the plaintiff. It refers to no conduct of the defendant at all; and
(c)paragraph 12.2.14.3 is a communication from an employee of the plaintiff to the defendant. It also refers to no conduct of the defendant at all.[72]
[72] Defendant's November submissions [19] - [20].
Accordingly, the defendant says the entirety of the pleading in relation to the fifth representation is embarrassing and does not disclose any reasonable cause of action.
On the other hand, the plaintiff effectively contends that:[73]
(a)paragraphs 12.2.14.1 and 12.2.14.3 give notice to the defendant that the plaintiff relies on the defendant's specific statement of being on notice of particular issues and on his admission of 'ongoing' issues or failures;
(b)paragraph 12.2.14.1 records that the defendant apologised for 'the ongoing issues (which [needed] to be remedied)'. The exact terms and context of that representation are matters for trial:
(c)the matters pleaded in paragraph 12.2.14.2 will be relied upon at trial, given it will (or may be) open to the plaintiff to establish the particular rectification works were undertaken as a result of directions or interaction with the defendant;
(d)regarding paragraph 12.2.14.2, the fact representatives of TR Homes 2 attended the property and carried out rectification works 'may' be an admission of the ongoing work being undertaken by TR Homes 2 in answer to the warranty claims. Whether the defendant was directly involved in such conduct, as the General Manager of TR Homes 2, is a matter for trial; and
(e)paragraph 12.2.14.3 gives notice that the content of the moisture test was provided to and thus known by the defendant (who may wish to deny he saw the Moisture Test or deny he accepted it), the relevance of the communication, being an email which was sent to the defendant. Whether the defendant did not contest the matters stated or otherwise engage in the review raised by Mr Roberts are matters for trial.
[73] Plaintiff's November submissions [9.28] - [9.29] and [9.31].
I agree with senior counsel for the defendant that none of paragraphs 12.2.14.1, 12.2.14.2 or 12.2.14.3 refer to any conduct of the defendant himself. However, paragraph 12.2.14 seemingly also relies on TR Homes 2 having 'otherwise admitted liability' for structural defects in the Slab by its performance of ongoing remedial work, in attempting the rectification works and inspections of the Property (to repair the ancillary and consequentially moisture) as matters giving rise to the fifth representation itself.
Seen in this context, paragraphs 12.2.14.1 to 12.2.14.3 appear to identify email correspondence evidencing the ongoing performance, attempts and inspections by TR Homes 2.
Accordingly, and in the context of the pleading as a whole, I do not consider that the plaintiff's allegations in support of the fifth representation fail to disclose a reasonable cause of action in the sense that it would not be open to the plaintiff (on the statement of claim) to prove facts at the trial which would constitute a cause of action. I would therefore not strike out the allegations relied upon in support of the fifth representation on this basis.
Nonetheless, I consider the allegations relating to the fifth representation to be embarrassing.
This is because, as the defendant correctly notes, paragraphs 12.2.14.2 and 12.2.14.3 identify no conduct which the defendant is himself said to have engaged in, whilst paragraph 12.2.14.1 appears to refer to the conduct which is already relied upon in support of the first representation (paragraphs 12.2.1 and 12.2.2). It is, therefore, a 'duplication'.
In my view, the allegations in support of the fifth representation are ambiguous or not reasonably intelligible, raise seemingly immaterial or irrelevant issues, and/or fail to state the case of the plaintiff with reasonable particularity.[74]
[74] Vantage Holdings v Donnelly [60(i)].
They should be struck out for these reasons.

Direct contravention?

According to the defendant, the statement of claim is ambiguous and embarrassing because it does not make clear whether the defendant is sued 'directly' as a contravenor or as a person involved in a contravention by TR Homes 2.[75]
[75] Defendant's November submissions [22].
In this regard, the defendant invites the Court's attention to paragraphs 19 and 15 of the statement of claim. Paragraph 19 refers to 'the Defendant's contraventions of the ACL pleaded in paragraph 15 above', while paragraph 15 relevantly says that '[t]he Defendant's conduct as pleaded in paragraph 14 above was conduct in contravention of s.18 of [the ACL]…'. (emphasis added)
I do not accept this submission.
Once the above allegations are read in their proper context, it is in my view plain that the plaintiff intends proceeding against the defendant based on allegations of accessorial liability alone.
I say this having particular regard to:
(a)the chapeau of paragraph 12 of the statement of claim (where the pleader makes expressly clear that the various alleged representations were made by the defendant 'on behalf of TR Homes 2'); and
(b)paragraph 14, which expressly seeks to plead the elements of accessorial liability (and which, in turn, refers back to the conduct alleged in paragraph 12).

State Act not Commonwealth Act?

According to the defendant, this action ought to have been brought under the 'state equivalent' of the ACL, namely the Australian Consumer Law (WA) (ACLWA),[76] and not the ACL itself, because the defendant is an individual.[77] In this regard, the defendant relied on Zervas v Burkitt (No 2),[78] a decision of the New South Wales Court of Appeal. As such the defendant contended that the action as pleaded is misconceived and cannot succeed.
[76] As that expression is defined in s 17 (read with s 19) of the Fair Trading Act 2010 (WA). (The text of ACL and the ACLWA is identical.)
[77] Defendant's November submissions [29] - [30].
[78] Zervas v Burkitt (No 2) [2019] NSWCA 236 [54].
The plaintiff disagreed.
Having said the above, I note that all potentially relevant parts of the indorsement now refer to the ACL 'and/or' the ACLWA in consequence of the amendments made to the writ at the hearing.
Further:[79]
(a)in written submissions, the plaintiff effectively advised the Court that similar amendments would be made to the statement of claim;
(b)shortly before the hearing, the plaintiff filed a minute of proposed amended statement of claim foreshadowing such amendments; and
(c)senior counsel for the defendant indicated at the hearing, if the proposed amendments were made, this would 'solve the problem'.
[79] Plaintiff's November submissions, [9.49]. See also ts 29 - 30, 62.
Given the above, I no longer understand it to be necessary for me to attempt to resolve this debate.

Accessorial liability

Section 236(1) of the ACL provides that if a person suffers loss or damage because of the conduct of another person which contravenes (relevantly) s 18, the person may also recover the amount of the loss or damage by action against any person 'involved' in the contravention.
Section 2 of the ACL defines 'involved' as follows:
a person is involved, in a contravention of a provision of [the ACL] or in conduct that constitutes such a contravention, if the person:
(a) has aided, abetted, counselled or procured the contravention; or
…
(c)has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; …
The statutory antecedent of this definition was s 75B(1) of the Trade Practices Act 1974 (Cth) (TPA), and sub-sections 75B(1)(a) and (c) read in terms identical to paragraphs (a) and (c) of the definition of 'involved' in the ACL.
In Yorke v Lucas,[80] the plurality of the High Court[81] held that sub‑section 75B(1)(a) required 'knowledge of the acts constituting the contravention and of the circumstances which [gave] those acts the character [of "misleading or deceptive or … likely to mislead or deceive"]'.[82]
[80] Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661.
[81] Mason ACJ, Wilson, Deane & Dawson JJ.
[82] Yorke v Lucas (669) [14].
To similar effect, the plurality concluded that sub‑section 75B(1)(c) required a party to the contravention to be an 'intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention'.[83]
[83] Yorke v Lucas (670) [17]. See also Brennan J at (676 – 677) [14] - [15].
In the Court communication, the parties were also asked whether the statement of claim pleaded sufficient material facts to adequately inform the reader:[84]
(a)how the defendant was said to have aided, abetted, counselled or procured, or to have been directly or indirectly knowingly concerned in or party to, TR Homes 2 making the alleged representations; and
(b)of the circumstances (if any) from which it was to be inferred that the defendant had actual knowledge of the essential facts constituting the alleged contravention of the ACL by TR Homes 2, such as to make the defendant an intentional participant in the alleged contravention.
[84] The communication referred the parties to Yorke v Lucas.
If the answer to either question was no, the parties were asked to indicate whether there was any reason why relevant parts of the plaintiff's statement of claim should not be struck out pursuant to O 20 r 19(1)(c) of the Rules

Conduct giving rise to accessorial liability

In answer to the Court communication, the plaintiff pointed to various aspects of the statement of claim which it said fell (or 'arguably' fell) into the category referred to in paragraph 188(a) above.[85]
[85] Plaintiff's December submissions [15] - [16].
The defendant took no issue with these contentions.[86]
[86] Defendant's submissions dated 9 January 2024 (Defendant's January submissions).
In the circumstances, and having had regard to the plaintiff's submissions, I do not consider that the statement of claim fails to plead sufficient material facts to adequately inform the reader of the matters in question.

Intentional participation

In its response to the Court communication, the plaintiff suggested that an inference of actual knowledge would be drawn from some, or all, of the following alleged facts:[87]
(a)the defendant was a shareholder in Murray River North Pty Ltd (MRN),[88] of which TR Homes 2 was a wholly owned subsidiary;
(b)the defendant was at all material times the general manager of TR Homes 2;[89] and
(c)TR Homes 2 was the purchaser of TR Homes 1, pursuant to the TR Sale Agreement, entered into in about February 2014, by which TR Homes 1 sold 'all its business and assets'.[90]
[87] Plaintiff's December submissions [17].
[88] Statement of claim [17.2].
[89] Statement of claim [4].
[90] Statement of claim [10.1].
Further, according to the plaintiff:[91]
(a)it is reasonable to expect, in the above circumstances, that the defendant would have known of the terms and conditions of the TR Sale Agreement;
(b)it can be expected that the defendant would have known, or be taken to have known but ignored or did not act on his knowledge, of the conditions in the TR Sale Agreement concerning TR Homes 2 assuming the relevant obligations of TR Homes 1;
(c)further, given the defendant's ownership interest and position in the management of TR Homes 2, as purchaser of TR Homes 1, it could be assumed that he would have participated in the decision to offer to purchase TR Homes 1 and engaged in settling or approving the terms of the offer and of the TR Sale Agreement;
(d)it will only be through discovery that the TR Sale Agreement, and due diligence documents and reports provided to the defendant prior to execution of the TR Sale Agreement will be disclosed; and
(e)only then will the plaintiff be able to fully plead to what extent the defendant was aware that the TR Sale Agreement provided that TR Homes 2 was responsible for the Contractual Obligations prior to the TR Sale Agreement being entered into and, more specifically, whether it was liable for any warranty claims for contracts entered into prior to the TR Sale Agreement.
[91] Plaintiff's December submissions [17].
On the other hand, the defendant says:[92]
(a)there is nothing in the particulars subjoined to paragraph 12 of the statement of claim to suggest the defendant knew his conduct had the misleading effects pleaded in paragraphs 12.1 and 12.2; and
(b)if the plaintiff had wanted to plead that the defendant had knowledge derived from the TR Sale Agreement, as the plaintiff's submissions suggest, it could have done so.
[92] Defendant's January submissions [14] and [16].
I agree with the defendant.
As has been noted, assertions alleging conduct which is effectively fraud must be pleaded with the same clarity as in an action in deceit.
There are sound reasons for this, aside from considerations of notice and fairness. Allegations of dishonesty or impropriety are serious. Such allegations should not be made without a proper factual basis.[93] Indeed, the steps necessary to ensure that there is a proper factual basis for making allegations of this kind are likely to be greater than in the case of a pleading relating to more quotidian matters.[94]
[93] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [24].
[94] Metaxas v Legal Profession Complaints Committee [2020] WASCA 27 [69].
As noted earlier, the plaintiff's allegations of accessorial liability appear in paragraph 14 of the statement of claim. The particulars subjoined to that paragraph merely refer back to paragraph 12. As the defendant correctly submits, there is nothing in paragraph 12 to suggest the defendant had knowledge of the allegedly misleading effects of any of the representations.
In my view, the pleading, as currently framed, fails to identify, let alone specify with the necessary degree of specificity and particularity, any basis upon which it might arguably be inferred that the defendant had such knowledge.
For this reason, I consider those parts of the statement of claim relied upon by the plaintiff as a basis of alleging accessorial liability should be struck out pursuant to O 20 r 19(1)(c).

Section 4 of the ACL

As noted earlier, the plaintiff also seeks to rely on s 4 of the ACL.[95]
[95] Statement of claim [16].
That provision relevantly reads:
4Misleading representations with respect to future matters
(1)If:
(a)a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
(b)the person does not have reasonable grounds for making the representation;
the representation is taken, for the purposes of this Schedule, to be misleading.
(2)For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
(a)a party to the proceeding; or
(b)any other person;
the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary…
Section 51A of the TPA was the statutory antecedent of s 4.[96]
[96] Relevantly, ss 51A(1) and (2) had read: '(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. (2) For the purposes of the application of sub-section (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.'
In Hatt v Magro,[97] Steytler P referred[98] with approval to the decision of the Full Court of the Federal Court in Quinlivan v Australian Competition and Consumer Commission.[99]
[97] Hatt v Magro [2007] WASCA 124; (2007) 34 WAR 256.
[98] [39] - [42]; [46]; [48]. Wheeler JA & Pullin JA agreeing at [63] and [65], respectively.
[99] Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175; (2004) 160 FCR 1.
In Quinlivan, the Full Court had considered the interaction between s 51A and s 75B(1) of the TPA and relevantly observed as follows:[100]
[100] Being the statutory antecedents of s 4 and the definition of 'involved' in s 2 of the ACL, respectively.
... s 51A does not detract from the [principle in Yorke v Lucas] that actual knowledge of the essential elements of the contravention is required if s 75B ... is to apply. Where the contravening conduct involves misrepresentation, whether as to a future matter or not, this principle requires actual knowledge by the accessorial respondent of the falsity of the representation. This is an essential matter which must be alleged and proved ...
…the reversal of onus in s 51A(2) does not apply where accessorial liability of s 75B … is relied on.
…
… it is implicit in s 51A(1) that where a corporation does have reasonable grounds for making a representation with respect to a future matter then there will be no contravention of s 52…
…
[a]ccordingly, where s 75B ... accessorial liability is in issue in relation to a representation with respect to a future matter, the existence or otherwise of reasonable grounds will be relevant. If reasonable grounds exist, there will have been no contravention and thus no question of accessorial liability will arise. However, as against the accessorial respondent, the onus will be on the applicant to show the respondent had actual knowledge that
·the representation was made and
·it was misleading or
·the corporation had no reasonable grounds for making it …[101] (emphasis added)
[101] [10] ‑ [11], [14] ‑ [15]. See also ACCC v Universal Sports Challenge Ltd [2002] FCA 1439.

Given what was said in Hatt v Magro, among other cases, the parties were, in the Court communication, also asked whether s 4 of the ACL operated to reverse the onus in relation to a person who was knowingly concerned or involved in a corporation making a representation as to a future matter.
Properly, the plaintiff in effect conceded that the provision did not so operate and foreshadowed the deletion of paragraph 16 of the statement of claim.

Paragraph 17.1.2 of the statement of claim

In paragraph 17.1.2 of the statement of claim, the plaintiff refers to defects in the 'Rectification Works' in the context of the plaintiff having allegedly not made any demand and having otherwise forborne exercising its legal rights under the Building Contract against TR Homes 1.
However, according to paragraph 12.2.5, 'Rectification Works' are defined as works having been performed by TR Homes 2.
In the circumstances, the parties were also asked in the Court communication whether there was any reason why paragraph 17.1.2 should not be struck out pursuant to O 20 r 19(1)(c).
In answer, the plaintiff explained that paragraph 17.1.2 was pleaded in the context of the matters referred to in paragraphs 12 to 15, where allegations are made to the effect that:[102]
(a)the defendant represented on behalf of TR Homes 2 that 'the ongoing issue of rectification' would be resolved by TR Homes 2, and not TR Homes 1;
(b)TR Homes 2 then undertook the rectification works; and
(c)TR Homes 2 now takes the position it was not and has never been obliged to undertake the Contractual Obligations or, specifically, to have undertaken the rectification works.
[102] Plaintiff's December submissions [12] and [15].
According to the plaintiff, TR Homes 2 did not undertake the rectification works on its own account. Rather, it is to be assumed it did so on behalf of, or as subcontractor for, TR Homes 1.[103]
[103] Plaintiff's December submissions [12].
It is in this context that the plaintiff says it has lost the opportunity pleaded in paragraph 17 to then make a claim against TR Homes 1, that TR Homes 2, as its agent or subcontractor, delivered defective rectification works.[104]
[104] Plaintiff's December submissions [12].
According to the defendant:[105]
(a)an assertion that TR Homes 2 may have carried out the rectification works as agent for TR Homes 1 is not pleaded; and
(b)in the absence of such a pleading, paragraph 17.1.2 should be struck out on the basis that it is embarrassing.
[105] Defendant's January submissions [11].
I agree with the defendant.
I would accordingly strike out paragraph 17.1.2 pursuant to O 20 r 19(1)(c) of the Rules.

Paragraph 17.1.5 of the statement of claim

In my view, it remains necessary to consider whether the plaintiff has pleaded sufficient material facts to adequately inform the reader of the circumstances that might be said to have given rise to each of the alleged causes of action (against TR Homes 1) referred to in paragraph 17.1.5, and when each of those alleged causes of action had, in fact, expired.
On its pleaded case, the plaintiff's allegations are to the effect that it has suffered damages in consequence of those alleged causes of action having expired and, therefore, been lost.
Accordingly, if the statement of claim does not adequately plead the material facts relied upon in support of these allegations, the pleading would not fulfil one of its basic functions; namely, apprising the other party of the case it must meet.
I agree with the defendant that neither O 20 r 8(3) nor O 20 r 12 relieves the plaintiff of its obligation to plead its case properly.[106]
[106] Cf. Defendant's January submissions [8] and Plaintiff's December submissions, fn 2.
As the defendant says, it is entitled to know what rights were lost and when they expired.[107]

[107] Defendant's January submissions [6].

As the defendant, in my view, also correctly contends: [108]
(a)the statement of claim does not particularise the alleged breaches of the Building Contract; and
(b)no facts are pleaded to support a claim that the plaintiff had a right to commence proceedings in tort or under the ACL in circumstances where there is no plea of either a duty owed to the plaintiff by TR Homes 1, or of conduct by TR Homes 1 which could constitute a breach of the ACL.
[108] Defendant's January submissions [4] - [5].
For at least the above reasons, I do not accept the detailed propositions advanced by the plaintiff to the effect that it has pleaded sufficient material facts to adequately inform the reader as to how each of the forgone causes of action arose or when they had, in fact, expired.[109]
[109] Plaintiff's December submissions [6].
As it presently stands, the pleading, in my view, remains deficient in the above respects and paragraph 17.1.5 of the statement of claim should be struck out pursuant to O 20 r 19(1)(c) of the Rules on the basis that the paragraph is in the above circumstances embarrassing.

Disposition - strike out application

In the result, the defendant's application to strike out succeeds in part.

Conclusion

For the reasons set out above, the first application will be adjourned sine die, with liberty to apply, and the second application will be allowed in part.
I will hear from the parties as to appropriate orders to give effect to these reasons and on the question of costs.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Musikanth
31 JANUARY 2024