Visintin v Higgins

[2010] WADC 164

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   VISINTIN -v- HIGGINS [2010] WADC 164

CORAM:   STAUDE DCJ

HEARD:   20 OCTOBER 2010

DELIVERED          :   2 NOVEMBER 2010

FILE NO/S:   CIV 2559 of 2009

BETWEEN:   LINO VISINTIN

Plaintiff

AND

JACQUELINE ANN HIGGINS
First defendant

TRACY LYNN RYAN
Second defendant

Catchwords:

Appeal from registrar - District Court Rules 2005 r 15(1) - Application to strike out parts of statement of claim - Application for leave to amend - Turns on own facts

Legislation:

District Court Rules 2005
Rules of the Supreme Court 1971

Result:

Directions given

Representation:

Counsel:

Plaintiff:     Ms T McAulay

First defendant              :     No appearance

Second defendant          :     Mr W Vogt

Solicitors:

Plaintiff:     Lawton Gillon

First defendant              :     D'Angelo Kavanagh

Second defendant          :     Vogt Graham Lawyers

Case(s) referred to in judgment(s):

Barclay Mowlem Construction Ltd v Dampier Port Authority & Nicholson [2006] WASC 281

Perre v Apand Pty Ltd (1999) 198 CLR 180

1. STAUDE DCJ:  This matter comes before me as an appeal from a decision of the principal registrar dismissing the second defendant's application to strike out parts of the plaintiff's re-amended statement of claim.

2. The plaintiff's claim is for damages for breach of a contract for the sale of land by offer and acceptance dated 31 October 2006.  The plaintiff was the registered proprietor of a lot described as 8 Salome Crescent, Lakelands.  The contract involved the purchase of a house and land package.  The second defendant dealt with the plaintiff's agent Darren Nelson of Century 21 Coast Realty, Mandurah with respect to the transaction and signed the offer and acceptance.  The offer and acceptance, however, stated the buyer of the property to be the first defendant who is the second defendant's sister.  Curiously, the offer and acceptance provided by a special condition that the buyer's nominee was the second defendant.  The plaintiff contends that the contract was entered into by the second defendant as agent for the first defendant or in her own right.

3. Following the construction of the house on the land notice was given to both defendants to complete the purchase in accordance with the terms of the offer and acceptance.  When neither defendant completed, default notices were issued which were not complied with by either defendant.  The plaintiff then sold the property for a lesser sum than the contract price, namely, $345,000, and brought this action for damages being the loss suffered on resale and holding costs.

4. The action has had a long history having been commenced in the Supreme Court by writ dated 30 June 2008.  The action was remitted by the Supreme Court to this court pursuant to consent orders made on 19 August 2009.

5. The second defendant's application was made by chamber summons dated 5 February 2010 which sought an order that certain parts of the re‑amended statement of claim be struck out in accordance with a minute of the re-amended statement of claim marked up so as to indicate those parts to which the application pertained.

6. The chamber summons also sought an order for the dismissal of the plaintiff's claim against the first defendant.  The application was supported by an affidavit of Benjamin Francis Stanwix sworn 5 February 2010 which deposed to various matters including a number of requests made on behalf of the second defendant to the plaintiff for further and better particulars of the agency relationship alleged by the plaintiff to have existed as between the defendants at the time of the transaction.

7. The application was listed for hearing at a special appointment on 27 April 2010.  An outline of submissions on behalf of the plaintiff in opposition to the application was filed on 20 April 2010.  No outline of submissions had been filed on behalf of the second defendant by that date.  The plaintiff's outline argued that the application should be dismissed because:

   (a)it was out of time;

   (b)the second defendant was not entitled to seek an order striking out the claim pleaded against the first defendant; and

   (c)the application appeared to be premised on the second defendant's belief that the claim pleaded against the first defendant could not be established on the evidence.

8. The plaintiff further contended that:

   (a)for the purpose of determining whether the statement of claim disclosed a reasonable cause of action the facts alleged should be assumed to be true, noting that evidence is not admissible on the hearing of an application pursuant to O 20 r 19(1)(a);

   (b)he was entitled to plead that the subject transaction was entered into by the second defendant as agent for the first defendant or in her own right;

   (c)insofar as the application was brought pursuant to RSC O 20 r 19(1)(c) there were no features of the re-amended statement of claim which would prejudice, embarrass or delay the fair trial of the action; and

   (d)there was otherwise no basis for the application.

9. When the matter came before the principal registrar on 21 April 2010 it was further adjourned to 2 June 2010.  Directions were made granting leave to the plaintiff to interrogate the first defendant in respect of the issue of agency.  I was informed that the learned principal registrar took the view at that hearing that the provision of answers to interrogatories may assist the resolution of the application.

10. Interrogatories were duly administered by the plaintiff.  In answers which were verified by affidavit sworn 19 May 2010 the first defendant stated that she did not authorise the second defendant as her agent.  She had become aware that the second defendant had purported to purchase the property in question on her behalf, but could not remember when.  She said she had been told by the second defendant that she had attempted to purchase a property on her (the first defendant's) behalf to assist her but that she could not complete the purchase because of personal circumstances.  She said that the second defendant had requested her to forward any mail pertaining to the transaction to her.  It is not necessary for present purposes to detail other answers given by the first defendant.

11. On 2 June 2010 the matter came before the learned principal registrar for a special directions hearing.  It was adjourned to 30 June 2010.  On that date orders were made that the plaintiff file and serve a minute of proposed re‑amended statement of claim and that the second defendant's application be listed for hearing on 11 August 2010.

12. The plaintiff's solicitors duly filed and served a minute of proposed further amended statement of claim on 21 July 2010.  The order of the learned principal registrar does not indicate that leave was formally granted to further re‑amend the statement of claim.  It is not clear whether it was intended that the defendants would have the opportunity to object to the minute.  I note, however, that on 3 August 2010 the second defendant's solicitors wrote to the plaintiff's solicitors indicating that they were taking instructions as to their client's objections to the minute (affidavit of Mr Vogt, 13 September 2010, annexure C).

13. The application to strike out came before the learned principal registrar on 11 August 2010.  The solicitor for the second defendant did not appear.  His non‑appearance was due to an error made by him in diarising the hearing (Vogt affidavit, annexure G).  There is no transcript of the proceedings and there is no other evidence before me explaining why the hearing proceeded in the absence of the second defendant's solicitor.  In any event orders were made as follows:

    1.The second defendant's application dated 5 February 2010 to strike out certain parts of the statement of claim be dismissed.

    2.The defendants file any amended or re-amended defences on or before 25 August 2010.

    3.The plaintiff file and serve any amended reply and defence to counterclaim on or before 1 September 2010.

    4.The entry for trial milestone be extended to 22 September 2010.

    5.The costs of the application including the hearing today be reserved.

    6.There be a directions hearing on 29 September 2010 at 9.45 am with liberty to vacate if entry for trial is achieved.

14. The first three orders made by the learned principal registrar were in terms of a minute of proposed orders handed up by Ms McAulay on behalf of the plaintiff.  No order was made to the effect that the plaintiff have leave to further re-amend its statement of claim or that the minute of proposed further re‑amended statement of claim filed on 21 July 2010 stand as the statement of claim.

15. The plaintiff's solicitor Ms McAulay sent a letter by email to the first and second defendants' solicitors respectively on 11 August 2010 advising them of the orders made that day (Vogt affidavit, annexure F).

16. Mr Vogt responded by letter on 12 August 2010 (Vogt affidavit, annexure G) explaining the reasons for his non-attendance and pointing out with reference to the Law Society's List of Professional Courtesies that the hearing should not have proceeded in his absence.

17. By notice of appeal pursuant to r 15(1) of the District Court Rules 2005 dated and filed 13 August 2010 the second defendant seeks to set aside the orders made on 11 August 2010.  Rule 15 provides that an appeal lies to a judge from a decision of a registrar and that the appeal is by way of a new hearing of the matter.

18. I observed to counsel at the hearing of the appeal that the second defendant's application to strike‑out related to a version of the statement of claim which had been superseded by the minute filed on 21 July 2010.  It seemed to me, and neither counsel argued to the contrary, that no leave had been granted to the plaintiff to further re-amend the statement of claim, the plaintiff having merely been ordered to file and serve a minute to which, presumably, the second defendant could object.

19. In the circumstances, I proposed, subject to the agreement of counsel, that the hearing of the appeal should proceed as and by way of an application to further re-amend the statement of claim in the terms of the minute dated 21 July 2010 and that the second defendant could make in opposition to such application the objections on which the strike‑out application was based.  Counsel for the plaintiff and the second defendant agreed.

20. The first defendant was not represented.  Mr Vogt, on behalf of the second defendant, confirmed that the defendants were sisters and that the first defendant was taking a passive role.  It was the case of the first defendant that she did not authorise the second defendant to enter into the subject transaction.  In response to my expressed concern that orders should not be made which affected the first defendant's interests, Mr Vogt suggested that any orders should be made subject to the first defendant being granted liberty to apply to vary any order by which she was affected.

21. Before hearing from Mr Vogt with respect to his client's specific objections to the minute which were detailed in his letter to the plaintiff's solicitors dated 16 August 2010 (Vogt affidavit, annexure I), I ruled that the second defendant could not object to, or apply to strike out, any part of the minute which affected the first defendant only.  I was not persuaded that the second defendant had any legitimate forensic interest in doing so.

22. During the course of the hearing I indicated from time to time that I considered that further particulars should be given of certain allegations.  I took the view that leave to further re-amend the statement of claim should only be given if the statement of claim were comprehensively pleaded, thereby avoiding the necessity for any requests for further and better particulars to be made.  I also indicated in my comments from the bench that certain amendments might be made to overcome criticism of the pleading by the second defendant.

23. At all times I was conscious of the following remarks made by Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority & Nicholson [2006] WASC 281, 15 – 16:

    It is also clear from my review of the objections that in many cases their appropriate resolution may lie in the provision of particulars of the pleading.  Having made that observation, however, I would discourage the idea that particulars should be sought merely because they could be sought and I would discourage acceptance of the proposition that particulars have to be provided merely because they can be provided.

    Particulars should be provided, in an appropriate case, where they are necessary to meet the fundamental objections to which I have referred; that is to say, the true enunciation of the issues that are to be tried and identification of the case that has to be met.  The need to provide particulars must also be assessed in the case management environment to which I have referred; that is to say, an environment in which the parties can be assured that the case will not go to trial before various orders have been made requiring the pre-trial disclosure of all the evidence that will be adduced at trial.

24. At [7] his Honour observed:

    In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derived from a very different case management environment.

25. His Honour found that with the advent of contemporary case management techniques the court should entertain pleading disputes 'only where the criticisms of the pleadings significantly impact upon the proper preparation of a case and its presentation at trial'.  This case does not involve such a large amount of money by way of claimed damages as should justify prolonged disputation over the pleadings.  As I observed in the course of the hearing, the principle issues concerning the second defendant are whether she is bound by the contract on the basis that she contracted in her own right and whether, if she purported to act as agent for the first defendant, but was not so authorised, she breached an implicit warranty of authority in the circumstances.  These issues are germane to the plaintiff's claims for breach of contract, breach of warranty of authority and misleading or deceptive conduct.

26. Turning then to the objections made by the second defendant to the minute of proposed further re-amended statement of claim which are substantially the grounds for the second defendant's application to strike out certain parts of the statement of claim, my rulings (by reference to the paragraphs objected to) are as follows:

    [2]The objection to [2] is that the expression 'the first defendant and/or nominee agreed to purchase' is vague, embarrassing and lacking particularity.  I uphold the objection.  It is meaningless to allege agreement by a non‑specified nominee.  If it is the plaintiff's intention to plead that the first defendant, alternatively, the second defendant, agreed to purchase the land then those words should be used.

    [2A]The statement 'the nominee was the second defendant' is objected to on the grounds that it is embarrassing and lacking in particularity.  I uphold the objection.  The basis of the nomination should be pleaded.  In this case the offer and acceptance itself states that the nominee is the second defendant.  This fact should be pleaded.

    [3]The plaintiff submits that the allegation that the second defendant was the duly authorised agent of the first defendant should be particularised so as to indicate on what basis the second defendant was alleged to be duly authorised.  This paragraph pertains to a claim against the first defendant but it also affects the second by reason of the alternative claim for breach of warranty of authority.  In my view, unless the plaintiff can give particulars of due authorisation, then the words 'duly authorised' should be struck out.  Furthermore, the allegation that the second defendant was the agent of the first defendant should be particularised so as to make it clear on what basis the agency is alleged.  From the plaintiff's solicitor's submissions I understand that the plaintiff alleges that by signing the offer and acceptance the second defendant purported to be the first defendant's agent and that she otherwise represented to Mr Nelson that she was contracting on behalf of the first defendant.  These facts should be pleaded.

    [3A] and [3B]

    The allegations in these paragraphs pertain only to the claim against the first defendant.  I do not consider that the second defendant can properly object to them.

    [3C]This paragraph pleads, in the alternative to [3], that the second defendant signed the contract as purchaser.  The second defendant submits that the allegation is vague and embarrassing.  In my opinion the paragraph would benefit from the addition of the words 'in her own right'.  I do not consider any further particularisation is necessary.  The meaning is clear.

    [5]The plaintiff's objection is as to grammar and is sensibly not pressed.

    [10]This paragraph pertains to a claim against the first defendant.

    [10A]The plaintiff submits that [10A] is inadequate, vague and embarrassing as it fails to plead full and detailed particulars of the second defendant's alleged authority.  In my view, [10A] is sufficiently pleaded.

    [17] and [18]

    These paragraphs are objected to for reasons of form. It is submitted that [13] – [16] are in effect particulars of the alleged breaches of contract by the first and second defendants. In my opinion [18] is redundant. There could be no objection, however, to the plaintiff pleading that by failing to complete the purchase of the property as alleged in [13A], [14] and [15] the second defendant breached the contract.

    [23]The plaintiff submits that the allegation in this paragraph is vague, confusing and embarrassing in that it fails to plead particulars of the second defendant's alleged assertion to Mr Nelson that she was the authorised agent of the first defendant.  The point is well made.  The plaintiff should plead with particularity by what means and in what terms the alleged assertion was made.

    [24]The plaintiff submits that this paragraph is vague, confusing and embarrassing as it fails to plead particulars of the allegation that the second defendant was the authorised agent of the first defendant.  This allegation is made in the context of a claim for breach of warranty by authority.  The plaintiff is required to plead that the second defendant by her conduct represented that she was the agent of the first defendant and authorised to sign the contract on her behalf.  The allegation in its present form is that the second defendant was in fact the first defendant's authorised agent.  That fact does not support a claim for breach of warranty of authority.

    [25]I accept that this paragraph is otiose.

    [26]This paragraph does not make sense in that it refers to [18], [19] and [20] which do not bear on the issue of breach of warranty of authority. Accordingly, the allegation of reliance is objectionable and should be amended. It may be superfluous in view of the allegation in [27].

    [28]The objection to this paragraph is that it combines allegations of breach of warranty and causation of loss.  This is a technical objection which in my opinion would not warrant the paragraph being struck out, but it seems to me that the plaintiff's position may be clarified if breach of warranty of authority were pleaded separately from loss and damage allegedly so caused.

    [29]This paragraph alleges that the second defendant owed a duty of care to the plaintiff not to mislead the plaintiff in providing information about the second defendant's relationship with the first defendant.  The claim in negligence is in my opinion an unnecessary alternative.  It is not contended by the second defendant, however, that no such cause of action is disclosed.  I accept the second defendant's submission that the basis upon which the plaintiff alleges that the second defendant owed a duty of care should be particularised.  In my opinion, so should the alleged content of that duty.  If the plaintiff is to allege a duty of care not commonly recognised by the common law (such as the duty owed by drivers of motor vehicles), then the salient features of the relationship between the plaintiff and second defendant, on which the plaintiff relies to establish the duty of care should be pleaded (see, for example, Perre v Apand Pty Ltd (1999) 198 CLR 180). Still, I doubt very much whether the inclusion of this claim assists the plaintiff.

    [30]The second defendant objects on the basis that there is inadequate particularisation of the alleged false or negligent statements and representations which are alleged to constitute a breach of duty of care. I uphold the objection. Furthermore, I would observe that there seems to be no basis upon which to distinguish between negligent misstatement and negligent misrepresentation in the context of [30]. The paragraph should particularise the alleged negligence of the second defendant.

    [31]This paragraph alleges that by reason of the second defendant's breach of duty of care to the plaintiff the plaintiff has suffered loss and damage.  Implicit in this allegation is an allegation that the second defendant's breach has caused the alleged loss and damage.  I do not accept the second defendant's submission that further particulars are required.

    [35]This paragraph also alleges loss and damage as a result of misleading or deceptive conduct on the part of the second defendant by reason of her allegedly representing to Mr Nelson that she was the agent of the first defendant. I accept that there should be alleged, in order to make out a claim under s 10 of the Fair Trading Act 1987 an allegation that the plaintiff relied on the alleged misrepresentation and thereby suffered loss and damage.  The plaintiff's reliance should be particularised as should the basis of the contention that the alleged loss and damage was so caused.

Conclusion

1. It is regrettable that the second defendant's chamber summons was dismissed in the absence of that party's solicitor.  The hearing should have been adjourned if Mr Vogt could not be contacted.  The recognised courtesy was not shown him.  The result is an unnecessary appeal which has resulted in my determining objections to the proposed statement of claim as if at first instance.  The matter has been further complicated by a direction to the plaintiff to file and serve a minute of proposed further re‑amended statement of claim in the face of an unresolved strike‑out application without formal leave to amend being granted.

2. In the result a pragmatic approach had to be taken to the issues raised with respect to the plaintiff's pleading as appears from these reasons.  I allow the appeal to set aside the learned principal registrar's decision dismissing the second defendant's application to strike out parts of the statement of claim.  I do not, however, determine that application because the pleading to which it is directed has been superseded.  As I have stated, the appropriate course is to rule on the second defendant's objections to the plaintiff's most recent minute.

3. In my opinion none of the objections to the minute that I have upheld would justify the refusal of leave to further re-amend the statement of claim.  I consider that the minute should be amended and further particularised so that it fully and properly pleads the allegations of material fact which the plaintiff must prove in order to establish his claims, or any of them, against the second defendant.

4. I direct that the plaintiff's solicitors serve on the solicitors for the first and second defendants respectively a fresh minute of proposed further re‑amended statement of claim which reflects these reasons and that the parties confer with a view to bringing in a minute of consent orders for leave to amend, any consequential orders that may be required, and any other orders required to dispose of the appeal.  If the parties are unable to agree then the second defendant's appeal should be re-listed before me.  These directions are applicable to the first defendant also.  If the first defendant wishes to be heard, then her solicitors may request a further hearing.

5. With respect to costs, it follows from my rulings that the second defendant would have been partially successful in her application to strike out parts of the statement of claim.  However, I consider that the second defendant's attempt to argue the cause of the first defendant with respect to the statement of claim was mistaken and inappropriate.  On the other hand the second defendant has been put to expense by virtue of the plaintiff's further re-amendment of the statement of claim.

6. I indicated at the conclusion of the hearing that I would express a provisional view as to costs, but that I would not make any order without hearing from the parties.  On reflection, I consider that the parties should confer on the issue of costs and, if agreement cannot be reached, re‑list the matter for further hearing in that regard.  Alternatively, if the parties agree, I will deal with the issue on the basis of written submissions.