TVW Enterprises Ltd v Crewe & Son Pty Ltd

[1987] FCA 178

PRACTICE AND PROCEDURE - pleadlng - trade practices - mlsleadlng and deceptive conduct - representatlon of general ability to provide servlces - pleadlng that representation falsifled by failure to perform partlcular contract - no logical connectlon - paragraph struck out - tendency to p r e ~ u d ~ c e embarrass or delay fair trial of actlon.

Federal Court Rules 0.11

Trade Practices Act 1 9 7 4 s.52

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H 1 9 7 6 Nominees Pty Ltd v Gall1 ( 1 9 7 9 ) 4 0 FLR 2 4 2

Bruce v Odhams Press Limited ( 1 9 3 6 ) 1 KB 6 9 7

TVW ENTERPRISES LIMITED V CREWE AND SON PTY LIMITED

WAG NO. 9 6 Of 1 9 8 6

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FRENCH J.

1 6 MARCH	1 9 8 7
PERTH

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IN THE FEDERAL COURT

OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	1
GENERAL DIVISION	) NO. WAG 9 6 OF 1986

B E T W E E N : TVW ENTERPRISES LIMITED

Applicant

and

CREWE AND SON PTY LIMITED

Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	16 March 1987
WHERE MADE:	Perth

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THE COURT	ORDERS THAT:
1.	As to paragraph 15 the motion is dismlssed.
2.	Paragraph 16 of the statement of claim is struck out.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

I	IN THE FEDERAL COURT
!	OF AUSTRALIA 1
I
WESTERN AUSTRALIA 1
DISTRICT REGISTRY 1
GENERAL DIVISION ) NO. WAG 96 OF 1986
B E T W E E N : TVW ENTERPRISES LIMITED

Applicant

and

CREWE AND SON PTY LIMITED

Respondent

CORAM: FRENCH J.

16 MARCH 1987

EX TEMPORE REASONS FOR JUDGMENT

This is an application under 0.11 sub-rules 16(a) and

(b) of the Federal Court Rules seeking to strike o u t paragraphs 15, 16, 23, 24 and 25 of the amended statement of claim flled by

the applicant on 16 October 1986. The respondent on the return of

the motion for hearing has indicated that it does not wish to

pursue the applicatlon In respect of paragraphs 23, 24 and 25, but

does maintain it In respect of paragraphs 15 and 16.

The application arises out of the design, manufacture

and installation of a paper reel tracking system to be constructed as part of an overall printing plant for the production of a newspaper known as "The Western Mail", published in the Perth metropolitan area by the applicant.

The respondent, said to be a trading corporation, is

alleged to carry on buslness as a structural and general engineer

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2.

! and was invited pursuant to a specificatlon, partly in writing and

partly oral, between December 1982 and February 1983, to submit

quotations for the manufacture and installation	of the tracking
system,

The statement of claim identifies the specifications by

reference to certain documents and oral conversations between a Mr

Bicknell and a Mr Holden for the applicant on the one hand, and Mr

Crewe for the respondent on the other.

It 1s pleaded in paragraph 5 of the amended statement of

claim that the respondent by its written quotation dated 10

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~ January 1983 represented to TVW that:-

"(a) it had the ability to manufacture and install the

Reel System to meet TVW's specificatlon, and

(b) the Reel System would be an amalgamation of design

alternatives contained within the TVW specification

being systems D and F shown on the	pamphlet
entitled "The Only Reel Solution"."

and which, I interpolate, was one of the documents said to

comprise part of the written specification.

It is also said in paragraph 6, that by that quotatlon,

Crewe impliedly represented to TVN that:-

(a) a design for the Reel System comprlslng an

amalgam of design alternatives contained in the TVW speclflcation was suitable and effective and was capable of meeting TVW's design speciflcations; and

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(b) Crewe had the expertlse and ability sufficient to

carry out the deslgn, manufacture and installation

of the Reel System.

The statement of claim goes on to allege that Crewe

submitted a revised quotatlon to TVW on 19 September 1983 and that certain further representatlons were made by that revised quotatlon, namely:-

"(a) that it would deslgn the Reel System; and

(b) that It would manufacture, install and commission

the Reel System.. . ."

Paragraph 9 of the amended statement of claim pleads the

renewal on the part of Crewe of the implied representations

referred to In paragraph 6 arising out of the submission of the

revised quotation. Particulars of the basis upon which the

representations are to be implied	are set out in paragraph 9 as
follows:-

"(a) the fact that Crewe submitted the Revised

Quotatlon;

(b)	the fact that Crewe held themselves out by such submission as being capable of designing a system
appropriate to meet the specifications for TVW;

(c) general law from the circumstances surrounding the

making of the revised quotation."

Subsequently, accordlng to paragraph 10 TVW accepted the

revised quotation and thus was formed a contract for the design,

manufacture and installatlon of the reel system. Various

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I	expressed written terms of the contract are pleaded In paragraph
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11, and certain lmplled terms are pleaded in paragraph 12. In
paragraph 13 the following pleading is made:-

"TVW will say at trlal that the representations referred

to in paragraphs 5(a), 6 and 9 hereof were at law

continuing representatlons and that by reason of the

fact that the Revlsed Quotation was not withdrawn by

Crewe between 19 September 1983 and the acceptance of

the revlsed quotatlon by TVW on 23 September 1983

referred to in paragraph 10 hereof, the representations

continued. for the period 19 September 1983 to 23

September 1983 ."

i It 1s alleged in paragraph 14 that the representations

i	and each of them was made by Crewe in the course of trade or
i	commerce withln the Commonwealth of Australia and that each of them was conduct ln the meaning of that expression in s.52 of the
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Trade Practices Act 1974.
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I The following paragraph, paragraph 15, w ich 1s the

I	sub~ect	of Crewe's motion, is pleaded as follows:-
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"As at the date hereof the Reel System installed by

Crewe at TVW's prlnting presses is and was not in

compliance wlth the Contract in that it fails to meet

TVW' S speclfication and is unable to be commissioned to

the satisfactlon of TVW."

Particulars of the allegation are then set out by

reference to various deficiencies in the design and operation of

the system and evidenced by repetitive failures of conveyor

I trolleys for a number of reasons which are also particularised.

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I 5.

'lhe partlculars of paragraph 15 do not relate any of the deflclencies to any particular elements in	or terms of the TVW
speclflcation.

Crewe complains that although paragraph 1 5 may on its

face dlsclose a cause of action in the sense that it alleges

non-compllance with the contract by fallure to meet TVW's

specification, the pleading nevertheless has a tendency to cause

pre~udice, embarrassment or delay in the proceeding in that it

does not Indicate with any adequate partlcularity the way In which

the failure alleged has occurred - that is to say, it does not

relate the particular	deflciencles alleged to the terms of the TVW
specification.

The requirements of 0.11 of the Federal Court Rules as

set out in r.2 provide:-

"Subject to these rules,

(a) a pleading of a party shall contaln, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which

those facts are to be proved."

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It is Important to maintaln a proper distinction between

material facts and partlculars. The distinction was addressed by Northrop J. in hls declsion in H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242. when at 246 he said:-

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l "In order to dlsclose a reasonable cause of actlon, a statement of claim must contain statements of material facts which support the claims made. Partlculars are not statements of material facts: particulars perform a different purpose."

Referrlng to the judgment of Lord Justlce Scott in Bruce v Odhams Press Limited ( 1 9 3 6 ) 1 KB 6 9 7 , his Honour went on to make

the point:-

i	".....(particulars) are not to be used to fill gaps in a
I	demurrable statement of claim - gaps whlch ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's
I	cause of action".

i If the statement of materlal facts in the pleading is

deficient, that 1s a deficiency which cannot be remedied by the

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provislon of particulars which include those material facts.

i Questions of degree are involved in determining whether

i	or not, In a pleading	that sets up the relevant material	facts,
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the statement of those materlal facts is nevertheless so

inadequate or so bare that the party who has to file a defence to

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I	it does not know ln truth the case ~t has to meet, and in
I	determlning whether o r not in such a case the pleading has a tendency to embarrass, prejudice or delay the falr trial of the action.

Making the judgment as best I can, in my opinion

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paragraph 15 as pleaded does not fall into the category of a

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pleadlng that wvuld have a tendency to prejudice, embarrass vr

delay the fair trial of the actlon. It, on the other hand, would

certainly be a pleading which standlng by itself, would justlfy

the delivery of further and better partlculars	of the material
facts alleged ~n it Insofar as they relate	to the fact of

non-compliance with TVW's speclfication, and indeed In thls case, the paucity of the pleadlng would justify the delivery of such

I	partlculars before the respondent is required to file a defence.
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l ! I do not regard the partlculars that re at present

incorporated in the statement of clalm as adequately disclosing the way in which the alleged faulty installation of the printlng presses has failed to meet or comply with TVW's speclflcatlon. In

the result, so far as the respondent's motion is concerned, I will not accede to a motlon to strike out paragraph 1 5 . I will,

however, make, after hearing further- from the parties, an

appropriate order as to the delivery of further and better

particulars of the allegatlons contained in that paragraph.

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I Turning now to paragraph 16 of the statement of claim,

that pleads as follows:-

"By reason of the matters referred to in paragraph 15

hereof, the representations referred to In paragraphs

5(a), 6 and 9 hereof were and each of them was false and

misleading or likely to mislead and deceive TVW rn

considering whether or not to enter into a contract or

agreement with Crewe."

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It 1s Important in conslderlng that paragraph, which 1s

also the sub~ect of the respondent's attack, to return to the

nature of the representations alleged flrst In paragraph 5(a), and

that was an allegatlon of a representatlon on the part of Crewe of a general ability to manufacture and install the	reel system to
meet TVW's speciflcation.

In my opinion, Insofar as paragraph 16 relies upon the fallure of performance in paragraph 15 to falsify the

representatlon made in paragraph 5(a) of the statement of claim, it does not plead a material fact with a sufflcient loglcal connectlon between the allegation of the falsity of the representation and the particular event that is referred to - that

is, non-compliance with the specification.

I suggested in the course of argument to Mr Bennett,

that by way of simple example, if a person offers to paint my house and says he has the abllity to do so, the fact that on the day he does a bad job does not mean I can infer that as a general matter, he lacks the ability to paint. Perhaps it is analogous to the propositlon from the law of defamation that a statement that a person is a liar is not justified by showing that the person has

told a lie on one occasion. On that basls, In my opinion, so far as the reference to paragraph 5 ( a) is concerned, paragraph 16 is faulty.

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9.

I n r e l a t i o n t o p a r a g r a p h 6 , s u b - p a r a . 6 ( b ) a l l e g e s a

r e p r e s e n t a t i o n o f g e n e r a l e x p e r t l s e a n d a b i l i t y o n t h e p a r t of

Crewe to c a r r y o u t t h e d e s l g n , m a n u f a c t u r e and l n s t a l l a t l o n o f t h e

r e e l s y s t e m , a n d t o t h e e x t e n t t h a t t h a t 1s l n c o r p o r a t e d i n

p a r a g r a p h 1 6 , t h e same d e f i c i e n c y a r i s e s .

So f a r a s p a r a g r a p h 9 is c o n c e r n e d , t h a t s i m p l y i n v o l v e s

a r e n e w a l o f t h e i m p l l e d r e p r e s e n t a t i o n s r e f e r r e d t o i n p a r a g r a p h

6 , a n d a g a i n p l c k s u p s u b - p a r a . 6 ( b ) .

S u b - p a r a g r a p h 6 ( a ) may be a somewhat d i f f e r e n t c a t e g o r y ,

f o r i t a l l e g e s a n i m p l i e d r e p r e s e n t a t l o n t h a t t h e d e s i g n w a s

s u i t a b l e a n d e f f e c t l v e . On t h e o t h e r hand , i t does n o t a p p e a r

i m m e d i a t e l y f r o m t h e p a r t i c u l a r s of non-compl l ance tha t it was t h e

d e s i g n i t s e l f t h a t was t h e c a u s e o f t h e d i f f i c u l t y , b u t I would

n o t d i s p o s e o f p a r a g r a p h 1 6 o n t h a t b a s i s .

I n c o n c l u s i o n , so f a r as p a r a g r a p h 1 6 is c o n c e r n e d , I am

o f t h e o p i n i o n t h a t h a v i n g regard t o t h e l a c k of a n y p r o p e r

l o g i c a l c o n n e c t i o n be tween t h e matters r e f e r r e d to t h e r e i n a n d t h e

r e p r e s e n t a t i o n s pleaded s u b - p a r a g r a p h s i n 5 ( a ) a n d 6 ( b ) a n d

p a r a g r a p h 9 i n s o f a r a s i t p icks up and repeats s u b - p a r a g r a p h 6 ( b ) ,

p a r a g r a p h 1 6 does a t l ea s t have a t e n d e n c y t o e m b a r r a s s , p r e j u d i c e

or d e l a y t h e f a i r t r i a l o f t h e a c t i o n , a n d o u g h t to b e s t r u c k o u t .

s a y i n g I n t h a t , of c o u r s e , I do n o t s h u t o u t

t h e p o s s i b l l l t y t h a t h e f a l l u r e , 1f i t c a n be e s t a b l i s h e d , t o

10.

perEorm t h e c o n t r a c t a s a l l e g e d , w o u l d be e v i d e n c e of a l a c k of

t h e r e l e v a n t a n d r e p r e s e n t e d a b i l l t y , b u t m a t e r i a l f a c t s a n d

e v i d e n c e are d i f f e r e n t t h i n g s .

T h e u p s h o t of a l l of t h a t i s t h a t t h e mot ion i s

d i s m l s s e d so f a r a s p a r a g r a p h 15 is c o n c e r n e d , b u t I w l l l allow

i t so f a r as p a r a g r a p h 1 6 1s c o n c e r n e d .

I h e r e b y c e r t i f y t h a t t h i s a n d t h e

preceding n l n e ( 9 ) p a g e s are a t r u e

copy of the Reasons f o r Judgment

h e r e i n of	h i s Honour Mr	Just ice
French .

Date :

Counse l :

. for t h e A p p l i c a n t : Mr M. B e n n e t t

i n s t r u c t e d b y Messrs. Keall Br insden

. f o r t h e R e s p o n d e n t : Mr Templeman

i n s t r u c t e d by Mossenson S z k l a r z & C o .

Da te o f Hea r ing : 1 6 March 1987

Date of Judgment: 16 March 1987

.

PRACTICE AND PROCEDURE - pleading - trade practices - misleading

and deceptive conduct - representation of general ability to

provide services - pleading that representation falslfled by failure to perform particular contract - no logical connection - paragraph struck out - tendency to prejudlce embarrass or delay fair trial of action.

Federal Court Rules	0.11
Trade Practices Act	1974 s.52

H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 2 4 2

Bruce v Odhams Press Llmited (1936) 1 KB 697

TVW ENTERPRISES LIMITED V CREWE	AND SON PTY LIMITED
WAG NO. 96 Of 1986
FRENCH J.
16 MARCH 1987

I	PERTH
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T H E I N F D E R A L C O U R T 1

OF A U S T R A L I A )

WESTERN AUSTRALIA 1

D I S T R I C T	R E G I S T R Y	)
G E N E R A L	D I V I S I O N	) NAG NO. 96 O F 1986

B E T W E E N :	TVW	E N T E R P R I S E S	L I M I T E D
Appl icant
and

CREWE AND SON PTY L I M I T E D

R e s p o n d e n t s

M I N U T E O F O R D E R

I JUDGE MAKING ORDER: FRENCH J.

! DATE OF ORDER: 1 6 March 1987

WHERE MADE : P e r t h

THE COURT ORDERS THAT:

1. As t o paragraph 15 t h e m o t i o n is dismissed.

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I	2.	Paragraph	16 of	t h e statement of	claim is s t r u c k
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I	o u t .

Note: Sett lement and e n t r y of orders is d e a l t

w i t h i n O r d e r 36 of t h e Federal C o u r t R u l e s

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IN THE FEDERAL COURT	)
OF AUSTRALIA	)

WESTERN AUSTRALIA 1

DISTRICT REGISTRY )

GENERAL DIVISION 1 NO. WAG 96 OF 1986

B E T W E E N : ENTERPRISES LIMITED TVW

Appllcant

and

CREWE AND SON PTY LIMITED

Respondent

CORAM :

FRENCH J.

16 MARCH 1987

EX TEMPORE REASONS FOR JUDGMENT

This 1s an application under 0.11 sub-rules 16(a) and (b) of the Federal Court Rules seeklng to strike out paragraphs 15, 16, 23, 24 and 25 of the amended statement of claim filed by

the applicant on 16 October 1986. The respondent on the return of

the motion for hearing has indicated that it does not wish to

pursue the appllcation in respect of paragraphs 23, 24 and 25, but

does malntaln it in respect of paragraphs 1 5 and 16.

The application arises out of the design, manufacture

and installation of a paper reel tracking system to be constructed

as part of an overall prlnting plant for the production of a newspaper known as "The Western Mail", published in the Perth metropolitan area by the applicant.

The respondent, said to be a trading corporation, is

alleged to carry on business as a structural and general engineer

.

2 .

and was invited pursuant to a speclticatzon, partly in wrlting and partly oral, between December 1 9 8 2 and February 1 9 8 3 , to submit quotations for the manufacture and installation of the tracklng system.

The statement of claim Identifies the specifications by

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reference to certain documents and oral conversations between a Mr Bicknell and a Mr Holden for the applicant on the one hand, and Mr

~	Crewe for the respondent on the other.
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It is pleaded in paragraph 5 of the amended statement of

claim that the respondent by its written quotation dated 10

January 1 9 8 3 represented to TVW that:-

"(a) it had the ability to manufacture and install the Reel System to meet TVW's specification, and

(b)	the Reel System would be an amalgamation of design alternatives contained within the TVW specification
being systems D and F shown on the pamphlet
entitled "The Only Reel Solution" ."

and which, I interpolate, was one of the documents said to

comprise part of the written specification.

It is also said in paragraph 6, that by that quotation, Crewe implledly represented to TVW that:- .-

(a) a design for the Reel System comprising an

amalgam of design alternatives contained in the TVW specification was suitable and effectlve and was capable of meeting TVw's design specifications: and

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(b) Crewe had the expertise and ability sufficient to carry out the design, manufacture and installation of the Reel System.

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!	The statement of claim goes on to allege that Crewe
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i	submitted a revised quotatlon to TVW on 19 September 1983 and that
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I	certain further epresentations were made by that revised
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i	quotation, namely:-
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“(a) that it would design the Reel System: and

(b) that it would manufacture, install and commission the Reel System.. . .”

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Paragraph 9 of the amended statement of claim pleads the renewal on the part of Crewe of the implied representations

referred to in paragraph 6 arising out of the submission of the

I	revised quotation. Particulars of the basis upon which the
representations are to be implied are set out in paragraph 9 as
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follows:-

I “(a) the fact that Crewe submitted the Revised

Quotation;

i (b) the fact that Crewe held themselves out by such

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submission as being capable of designing a system

appropriate to meet the specifications for TVW;

(c) general law from the circumstances surrounding the making of the revised quotation.“

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!	Subsequently, according to paragraph 10 TVW accepted the revised quotation and thus was formed a contract for the design, manufacture and installation of the reel system. Various
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expressed wrltten terms of the contract are plcadcd in paragraph

11, and certain implled terms are pleaded in paragraph 12. In

paragraph 13 the following pleading is made:-

"TVW will say at trial that the representations referred

to in paragraphs 5(a), 6 and 9 hereof were at law

continuing representations and that by reason of the fact that the Revised Quotation was not withdrawn by Crewe between 19 September 1983 and the acceptance of

the revised quotation by TVW on 2 3 September 1983

referred to in paragraph 10 hereof, the representations

continued for the period 19 September 1983 to 23

September 1983 ."

It is alleged in paragraph 14 that the representations and each of them was made by Crewe in the course of trade or commerce within the Commonwealth of Australia and that each of them was c=ndilct in the meaning of that expression in s.52 of the Trade Practices Act 1974.

The following paragraph, paragraph 15, which is the

subject of Crewe's motion, is pleaded as follows:-

"As at the date hereof the Reel System Installed by

Crewe at TVW's printing presses is and was not in compliance with the Contract in that it fails to meet TVW's specification and is unable to be commissioned to the satisfaction of TVW."

Particulars of the allegation are then set out by

reference to various deficiencies In the design and operation of the system and evidenced by repetitive failures of conveyor

trolleys for a number of reasons which are also particularised.

5.

The partlculars of paragraph 15 do not relate any of the deficiencies to any particular elements In or terms of the TVW specification.

Crewe complalns that although paragraph 15 may on its

face disclose a cause of action in the sense that it alleges

non-compliance with the contract by failure to meet TVW's

specification, the pleading nevertheless has a tendency to cause

pre~udice, embarrassment or delay in the proceeding in that it does not indicate with any adequate particularity the way in which the failure alleged has occurred - that is to say, it does not relate the particular deficiencies alleged to the terms of the TVlJ specification.

The requirements of 0.11 of the Federal Court Rules as

set out In r.2 provide:-

"Subject to these rules,

(a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which

those facts are to be proved."

It is Important to maintain a proper distinction between

material facts and partlculars. The distinction was addressed by Northrop J. in hls decision in H 1976 Nominees Pty Ltd v Galli

(1979) 4 0 FLR 242, when at 246 he said:-

6.

"In order to disclose a reasonable cause of action, a statement of claim must contain statements of material

facts which support the claims made. Particulars are

not statements of material facts; particulars perform a

different purpose."

Referrlng to the judgment of Lord Justice Scott In Bruce v Odhams Press Limited (1936) 1 KB 697, his Honour went on to make

the point:-

". . . . . (particulars) are not to be used to fill gaps in a

demurrable statement of claim - gaps which ought to have

been filled by appropriate statements of the various

material facts which together constitute	the plaintiff's
cause of actlon".

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I the statement of material If facts in the pleadlng is

deficient, that is a deficiency-whlch cannot be remedied by the

provision of particulars which include those material facts.

Questions of degree are involved in determining whether or not, in a pleading that sets up the relevant material facts,

the statement of those material facts is nevertheless so

inadequate or so bare that the party who has to file a defence to

it does not know in truth the case ~t has to meet, and in

determining whether or not in such a case the pleading has a

tendency to embarrass, prejudice or delay the fair trial of the

action.

M aking th e ~udgment as best I can, in my opinion

paragraph 15 as pleaded does not fall into the category of a

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p l e a d i n g t h a t w o u l d h a v e a t e n d e n c y t o p r e ~ u d l c e , embarrass vr

d e l a y t h e f a i r t r ia l o f t h e a c t i o n . I t , o n t h e o t h e r h a n d , w o u l d

c e r t a l n l y b e a p l e a d i n g w h i c h s t a n d i n g b y I t s e l f , w o u l d j u s t i f y

t h e d e l i v e r y of f u r t h e r and b e t t e r p a r t i c u l a r s o f t h e materlal

f a c t s a l l e g e d i n i t i n s o f a r a s t h e y r e l a t e t o t h e f a c t o f

non-compliance w i t h TVW's s p e c i f i c a t i o n , a n d I n d e e d i n t h l s case,

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t h e p a u c i t y o f t h e p l e a d i n g w o u l d j u s t i f y t h e d e l i v e r y of s u c h

p a r t i c u l a r s b e f o r e t h e r e s p o n d e n t is r e q u i r e d t o f i l e a d e f e n c e .

I d o n o t regard t h e p a r t i c u l a r s t h a t a r e a t p r e s e n t

l n c o r p o r a t e d i n t h e s t a t e m e n t o f c l a i m a s a d e q u a t e l y d i s c l o s i n g

t h e way i n w h i c h t h e a l l e g e d f a u l t y i n s t a l l a t i o n of t h e p r i n t i n g

p r e s s e s h a s f a i l e d t o meet or comply w i th TVW's spec i f ica t ion . I n

t h e r e s u l t , so f a r a s t h e r e s p o n d e n t ' s motlor! is cnncerned, I rill

n o t a c c e d e t o a m o t i o n t o s t r i k e o u t p a r a g r a p h 1 5 . I w i l l ,

however , make , a f t e r h e a r i n g f u r t h e r f r o m t h e p a r t i e s , an

a p p r o p r i a t e o r d e r a s t o t h e d e l i v e r y o f u r t h e r a n d b e t t e r

p a r t i c u l a r s of t h e a l l e g a t i o n s c o n t a i n e d i n t h a t p a r a g r a p h .

T u r n i n g now to p a r a g r a p h 16 of t h e statement of claim,

t h a t p leads a s follows:-

"By reason of t h e matters r e f e r r e d t o i n p a r a g r a p h 1 5

h e r e o f , t h e r e p r e s e n t a t i o n s r e f e r r e d t o i n p a r a g r a p h s

5 ( a ) , 6 and 9 h e r e o f were a n d e a c h of them was f a l s e a n d

m i s l e a d i n g or l i k e l y t o mislead a n d d e c e i v e TVW i n

c o n s i d e r i n g w h e t h e r or n o t t o e n t e r i n t o a c o n t r a c t or

a g r e e m e n t w i t h Crewe ."

I

. .

8 .

I t is I m p o r t a n t i n c o n s i d e r i n g t h a t p a r a g r a p h , wh lch i s

I

a l s o t h e s u b j e c t of t h e r e s p o n d e n t ' s a t t a c k , t o r e t u r n t o t h e

I

n a t u r e of t h e r e p r e s e n t a t l o n s alleged f irst i n p a r a g r a p h 5 ( a ) , a n d

t h a t w a s a n a l l e g a t i o n of a r e p r e s e n t a t i o n o n t h e p a r t of Crewe o f

I

a g e n e r a l a b i l i t y t o m a n u f a c t u r e a n d i n s t a l l t h e reel s y s t e m t o

meet TVW's s p e c i f i c a t i o n .

I n my o p i n i o n , i n s o f a r a s p a r a g r a p h 1 6 re l ies u p o n t h e

!

1	,	f a l l u r e	p e r f o r m a n c e	o f	p a r a g r a p h	i n	15	t o	f a l s i f y	the
I ,

r e p r e s e n t a t i o n made i n p a r a g r a p h 5 ( a ) of t h e s t a t e m e n t of claim,

i

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~t d o e s n o t p l e a d a m a t e r i a l f a c t w i t h a s u f f i c i e n t l o g l c a l

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c o n n e c t i o n b e t w e e n t h e a l l e g a t i o n of t h e f a l s i t y t h e o f

i

i r e p r e s e n t a t i o n a n d t h e p a r t i c u l a r e v e n t t h a t is r e f e r r e d t o - t h a t

i	is,	n o n - c o m p l i a n c e	w i t h	t h e	s p e c i f i c a t i o n .
I
i
I

I s u g g e s t e d i n t h e c o u r s e of a rgumen t t o Mr B e n n e t t ,

t h a t by way of s imple e x a m p l e , i f a p e r s o n o f f e r s t o p a i n t my

h o u s e a n d s a y s h e h a s t h e a b i l i t y t o d o so, t h e f ac t t h a t on t h e

d a y h e d o e s a b a d j o b d o e s n o t m e a n I can i n f e r t h a t a s a g e n e r a l

l i

! matter, he l a c k s t h e a b i l i t y t o p a i n t . P e r h a p s it is analogous to

! t h e p r o p o s i t i o n f r o m t h e law of d e f a m a t i o n t h a t a s t a t e m e n t t h a t a

p e r s o n is a l l a r is n o t j u s t i f i e d b y s h o w i n g t h a t t h e p e r s o n h a s

!

t o l d a l i e o n o n e o c c a s i o n . On t h a t b a s i s , i n my o p i n i o n , so f a r

l

I

a s t h e reference to p a r a g r a p h S ( a ) is c o n c e r n e d , p a r a g r a p h 1 6 is

i

!	f a u l t y .
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L

9.

I n r e l a t l o n t o p a r a g r a p h 6 , s u b - p a r a . 6 ( b ) a l leges a

r e p r e s e n t a t i o n o f genera l e x p e r t i s e a n d a b i l i t y on t h e p a r t o f

Crewe to c a r r y ou t t h e d e s i g n , m a n u f a c t u r e a n d i n s t a l l a t l o n of t h e

r e e l s y s t e m , a n d t o t h e e x t e n t t h a t t h a t i s i n c o r p o r a t e d i n

p a r a g r a p h 1 6 , t h e same d e f i c i e n c y a r i s e s .

So f a r a s p a r a g r a p h 9 is c o n c e r n e d , t h a t s i m p l y i n v o l v e s

a renewal o f t h e i m p l i e d r e p r e s e n t a t l o n s r e f e r r e d t o I n p a r a g r a p h

6 , and aga in p i c k s u p s u b - p a r a . 6 ( b ) .

S u b - p a r a g r a p h 6 ( a ) may b e a s o m e w h a t d i f f e r e n t c a t e g o r y ,

f o r i t a l l e g e s a n l m p l i e d r e p r e s e n t a t i o n t h a t t h e d e s i g n was

s u i t a b l e a n d e f f e c t i v e . On t h e o ther hand , i t d o e s n o t a p p e a r

i m m e d i a t e l y f r o m t h e p a r t i c u l a r s of n o n - c o m p l i a n c e t h a t i t was thc

d e s i g n i t s e l f t h a t was t h e cause o f t h e d i f f i c u l t y , b u t I would

n o t d i s p o s e of p a r a g r a p h 1 6 o n t h a t b a s l s .

I n c o n c l u s i o n , so f a r a s p a r a g r a p h 1 6 is concerned, I am

o f t h e o p i n i o n t h a t h a v i n g r e g a r d t o t h e l a c k of a n y p r o p e r

l o g i c a l c o n n e c t i o n b e t w e e n t h e matters r e f e r r e d to t h e r e i n a n d t h e

r e p r e s e n t a t i o n s p l e a d e d s u b - p a r a g r a p h s i n 5 ( a ) a n d 6 ( b ) a n d

p a r a g r a p h 9 insofar a s i t p i c k s up and repeats s u b - p a r a g r a p h 6 ( b ) ,

p a r a g r a p h 1 6 d o e s a t least have a t e n d e n c y t o embarrass, p r e j u d i c e

or d e l a y t h e f a i r t r ia l of t h e ac t ion , a n d o u g h t t o be s t r u c k o u t .

I n saying t h a t , o f course, I n o t s h u t d o u t

t h e p o s s i b i l i t y t h a t h e f a l l u r e , i f i t c a n b e s t a b l i s h e d , t o

* . 1

10.

perform t h e c o n t r a c t as a l l eged , would be e v i d e n c e O E a l a c k of

t h e r e l e v a n t a n d r e p r e s e n t e d a b i l l t y , b u t m a t e r i a l f a c t s a n d

e v l d e n c e a re d i f f e r e n t t h l n g s .

T h e u p s h o t of a l l o f t h a t i s t h a t t h e m o t i o n is

d i s m l s s e d so f a r a s p a r a g r a p h 1 5 is c o n c e r n e d , b u t I w i l l al low

i t so f a r a s p a r a g r a p h 1 6 1s c o n c e r n e d .

I h e r e b y c e r t i f y t h a t t h i s a n d t h e

p r e c e d i n g n i n e ( 9 ) p a g e s are a t r u e

c o p y o f t h e R e a s o n s for Judgment

h e r e i n of	h i s H O n O U r	:lr	Jus t i ce
French .

Counse l :

. f o r t h e A p p l l c a n t : Mr M . B e n n e t t

i n s t r u c t e d b y Messrs. Keall B r i n s d e n

I

. f o r t h e R e s p o n d e n t : M r Templeman

I

i n s t r u c t e d b y Mossenson Szklarz & Co.

i Date of H e a r i n g : 1 6 March 1987

Date of Judgment : 1 6 March 1987

;