Wang v Intrinsic Project Pty Ltd

Case [2023] WADC 50

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WANG -v- INTRINSIC PROJECT PTY LTD [2023] WADC 50

CORAM:   REGISTRAR JEYAMOHAN

HEARD:   3 MAY 2023

DELIVERED          :   12 MAY 2023

FILE NO/S:   CIV 5374 of 2022

BETWEEN:   LEI WANG

Plaintiff

AND

INTRINSIC PROJECT PTY LTD

First Defendant

WILL LEE LEONG

Second Defendant


Catchwords:

Practice and procedure - Defendants' application for orders pursuant to O 20 r 19(1)(a) and/or O 20 r 19(1)(c) - Where contractual terms of contract not specifically pleaded - Restitution - Unjust enrichment - Pleadings disclose comprehensible causes of action - Turns on own facts

Evidence - Admissibility of evidence in determination of strike out application - Evidence admissible in strike out application brought under Rules of the Supreme Court 1971 (WA) O 20 r 19(1)

Legislation:

Australian Consumer Law (WA)

Competition and Consumer Act 2010 (Cth), s 4, s18 of Sch 2, s 236
Fair Trading Act 2010 (WA)
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(a), O 20 r 19(1)(c) and O 20 r 19(2)

Result:

Application to strike out statement of claim in its entirety, in the alternative, in part, dismissed

Representation:

Counsel:

Plaintiff : Mr M G S Crowley
First Defendant : Mr M N Blandford
Second Defendant : Mr M N Blandford

Solicitors:

Plaintiff : Exceed Legal
First Defendant : Hoe Lawyers
Second Defendant : Hoe Lawyers

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

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560

Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 4] [2020] WASC 382

David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353

Day v William Hill (Park Lane) Ltd [1949] 1 KB 632

DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97

English v Vantage Holdings Group Pty Ltd [2021] WASCA 47

Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Fremantle Port Authority v Cosco Shipping Bulk (South East Asia) Pte Ltd [2023] WASC 95

Gray v Lavan (a firm) [2022] WASC 417

Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431; (2014) 103 ACSR 137

Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)

Kidd v Mitchell Frederick Artus trading as Downings Legal [2013] WASC 264

Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516

Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236

Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478

Terravision Pty Ltd v Black Box Control Pty Ltd [No 2] [2015] WASC 66

Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

REGISTRAR JEYAMOHAN:

Introduction and summary

  1. By chamber summons dated 20 January 2023, heard 3 May 2023, the defendants seek…

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Wang v Intrinsic Project Pty Ltd [2023] WADC 50
Case
[2023] WADC 50
Decision Date

CaseChat Overview and Summary

In Wang v Intrinsic Project Pty Ltd, the plaintiff sought to recover payment for services rendered, while the defendant, Intrinsic Project Pty Ltd, argued that the plaintiff's claim was either statute-barred or that the plaintiff had already been paid. The case was heard in the Supreme Court of Western Australia. The defendants filed an application to strike out the plaintiff's statement of claim on several grounds, including that the pleadings disclosed no reasonable cause of action and that the claim was statute-barred. The court was required to determine the admissibility of evidence in the context of a strike-out application under O 20 r 19(1)(a) and O 20 r 19(1)(c) of the Rules of the Supreme Court 1971 (WA).

The court examined the admissibility of evidence in the context of a strike-out application. It noted that evidence is generally not admissible in a determination of an application under O 20 r 19(1)(a) unless it pertains to documents specifically pleaded in the statement of claim. The court referred to the case of Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd, where it was held that evidence is inadmissible in such circumstances, except for documents explicitly mentioned in the pleadings. The court also referenced Day v William Hill (Park Lane) Ltd, which supports the notion that evidence is not generally admissible in a strike-out application unless it is incorporated into the pleadings in a meaningful way. In contrast, the court found that evidence could be admissible in a strike-out application brought under O 20 r 19(1)(c), particularly when the pleadings might prejudice, embarrass, or delay the fair trial of the action. The court held that pleadings could be struck out if they were evasive, ambiguous, or not reasonably intelligible, among other reasons.

The court concluded that while evidence was not generally admissible in a strike-out application under O 20 r 19(1)(a), the court could consider documents mentioned in the pleadings. This was supported by the case of Technip Oceania Pty Ltd v Cutmere Pty Ltd, where Allanson J observed that the court could look at documents incorporated into the pleadings for the purposes of the application. However, the court did not accept the proposition that a written instrument could be read on a strike-out application to support a defendant's contention that the plaintiff's construction of the instrument was incorrect. The court found that the plaintiff's construction of the contractual terms was not admissible as evidence in the context of the strike-out application. The court found that the pleadings disclosed a comprehensible cause of action, and the matter would turn on its own facts. Therefore, the application to strike out was dismissed.

The court ordered that the defendants' application to strike out the plaintiff's statement of claim was dismissed. The court found that the pleadings disclosed a comprehensible cause of action and that the matter would turn on its own facts. The court also found that the defendants' application to strike out was not well-founded.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Evidence is not admissible in determination of an application under O 20 r 19(1)(a), save for documents pleaded in the statement of claim.[1] [1] Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236 [3] (McLure JA); Day v William Hill (Park Lane) Ltd [1949] 1 KB 632, 639 (Singleton J) (William Hill). Evidence is admissible in the determination of a strike‑out application brought on grounds that rely upon O 20 r 19(1)(c), that is the pleadings may prejudice, embarrass or delay the fair trial of the action. Pleadings are liable to be struck out on this ground because they are evasive, conceal, or obscure the real questions in controversy, are ambiguous or not reasonably intelligible, raise immaterial or irrelevant issues, fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.[2] [2] Kidd v Mitchell Frederick Artus trading as Downings Legal [2013] WASC 264 [26] (Allanson J) citing Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998); see also, Terravision Pty Ltd v Black Box Control Pty Ltd[No 2] [2015] WASC 66 [16] (Le Miere J). The defendants rely on Technip Oceania Pty Ltd v Cutmere Pty Ltd[3] in support of the proposition that whilst pursuant to O 20 r 19(2) no evidence is admissible on an application under O 20 r 19(1)(a), the court may, however, refer to documents mentioned in pleadings.[3] Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478 [12] (Technip Oceania). The plaintiff submits that William Hill stands for the dual proposition that: (a) generally evidence may not be adduced on a strike‑out application, except; (b) where extraneous material is incorporated into a pleading. But 'incorporated' here means more than a bare reference. The plaintiff further submits that Technip Oceania is no authority that a written instrument can be read on a strike‑out application in support of a defendant's contention that the plaintiff's construction of an instrument is wrong. It is relevant to observe that the plaintiff in Technip Oceania claimed damages for breach of a lease, alternatively for misleading or deceptive conduct, alternatively for restitution of sums paid under the lease which it pleads were an unjust enrichment of the lessor, Cutmere. In Technip Oceania, it was not in dispute that Technip Oceania and Cutmere were parties to a lease, and a deed of variation. The lease and the deed of variation were expressed to be entered into by Cutmere only in its capacity as Trustee of the 333 Trust, and Cutmere has now pleaded that in its defence. It is in this context that Allanson J in Technip Oceaniain citing William Hill, made the following observation:[4]Although evidence may not be generally adduced on a strike out application, the court is entitled to look at the Lease and Deed of Variation as documents incorporated in the pleadings. For the purposes of this application I have had regard to those agreements. The provisions in each instrument limiting (or purporting to limit) the liability of Cutmere are at the heart of the pleading dispute.[4] Technip Oceania [12] (footnotes omitted).