Vellaong Pty Ltd v Cart Nominees Pty Ltd
[2006] WASC 243
VELLAONG PTY LTD -v- CART NOMINEES PTY LTD & ORS [2006] WASC 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 243 | |
| Case No: | CIV:2594/2004 | 12 SEPTEMBER 2006 | |
| Coram: | MASTER SANDERSON | 3/11/06 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend refused Matter entered into CMC List Pleadings dispensed with | ||
| A | |||
| PDF Version |
| Parties: | VELLAONG PTY LTD (ACN 095 243 600) CART NOMINEES PTY LTD (ACN 008 923 233) DONALD MCPHAIL DONALD DAVISON |
Catchwords: | Practice and procedure Application to amend statement of claim into a form that is defective Order dispensing with pleadings |
Legislation: | Trade Practices Act 1974 (Cth) |
Case References: | Nil Chesson v Green [2002] WASCA 67 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 Melville v East End Holdings Inc [2003] WASCA 133 Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 Samuels v Linzi Dressers Ltd [1981] QB 115 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CART NOMINEES PTY LTD (ACN 008 923 233)
First Defendant
DONALD MCPHAIL
DONALD DAVISON
Second Defendants
Catchwords:
Practice and procedure - Application to amend statement of claim into a form that is defective - Order dispensing with pleadings
Legislation:
Trade Practices Act 1974 (Cth)
(Page 2)
Result:
Leave to amend refused
Matter entered into CMC List
Pleadings dispensed with
Category: A
Representation:
Counsel:
Plaintiff : Mr P Mendelow
First Defendant : Mr S G Leslie
Second Defendants : Mr S G Leslie
Solicitors:
Plaintiff : Taylor Smart
First Defendant : Wilson & Atkinson
Second Defendants : Wilson & Atkinson
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Chesson v Green [2002] WASCA 67
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Melville v East End Holdings Inc [2003] WASCA 133
Re Jokai Tea Holdings Ltd [1993] 1 All ER 630
Samuels v Linzi Dressers Ltd [1981] QB 115
(Page 3)
1 MASTER SANDERSON: In late 2000, Vellaong Pty Ltd ("Vellaong") purchased a tyre selling business from Cart Nominees Pty Ltd ("Cart"). The parties entered into a written agreement. Vellaong says that prior to entering into the agreement, Cart made misleading and deceptive statements. Vellaong also claims that in failing to disclose certain information Cart was in breach of the sale agreement.
2 Vellaong is seeking damages from Cart claiming misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and breach of contract. Mr McPhail and Mr Davison were directors of Cart at the relevant time. They are said to be accessorily liable to Vellaong under the provisions of the Trade Practices Act.
3 This application is effectively an application for leave to permit Vellaong to amend its statement of claim in terms of a minute filed 8 September 2006. The issue is whether leave ought be granted.
4 Parts of the statement of claim are defective. They do not comply with proper pleading practice. If this case were to be run on pleadings, I would not grant leave to Vellaong to amend in terms of the minute. However, I am satisfied that the proper course is to admit this matter to the Commercial and Managed Cases List and dispense with pleadings.
5 A reading of the minute discloses that there are six issues in this case. They are:
• Were representations made by Cart to Vellaong in relation to the purchase of the tyre business?
• Did Vellaong rely on these representations when it purchased the tyre business?
• Were the representations misleading or deceptive or likely to mislead and deceive?
• Did Vellaong suffer loss and damage as a result?
• Are Mr McPhail and Mr Davison accessorily liable to Vellaong for the losses it suffered?
• Did Cart breach the contract for the sale of the business?
6 It may be the defendants will want to add further issues. They should be at liberty to do so. The issues I have identified arise directly out of the minute. They are not set in stone and can be modified at any stage
(Page 4)
- prior to trial. But by the time the trial commences, each of the issues to be determined will be clearly set out either because they have been agreed by the parties or because after argument I have determined what the issues are. At trial evidence will be confined to those issues and I will determine them point by point.
7 The orders that I will make are:
(1) This matter be entered into the Commercial and Managed Cases List with the Case Manager being Master Sanderson.
(2) Leave to amend the statement of claim in terms of the minute is refused.
(3) Pleadings are dispensed with.
(4) The matter is adjourned to 21 November 2006 at 9.15 am for further directions.
(5) Costs of the application reserved.
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