Zaccaria v Hribar Nominees Pty Ltd - [2006] WASC 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ZACCARIA -v- HRIBAR NOMINEES PTY LTD [2006] WASC 133

CORAM: LE MIERE J

HEARD: 5 MAY 2006

DELIVERED : 30 JUNE 2006

FILE NO/S: CIV 1109 of 2006

MATTER :Orders 45 and 62A of the Rules of the Supreme Court
and
491 Alexander Drive, Lansdale

BETWEEN: ROBERT MICHAEL ZACCARIA
Plaintiff
AND
HRIBAR NOMINEES PTY LTD (ACN 008 777 642)
Defendant

Catchwords:

Civil practice and procedure - Application to strike out portions of statement of claim - Whether statement of claim discloses reasonable cause of action - Whether words pleaded were capable of giving rise to oral agreement as pleaded - Whether s 55(2) of the Property Law Act 1969 (WA) confers power on court to order sale of mortgaged property in conjunction with the interests of co-owners

Legislation:

Law of Property Act 1925 (UK), s 91

Property Law Act 1969 (WA), s 55

Result:

Paragraphs 8, 9.2, 9.3, 15 and 16 of statement of claim struck out
Plaintiff has leave to re-plead statement of claim

Category: B

Representation:

Counsel:

Plaintiff: Ms W F Buckley
Defendant: Mr D H Solomon

Solicitors:

Plaintiff: Hager & Partners
Defendant: Solomon Brothers

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

Barrett v Halifax Building Society (1995) 28 HLR 634
Cheltenham & Gloucester PLC v Krausz [1997] 1 WLR 1558
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Niven v Grant (1903) 29 VLR 102
Palk v Mortgage Services Funding Plc [1993] Ch 330

Case(s) also cited:

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
G Scammell & Nephew Ltd v H C & J G Ouston [1941] AC 251
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Legione v Hateley (1983) 152 CLR 406
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60
Low v Bouverie [1891] 3 Ch 82
McMahon v A F Wade Pty Ltd [1983] WAR 152
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Mulcahy v Hoyne (1925) 36 CLR 41
Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723
Re Forrest Trust; Trustees Executors & Agency Co Ltd v Anson [1953] VLR 246
Reed v Sheehan (1982) 56 FLR 206
Sandgate Corporation Pty Ltd (in liq) v Ionnou Nominees Pty Ltd (2000) 22 WAR 172
Style v Hearing (1605) Cro Jac 73; 79 ER 62
The Western Australian Insurance Co Ltd v Dayton (1924) 35 CLR 355
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Van Den Bosch v Australian Provincial Assurance Ltd [1968] 2 NSWR 550
Whelpdale's Case (1604) 5 Co Rep 119a; 77 ER 239
Xenos v Whickham (1867) LR 2 HL 296

LE MIERE J: The defendant has applied to strike out the statement of claim on the grounds that pars 8, 9.2, 9.3, 15 and 16 disclose no reasonable cause of action.

The Statement of Claim

For the purposes of this application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points of law the pleading is unassailable: Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986, citing Niven v Grant (1903) 29 VLR 102 at 106.
The statement of claim pleads the facts as follows. The plaintiff is and was at all relevant times the registered proprietor of a three undivided twelfth share of land situated at Landsdale ("the Landsdale Land"). There are four other co‑owners of the Landsdale land ("the Co‑owners"). The defendant company is the registered proprietor of land at Joondalup ("the Joondalup Land").
In November 1998, the plaintiff, on behalf of himself and his wife, commenced negotiations with Mr Frank Hribar on behalf of the defendant with respect to both the construction and fit out of a building on the Joondalup Land by the defendant which would in part comprise a roller skate rink and the subsequent lease of that part of the Joondalup Land ("the Premises") by the plaintiff and his wife for the purpose of operating the business of a roller skate rink.
During the course of the negotiations the following matters were discussed and agreed between the plaintiff and Mr Hribar on behalf of the defendant ("the oral agreement"). The defendant, at its cost, would construct a building on the Joondalup Land and pay for certain costs of fit out of the Premises to enable the Premises to be used as a roller skate rink, which costs were then estimated as being between $450,000 and $500,000. The plaintiff and his wife would agree to take a lease of the Premises. The defendant would require the plaintiff and his wife to pay to the defendant, over the course of the original term of the lease, certain agreed costs of the fit out of the Premises together with interest. The defendant would require security to be provided by the plaintiff and his wife over their share of the cost of the fit out. The only security that the plaintiff and his wife were able to offer was security over their matrimonial home in which they had equity of between $65,000 and $70,000 and security over the plaintiff's share of the Landsdale Land, which the plaintiff estimated was then worth about $78,000. The plaintiff hoped that his share of the Landsdale Land would substantially increase in value to between $400,000 and $500,000 if that land could be re‑zoned to allow subdivision for residential use, however, it was possible that the security able to be offered by the plaintiff and his wife may never be sufficient to secure the repayment by them of the fit out costs to the defendant under the lease. In order for the defendant to take security of the plaintiff's share of the Landsdale Land, the defendant required the plaintiff to obtain a separate "purple title" (a certificate identifying the plaintiff's undivided share of the land) for the plaintiff's share in the Landsdale Land as the defendant was not satisfied with lodging a caveat over the plaintiff's share in the Landsdale Land.
The discussion and agreement then pleaded in par 6.11 is important. I will set it out in full:
"When the plaintiff advised Frank Hribar, on behalf of the defendant, that the co‑owners of the other nine undivided twelfth shares in the Landsdale land were concerned that the plaintiff was putting up the plaintiff's share of the Landsdale land for security, Frank Hribar replied words to the effect:
'There is no need for concern. I've got your share and your share only'."
As a consequence of the negotiations between the plaintiff and the defendant the defendant commenced construction of the building on the Joondalup land and the fit out of the premises.
Paragraph 8 of the statement of claim is important; I will set it out in full:
"On a proper construction of the oral agreement and in particular the words pleaded at paragraph 6.11, the defendant agreed to the discharge of any security to be granted over the plaintiff's share of the Landsdale Land in return for payment to it of the net proceeds of sale of the plaintiff's share of the Landsdale Land."
The plaintiff then pleads that if his construction as pleaded in par 8 is not accepted, then it was either implicit in the words or impliedly represented to the plaintiff by the words spoken by Frank Hribar and pleaded in par 6.11 in light of the other matters pleaded to have been discussed and agreed during the negotiations that:
"9.1The security to be taken by the defendant over the plaintiff's share of the Landsdale Land would only secure money owed by the plaintiff and his wife to the defendant;
9.2the defendant would do nothing that would affect the interests of the Co‑owners in enforcing its rights under the security;
9.3the defendant would not claim from the plaintiff more than the plaintiff's share of the net proceeds of sale of the Landsdale Land in return for a discharge of any security granted over the plaintiff's share of the Landsdale Land."
The plaintiff then pleads that in reliance on the implicit representations just referred to the plaintiff acted to his detriment in that he took steps to obtain a separate purple title for his share of the Landsdale Land and he granted a mortgage of his share of the Landsdale Land to the defendant ("the Mortgage").
In February 2000 the plaintiff and his wife entered into a written agreement to lease the premises from the defendant ("the Agreement to Lease"). The terms of the Agreement to Lease include the following. The plaintiff and his wife would provide the defendant with security, amongst other things, being a mortgage of the plaintiff's share of the Landsdale Land. The plaintiff and his wife agreed that the plaintiff's share of the Landsdale Land was charged with the performance by them of their obligations under the Agreement to Lease and the amount of the expenditure by the defendant on the "Lessor's Lessee's Works" together with interest ("the Secured Amount"). If the plaintiff wished to sell or transfer his share of the Landsdale Land then the plaintiff would have to apply any surplus net proceeds of sale towards the Secured Amount and pay in addition to the Secured Amount up to $50,000, to the defendant's agent as a performance bond.
On or about 18 February 2000 the plaintiff and his wife entered into a written lease of the Joondalup Land ("the Lease"). The terms of the Lease included terms that the plaintiff had provided security for the payment to the defendant of fit out costs in accordance with the Agreement to Lease. The security, which included the mortgage over the plaintiff's share of the Landsdale Land, would also secure any moneys owing by the plaintiff and his wife to the defendant by reason of any breach of the Lease or early termination of the Lease by reason of breach. Any money recovered by the defendant from the realisation of any property the subject of the security or payments made would be applied first towards moneys payable pursuant to the Agreement to Lease then towards the costs of enforcement of the Lease and then towards moneys owing pursuant to the Lease.
In par 15 the plaintiff pleads:
"On a proper construction of the operative part and clauses 1, 2 and 11 of the Mortgage, clause 2.01(h) of the Agreement to Lease, the Fourth Schedule of the Lease, and the whole agreement the plaintiff is entitled to sell the plaintiff's share of the plaintiff's land, pay the net proceeds of sale of the plaintiff's share of the Landsdale Land to the defendant and redeem the mortgage."
The plaintiff then pleads that if he is wrong in his plea in par 15 that he is entitled to redeem the Mortgage then the defendant is estopped from asserting the right to refuse to discharge the Mortgage on tender of the net proceeds of sale of the plaintiff's share of the Landsdale Land by reason of the matters set out earlier concerning the negotiations and oral agreement between the plaintiff and the defendants, the implicit representations by the defendant and the reliance by the plaintiff to his detriment upon those representations.
The plaintiff's share of the Landsdale Land and the shares of the Co‑owners have been sold to Stockland WA Development Pty Ltd for a price of $430,000 for the plaintiff's share pursuant to an option granted earlier. The defendant has refused to discharge the Mortgage except on payment of the sum of $1,000,000 which it says is at least the amount owing by the plaintiff to it under the terms of the Agreement to Lease and the Lease which sum exceeds the proceeds of sale of the plaintiff's share of the Landsdale Land. Because of the defendant's refusal to discharge the Mortgage upon payment of the net proceeds of sale of the plaintiff's share in the Landsdale Land the plaintiff and the Co-owners cannot complete the sale of the Landsdale Land and are suffering loss and damage by reason of the accrual of penalty interest pursuant to the terms of the option and by reason of any interest accruing on the debt owed to the defendant.
The relief claimed by the plaintiff is as follows:
a.As mortgagor, an order to have an account taken of what, if anything, is due from the plaintiff to the defendant pursuant to the Mortgage.
b.An order that a payment by the plaintiff to the defendant of the plaintiff's three undivided twelfth share of the net proceeds of sale of the Landsdale Land to Stockland the plaintiff may be at liberty to redeem the plaintiff's share of a Landsdale Land comprised in the Mortgage.
c.Alternatively, an order pursuant to s 55 of the Property Law Act that the plaintiff may be at liberty to sell the plaintiff's share in the Landsdale Land free of encumbrances to Stockland.
d.Upon such sale, the plaintiff pay to the defendant the plaintiff's three undivided twelfth share of the net proceeds of the sale of the Landsdale Land in discharge of the Mortgage.

Legal Principles

The principles to be applied in considering an application to strike out a statement of claim on the grounds that it discloses no reasonable cause of action are well known. They were summarised as follows in Kimberley Downs Pty Ltd v Western Australia (supra). The strike out rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course. Great care must be exercised to ensure that the plaintiff is not improperly deprived of the opportunity for the trial of their case by the appointed tribunal. The rule should not be reserved only for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed. As a general rule a plaintiff is entitled as of right to have their case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out.

Statement of Claim, par 8

The defendant's primary attack is upon par 8 of the statement of claim, which I have set out above. The defendant submits that par 8 discloses no reasonable cause of action for two reasons. First, the words pleaded in par 6.11 of the statement of claim are incapable of giving rise to the oral agreement pleaded in par 8. Secondly, the oral agreement is void for uncertainty.

The "Only one Meaning" Argument

The defendant submits that there is only one possible meaning for the words pleaded in par 6.11, that is that the defendant was to receive as security the plaintiff's share of the Landsdale Land and was not going to receive security in the form of any other registered proprietor's share in the Landsdale Land.
In response, the plaintiff submits that the words used by Mr Hribar: "There is no need for concern. I've got your share and your share only", were said in the following circumstances. First, it was known to both parties that the value of the plaintiff's share in the Landsdale Land may never be sufficient to secure repayment to the defendant of the fit out costs. Secondly, the words were spoken in answer to Mr Hribar being informed that the Co‑owners were concerned that the plaintiff was putting up his share as security. Thirdly, what was being offered was a security interest in the plaintiff's share. The plaintiff submits that taking into account those circumstances, the construction contended for cannot be said to be unarguable because:
(a)Two of the primary rights of a mortgage holder are to claim the proceeds on the sale of a mortgage property or to exercise the power of sale; and
(b)The words said were to address the concerns of the Co‑owners and were a clear limitation on any right to take action that would impinge on the rights of the Co‑owners. Accordingly, the words spoken are to be construed as limiting the defendant's rights to the proceeds of sale to only the proceeds of the sale of the plaintiff's share in the Landsdale Land.
I accept that, on the facts pleaded, the relevant words were said to address the concerns of the Co‑owners. However, that does not mean that they created some limitation on the rights of the defendant under the Mortgage, or any mortgage to be granted by the plaintiff. The words pleaded in the circumstances pleaded, amount to an assurance that the granting by the plaintiff to the defendant of a mortgage over the plaintiff's interest in the Landsdale Land did not affect the rights of the Co‑owners.
The granting of the Mortgage did not affect the rights of the Co‑owners in relation to their interests in the Landsdale Land. The grant of the Mortgage affected, or potentially affected, the commercial interests of the Co‑owners in that if the defendant exercised his right of sale under the Mortgage, or foreclosed under the Mortgage, then a stranger to the Co‑owners would become one of the owners of the Landsdale Land. That might, in a commercial sense, make it more difficult for the Co‑owners to sell or develop the Landsdale Land. If, as has happened, the defendant refuses to discharge the Mortgage except on payment of an amount exceeding three twelfths of the amount for which the Co‑owners and the plaintiff have agreed to sell the land, or wish to do so, then again the Co‑owners may be hindered in their intentions to sell the whole of the land, including the plaintiff's interest in it. However, that is a consequence of the defendant acquiring rights under the Mortgage in relation to the plaintiff's share of the Landsdale Land. As Mr Hribar said to the plaintiff: "I've got your share … ". The addition of the words: " … and your share only" do not affect the position. There is nothing in the circumstances pleaded in par 6 or elsewhere in the statement of claim that is arguably capable of giving the words pleaded in par 6.11 the meaning or effect pleaded in par 8.

The Uncertainty Argument

The defendant submits that the matters relied upon by the plaintiff cannot objectively be said to give rise to an enforceable agreement as contended for by the plaintiff in par 8 of the statement of claim when the following matters, which would need to be addressed and agreed upon before an enforceable agreement could be reached, were not even discussed: Does the alleged agreement apply if the plaintiff's share in the Landsdale Land is sold at under value?; Does the agreement only apply if the plaintiff sells his share in the Landsdale Land at market value and if not, for what price?; Does the plaintiff need to obtain a valuation of his share in the Landsdale Land before selling and, if so, by whom?; If there is a dispute between the plaintiff and the defendant about the value for which the plaintiff's share in the Landsdale Land is to be sold, how is such dispute determined, and must it be determined before a contract to sell the plaintiff's share is entered into?; Does the agreement only apply if the sale of the Landsdale Land is at arm's length?; If the plaintiff is in default under the mortgage does the agreement apply?; Does the agreement apply only to a sale by the plaintiff of his share in the Landsdale Land in conjunction with the other registered proprietors of the Landsdale Land or does it also apply to a sale of the plaintiff's share alone? The defendant submits that as there is no pleading of words or conduct agreeing any of those matters it cannot be said that any of these matters were agreed. The alleged agreement is therefore void for uncertainty.
In response, counsel for the plaintiff submitted that the agreement had to be construed in light of the fact that the parties were discussing the value of the land and that the amount of the security was likely to, or might, exceed the value of the land. In those circumstances, counsel submitted, the terms of the oral agreement arising from the words pleaded in par 6.11 of the statement of claim should be construed to refer to a sale of the plaintiff's interest in the Landsdale Land for market value.

The decisions of courts on uncertainty reveal a clear dilemma: the courts are on the one hand reluctant to strike down bargains that people have made in good faith; on the other hand the parties themselves must determine their rights and obligations and it is not for the court to write the agreement for them. Courts, at least in modern times, do their utmost to resolve this dilemma in favour of upholding bargains, particularly when the parties have acted on the basis of the agreement: Seddon N C and Ellinghous M P "Cheshire & Fifoot's Law of Contract" 8th ed Australia at [6.3].
If I had found that the words pleaded at par 6.11 of the statement of claim in the circumstances pleaded were capable of giving rise to the term of the oral agreement pleaded in par 8 then I would not find that the plaintiff's case that the pleaded term is sufficiently certain is unarguable. However, as I have found that the words and circumstances pleaded are not arguably capable of giving rise to the term pleaded in par 8, it is not strictly necessary to decide whether the term is sufficiently certain.

Paragraphs 9.2 and 9.3

The plaintiff submits that the matters relied upon by the plaintiff cannot give rise to the representations contended for by the plaintiff in pars 9.2 and 9.3 of the statement of claim.
I find that the words pleaded in par 6.11 of the statement of claim, in the circumstances pleaded, are not arguably capable of giving rise to the representations pleaded in par 9.2 and 9.3. The words spoken, in the circumstances pleaded, are not capable of giving rise to the representation pleaded in par 9.2, that is that the defendant would do nothing that would affect the interests of the Co‑owners in enforcing its rights under the security for the same reasons I have stated in finding that the term pleaded in par 8 of the statement of claim is not arguably capable of arising.
Paragraph 9.3 pleads that the defendant represented that it would not claim from the plaintiff more than the plaintiff's share of the net proceeds of sale of the Landsdale Land in return for a discharge of any security granted over the plaintiff's share of the Landsdale Land. Such a representation, if true, amounts to a representation that the defendant would not rely upon or enforce one of its rights arising under a mortgage. A mortgagee is obliged to discharge the mortgage upon payment of the amount secured by the mortgage. A mortgagee is not obliged to discharge the mortgage upon payment of a lesser sum, even if the value of the land is less than the amount secured. There is nothing in the words pleaded in par 6.11, or the circumstances pleaded elsewhere in the statement of claim, that arguably make the words pleaded in par 6.11 capable of giving rise to a representation that the defendant would not claim from the plaintiff more than the plaintiff's share of the net proceeds of sale of the Landsdale Land in return for a discharge of the Mortgage.

Paragraph 15

Paragraph 15 of the statement of claim depends upon the plea in par 8 that upon a proper construction of the oral agreement the defendant agreed to discharge the Mortgage in return for payment to it of net proceeds of sale of the plaintiff's share of the Landsdale Land. As I have found that the term pleaded in par 8 is not arguably capable of arising it follows that par 15 of the statement of claim does not disclose any reasonable cause of action.

Paragraph 16

The estoppel pleaded in par 16 depends upon the implied representations pleaded in par 9. I have found that the implied representations pleaded in par 9 are not arguably capable of arising. It follows that par 16 of the statement of claim discloses no reasonable cause of action.

Property Law Act, s 55

The defendant submits that if the above paragraphs are struck out, the plaintiff's entire claim falls away. As the plaintiff's claim would be incapable of remedy it must be struck out finally and judgment entered for the defendant. The plaintiff, however, submits that if paragraphs 8, 9.2, 9.3, 15 and 16 are struck out, the statement of claim should not be struck out in its entirety, as the Court is still empowered by s 55 of the Property Law Act 1969 (WA) ("the PLA") to direct a sale in terms of the relief claimed. Such direction may be made notwithstanding that the defendant does not consent to the sale and it is open to the defendant to plead in its defence that the defendant did not agree to the sale or to discharge the mortgage on receipt of a quarter of the net proceeds of that sale.
The defendant submits that s 55(2) of the PLA does not confer power on the court to order completion of an unconditional contract of sale entered into by the plaintiff and the Co‑owners.
Subsection 55(2) of the PLA provides:
"In an action, whether for closure, or for redemption or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that –
(a)any other person dissents; or
(b)the mortgagee or any person so interested does not appear in the action,
And without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgage property, on such terms, subject to subsection (3) as it thinks fit, including the deposit in court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.
Subsection (3) provides, in effect that the Court may direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them."
The request by the persons specified in the PLA, s 55(2) is the condition precedent to the court's discretionary power arising: Palk v Mortgage Services Funding Plc [1993] Ch 330 considering s 91(2) of the Law of Property Act 1925 (UK) which is in the same terms as the PLA, s 55(2). "The reference to 'any person interested either in the mortgage money or in the right of redemption' merely corresponds with the reference to 'any person entitled to redeem'" in s 55(1): see Tyler, Young and Croft, "Fisher and Lightwood's Law of Mortgage", 2nd ed, Australia [21.15].
In Palk v Mortgage Services Funding Plc (supra) the English Court of Appeal held that s 91(2) of the Law of Property Act 1925 (UK) confers power to make an order for sale on the application of a mortgagor notwithstanding that the proceeds of sale will be insufficient to discharge the mortgage debt.
In Barrett v Halifax Building Society (1995) 28 HLR 634, the plaintiffs had mortgaged their home and then defaulted on their repayment obligations. The situation was one of negative equity – the mortgage debt substantially exceeded the value of their home. The plaintiffs applied to the Chancery Court for an order for sale pursuant to s 91 of the Law of Property Act 1925 (UK). By the time that their action came on for hearing they had negotiated a sale of the property, subject to contract. They sought an order that they be permitted to proceed with that sale and to remain in possession until completion. The mortgagees resisted the orders sought. The court granted the plaintiffs the order they sought. The decision in Barrett v Halifax Building Society (supra) was cited with apparent approval by Phillips LJ in Cheltenham & Gloucester PLC v Krausz [1997] 1 WLR 1558 at 1562 ‑ 1563, although in the same case Millett LJ stated that he had serious doubts whether Barrett v Halifax Building Society was rightly decided. Butler‑Sloss LJ agreed with both Phillips and Millett LLJ as to the final outcome.
It is not unarguable that the court has power under s 55(2) of the PLA to order a sale of the "mortgaged property" that is a sale of the plaintiff's interest in the Landsdale Land. It is not unarguable that the court has power under s 55(2) to direct a sale of the plaintiff's interest in the Landsdale Land in conjunction with the interests of the other Co‑owners. Furthermore, it is not unarguable that the court has power to direct the sale on the terms of the contract made between the plaintiff and the Co‑owners and Stockland made between the plaintiff and the Co‑owners and Stockland. Therefore the plaintiff's claim does disclose a reasonable cause of action and I decline to strike out the statement of claim in its entirety.

Conclusion

For the reasons stated pars 8, 9.2, 9.3, 15, and 16 of the statement of claim will be struck out. However, the plaintiff's claim for relief under s 55(2) of the PLA is not unarguable. Accordingly, the plaintiff will have leave to re‑plead the statement of claim.