Uniflex (Australia) Pty Ltd v Hanneybel
[2000] WASC 92
•10 APRIL 2000
UNIFLEX (AUSTRALIA) PTY LTD -v- HANNEYBEL [2000] WASC 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 92 | |
| Case No: | CIV:1541/1998 | 31 MARCH 2000 | |
| Coram: | MASTER BREDMEYER | 10/04/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for discovery allowedApplication for particulars dismissed | ||
| PDF Version |
| Parties: | UNIFLEX (AUSTRALIA) PTY LTD (ACN 006 141 386) WARREN DAVID HANNEYBEL |
Catchwords: | Practice and procedure Discovery Particulars of statement of claim |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WARREN DAVID HANNEYBEL
Defendant
Catchwords:
Practice and procedure - Discovery - Particulars of statement of claim
Legislation:
Nil
Result:
Application for discovery allowed
Application for particulars dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr J A Chaney
Defendant : Mr P G Clifford
Solicitors:
Plaintiff : Karp & Steedman
Defendant : Paiker & Overmeire
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: I have before me two applications. I will consider first the plaintiff's chamber summons dated 23 December 1998 for further and better discovery. The items sought are set out in a schedule and the items now in issue are:
"5. Accounting records for the business 'Design Conditions' including without limitation cash journals, receipts, cheque stubs (and sales invoices).
…
8. Statements or duplicate statements for the St George Bank account to which the defendant deposited in paragraph 3 of the affidavit sworn by him on 26 June 1998 in compliance with paragraphs 4 and 5 of the order made by the Honourable Justice Walsh on 18 June 1998.
9. Statements or duplicate statements for the Commonwealth Bank approved deposit fund to which the defendant deposited in paragraph 5(a) of this affidavit sworn 26 June 1998."
2 According to the plaintiff's evidence, two cash cheques for $5727.34 and $8639.99 drawn by Temprite were paid to the plaintiff in October 1996 and were deposited into the account of Design Conditions, a business run by Mr and Mrs Hanneybel. These cheques are listed in schedule B to the statement of claim. The defence is that these cheques, along with all the others, were paid to the defendant for moneys due to the defendant. The defendant's affidavits expand this - the payments were for goods sold by the defendant to Temprite. It is in issue in this case, therefore, whether the goods were sold by the defendant to Temprite which would justify the payment of Temprite's cheques into the defendant's joint account. It is therefore relevant on the Peruvian Guano test to discover business documents of Design Conditions which might show the sale of goods by Design Conditions to Temprite. I do not consider that par 10 and par 11 of the defendant's affidavit of 29 January 1999 preclude discovery of these documents. The paragraphs are inconclusive. He says that the records of Design Conditions were generally kept informally and there are no records or other documents which are in any way relevant to the present proceedings. He said he had a tax audit approximately two years ago, after which documents prior to the audit were no longer required to be retained. He does not say that all documents have been destroyed and his statement on the relevance of the
(Page 4)
- documents cannot be taken as conclusive. That must be for the court to decide. I will order the defendant to give discovery of the documents listed in item 5.
3 The defendant does not dispute that the documents sought in items 8 and 9 of the schedule are discoverable. He does not have copies. The documents are not therefore in his custody or possession. He does not dispute that they are in his power as he can, on request, obtain copies from the two banks. He objects, however, to the expense of obtaining copies. The bank will impose charges and he says if he pays them that might infringe the terms of the Mareva injunction granted against him and particularly the amounts allowed thereunder for legal costs and, in any event, his legal costs have or will soon exceed the funds allowed to him under that injunction. The defendant has a duty to discover documents which are in his custody, power or possession and I consider that includes obtaining copies of those documents if they are not in his possession. The plaintiff has then to pay for copies of those documents which it requires. But the initial expense of getting the documents must be borne by the defendant. I consider the defendant should obtain those documents at his expense - whether it comes out of moneys allowed to him under either part of the Mareva injunction, or not. I will order the defendant to discover the documents requested in items 8 and 9.
4 I will now consider the defendant's chamber summons dated 25 January 2000 for further and better particulars of the plaintiff's statement of claim. I will refer to the plaintiff's answers and objections which are contained in a document dated 8 December 1999, which I will refer to as the plaintiff's answers.
5 Request 1(b) - I consider it is not relevant to know the names of the persons who interviewed the defendant, nor the full terms of the conditions upon which the defendant was originally employed I consider that evidence, not material facts, and I decline this request.
6 Request 3(a) and (b) - I consider the objections taken are good ones. The defendant does not need to know the terms and conditions and the work duties of Roa as that is not relevant to the issues on the pleading. I do not consider that the defendant needs to know the first date of her employment with the plaintiff. It is sufficient that the statement of claim says that she was employed by the plaintiff and that she joined with the defendant in starting a sheet metal fabrication business which traded under the name Kiara Metals, and that in February 1998 two cheques said to be due to the plaintiff were deposited in the account of Kiara Metals. I
(Page 5)
- note in passing that her affidavit of 28 July 1998 states that she commenced employment in approximately September 1990. I decline this request.
7 Request 5(a), (b) and (c) requests particulars of all goods alleged to have been purchased from the plaintiff by three companies, Temprite, Comfort Control and Cleanwork. I consider that particulars of the goods sold by the plaintiff to these three companies are not necessary and I decline this request. Particulars by a plaintiff are intended to inform the defendant of the nature of the case he will have to meet at trial, to prevent the defendant being taken by surprise at trial, and to enable the defendant to know what evidence he ought to be prepared with to prepare for trial. They are also designed to limit the generality of the pleadings, or of a claim, or of the evidence, to limit and define the issues to be tried, and to tie the hands of the plaintiff so that he cannot, without leave, go into matters not included. The plaintiff says that it does not need to lead evidence on long lists of goods which it sold to Temprite, Comfort Control and Cleanwork. It is sufficient if it calls, for example, a witness from Temprite to say in general terms that he ordered and was supplied goods by the plaintiff and that he paid to the plaintiff the cheques for the amounts set out in schedules A and B to the statement of claim. The defendant, by his counsel, says that at trial he will ask Temprite's witness in cross-examination, "What were the goods purchased which were paid for by the first cheque listed in schedule A ($3773)?", and if the witness then lists the goods purchased, or produces an invoice or an order form in relation to those goods, the defendant could rightly seek an adjournment as being caught by surprise. I consider that the defendant in that situation is seeking to advance his defence that the Temprite cheques were received for goods sold by the defendant, ie the defendant's own goods or goods obtained by the defendant from third parties - in any event not the plaintiff's goods. The plaintiff is not obliged to provide particulars which might assist the defendant establish his positive defence.
8 Request 7 relates to par 3B of the statement of claim which pleads:
"3B. Further, or alternatively, by reason of the matters pleaded herein the defendant owed to the plaintiff a duty of care to ensure that all cash and cheques paid by customers of the plaintiff to the plaintiff and that all cash and cheques intended by the customers of the plaintiff for payment to the plaintiff would be banked to the plaintiff's bank account."
(Page 6)
9 Request 7 asks:
"(a) all facts relied upon in alleging the intention of customers to the plaintiff with respect to the provision of cash and cheques; and
(b) the consideration passing from the plaintiff to the customers in return for the cash and cheques."
10 This is a plea of a duty of care. It is really a matter for legal argument whether this duty arises or not. It is not a plea about the intention of the customers of the plaintiff. I consider it does not need to be answered.
11 I quote request 9 and answer 9:
"9. As to paragraph 4.1 of the ASC give full particulars of the facts and matters relied upon in alleging Temprite intended cheques written to cash for a total of $160,540.88 to be for the plaintiff including by reference to the schedules marked A and B to the ASC full particulars of the consideration passing from the plaintiff to Temprite for the cash cheques.
Answer 9
In respect of each cheque referred to in schedules A and B to the amended statement of claim, Temp-Rite ordered goods from the plaintiff, and upon receiving the goods ordered delivered a cheque to the plaintiff thereby intending to pay the plaintiff for the goods delivered."
12 Paragraph 4 of the statement of claim states that on various dates between 5 January 1995 and 17 February 1998 the defendant failed to deposit to the plaintiff's bank account cash cheques for a total of $160,540.88, drawn by and intended by Temprite for the plaintiff. I consider that the answer is adequate. It is that Temprite ordered goods from the plaintiff, received goods for the plaintiff, and delivered a cheque to the plaintiff "thereby intending to pay the plaintiff for the goods delivered." The plaintiff is relying on an inference, that if you purchase goods from a store and hand a cheque to the store upon receipt of those goods, that you thereby intend to pay for them. It is an inference that follows as night follows day from common business practice. The word "thereby" is sufficient to indicate that it is an inference.
(Page 7)
13 Request 9 is really in two parts. It asks about the Temprite's intention to pay the plaintiff for the goods and I consider that the answer is adequate. Secondly it asks for full particulars of the consideration passing from the plaintiff to Temprite for the cheques. The plaintiff has failed to answer this part of the question, possibly by an oversight. But, in any event, I do not consider an answer need be given. The pleading is clear enough that the consideration for the cheques was the supply of the goods.
14 Requests 10, 12 and 15 are in the same form as request 9 and I refuse them for the same reasons.
15 Requests 17(a), 21, 23(b) and 25 are similar in form. The question asks full particulars of the goods or services sold or delivered by the plaintiff to its customer and the answer in the first four cases is "airconditioning ducting and fittings" and, in the case of question 25, is "ducting, branch takeoffs and diffuser vents". In these cases the plaintiff, contrary to its position on the three big customers mentioned above, has chosen to give some particulars of the goods purchased. Clearly the plaintiff will need to call a witness from each of these customers. The witness will say, for example in relation to par 25 of the statement of claim, that he purchased airconditioning ducting and fittings from the plaintiff to the value of $3002.72. He could be cross-examined on the nature of these goods purchased and it could be put to him that they were the defendant's goods. I consider the particulars given are adequate to inform the defendant of the plaintiff's case and the plaintiff is not required to give particulars which will help the defendant prove his case. I therefore propose to decline these four requests.
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