VELLAONG PTY LTD -v- CART NOMINEES PTY LTD & ORS [2006] WASC 243

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 243
Case No:	CIV:2594/2004	Heard:	12 SEPTEMBER 2006
Coram:	MASTER SANDERSON	Delivered:	3/11/06
No of pages:	4	Judgment Part:	1 of 1
Result:	Leave to amend refused Matter entered into CMC List Pleadings dispensed with
Category:	A
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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

CITATION : VELLAONG PTY LTD -v- CART NOMINEES PTY LTD & ORS [2006] WASC 243 CORAM : MASTER SANDERSON HEARD : 12 SEPTEMBER 2006 DELIVERED : 3 NOVEMBER 2006 FILE NO/S : CIV 2594 of 2004 BETWEEN : VELLAONG PTY LTD (ACN 095 243 600)

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.

Vellaong Pty Ltd commenced proceedings against Cart Nominees Pty Ltd and two individuals, Mr. McPhail and Mr. Davison, who were directors of Cart at the relevant time, in the Supreme Court of Western Australia. The plaintiff, Vellaong, alleges that prior to the sale of a tyre selling business, Cart made misleading and deceptive representations and failed to disclose certain information, which constituted a breach of the sale agreement. Vellaong is seeking damages for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and breach of contract. The defendants, Cart, Mr. McPhail, and Mr. Davison, are said to be accessorily liable to Vellaong under the provisions of the Trade Practices Act.

The primary legal issue in this case is whether the plaintiff, Vellaong, should be granted leave to amend its defective statement of claim. The defects in the statement of claim include non-compliance with proper pleading practice. The court must determine whether the plaintiff should be allowed to amend the statement of claim and, if so, under what conditions.

The court found that the statement of claim contained several defects that did not comply with proper pleading practice. However, considering the nature of the case and the issues involved, the court decided that the proper course of action was to admit the matter into the Commercial and Managed Cases List and dispense with pleadings. The court identified six main issues that would be addressed at trial, including whether representations were made by Cart, whether Vellaong relied on those representations, whether the representations were misleading or deceptive, whether Vellaong suffered loss and damage as a result, and whether the defendants are accessorily liable under the Trade Practices Act and whether Cart breached the contract for the sale of the business. The court concluded that the matter should proceed to trial without further amendments to the statement of claim.

The final orders made by the court were that the matter be entered into the Commercial and Managed Cases List with Master Sanderson as the Case Manager, leave to amend the statement of claim be refused, pleadings be dispensed with, the matter be adjourned to 21 November 2006 for further directions, and the costs of the application be reserved.

Vellaong Pty Ltd v Cart Nominees Pty Ltd

VELLAONG PTY LTD -v- CART NOMINEES PTY LTD & ORS [2006] WASC 243

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