Zipside P/L & Ors v Anscor P/L - [1999] QSC 236

IN THE SUPREME COURT
OF QUEENSLAND

No. 4997 of 1999
Brisbane

Before Mr Justice Muir
[Zipside P/L & Ors v Anscor P/L & Ors]

BETWEEN:   ZIPSIDE PTY LTD (ACN 010 845 093)
  First Plaintiff
AND:             AUSTRALIA-PACIFIC HOLDINGS PTY LTD
(ACN 011 065 133)
Second Plaintiff

AND: MANBURY PTY LTD (ACN 010 925 274)
AS TRUSTEE FOR THE WILSON PENSION FUND
Third Plaintiff

AND:             ANSCOR PTY LTD (ACN 065 255 505)
  First Defendant
AND:             ROBERT EDWARD CORBETT
Second Defendant

AND: ANNE SHIRLEY CORBETT
Third Defendant

REASONS FOR JUDGMENT - MUIR J
Judgment delivered 1 October 1999

CATCHWORDS: PRACTICE - statement of claim - application to strike out certain paragraphs - whether confusion and imprecision enough to warrant re-pleading - requirement to plead necessary facts and elements of ss 51A and 75B of the Trade Practices Act not met - pleadings prejudicial to defendants - insufficient particularity - inability to cure deficiency in pleadings by particulars - respondents given leave to re‑plead.

Counsel:Mr R G Bain QC for the plaintiffs
Mr D R Cooper for the respondents

Solicitors:Tucker & Associates for the plaintiffs
Shand Taylor for the respondents

Hearing Date: 28 September 1999
IN THE SUPREME COURT
OF QUEENSLAND

No. 4997 of 1999
Brisbane

Before Mr Justice Muir
[Zipside P/L & Ors v Anscor P/L & Ors]

BETWEEN:   ZIPSIDE PTY LTD (ACN 010 845 093)
  First Plaintiff
AND:             AUSTRALIA-PACIFIC HOLDINGS PTY LTD
(ACN 011 065 133)
Second Plaintiff

AND: MANBURY PTY LTD (ACN 010 925 274)
AS TRUSTEE FOR THE WILSON PENSION FUND
Third Plaintiff

AND:             ANSCOR PTY LTD (ACN 065 255 505)
  First Defendant
AND:             ROBERT EDWARD CORBETT
Second Defendant

AND: ANNE SHIRLEY CORBETT
Third Defendant

REASONS FOR JUDGMENT - MUIR J
Judgment delivered 1 October 1999

The first, second and third defendants apply to strike out paragraphs 14, 19 and 20A of the further amended statement of claim delivered 1 March 1999. It is submitted that paragraph 14 “is inadequate and embarrassing for a number of reasons” -
·It is unclear insofar as it alleges that “most of the moneys raised by the Wattle Group were not advanced by way of short term bridging finance, but rather:” (the paragraph then lists a variety of ways in which moneys were alleged to have been lent).
·The allegations are “internally contradictory and vague” in that paragraph 14(a) refers to moneys being lent “without security” in some circumstances and “with security to some of the same companies” in other circumstances.
·The allegations lack temporal definition. This problem is highlighted as there is uncontradicted evidence that some of the companies the subject of the allegations were not in existence at the time of the representations.
In order to understand the nature of the allegations it is necessary to go to paragraph 4A which contains the following alleged representations:
“(a)that the Wattle Group lent money for short periods of no more than sixty (60) days;
(b)that the Wattle Group took satisfactory security or surety to ensure repayment of the moneys lent by it;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] QSC 236
Decision Date: 1 October 1999

CaseChat Overview and Summary

The defendants in the matter of Zipside P/L & Ors v Anscor P/L & Ors have applied to the Supreme Court of Queensland to have certain paragraphs of the plaintiffs' statement of claim struck out. The plaintiffs, including Zipside P/L, Australia-Pacific Holdings PTY LTD, and Manbury PTY LTD as trustee for the Wilson Pension Fund, have sued the defendants, Anscor PTY LTD, Robert Edward Corbett, and Anne Shirley Corbett, for various breaches of the Trade Practices Act. The defendants claim that the plaintiffs' allegations are vague, imprecise, and lack the necessary particularity to allow for a fair trial.

The court must decide whether the plaintiffs' pleadings are sufficient to allow the case to proceed. Specifically, the court must determine if the plaintiffs have adequately pleaded the elements of the sections of the Trade Practices Act they are relying on and if their pleadings are sufficiently particularised to allow the defendants to prepare a proper defence.

The court found that the plaintiffs' pleadings were indeed defective. The allegations were vague, imprecise, and lacked the necessary particularity to allow the defendants to properly respond. The court noted that the pleadings were also confusing and did not clearly identify the case that the defendants must meet. The court held that the plaintiffs' pleadings were prejudicial to the defendants and did not fulfil their proper role of clearly identifying the case which the defendants must meet and of defining the question or questions for decision. The court granted the defendants' application to strike out certain paragraphs of the plaintiffs' statement of claim and allowed the defendants leave to re-plead. The court emphasised the importance of particularity in pleadings, especially in cases involving allegations of fraud and misconduct.

Orders