Adam Toth Constructions Pty Ltd v Qiming Lu [2022] QDC 132

DISTRICT COURT OF QUEENSLAND CITATION: Adam Toth Constructions Pty Ltd v Qiming Lu [2022] QDC 132 PARTIES: ADAM TOTH CONSTRUCTIONS PTY LTD (ACN 613 632 296) (plaintiff) v QIMING LU (defendant) FILE NO: 1776 of 2020 DIVISION: Civil PROCEEDING: Applications ORIGINATING COURT: District Court DELIVERED ON: 9 June 2022 DELIVERED AT: Brisbane HEARING DATE: 26 April 2022 JUDGE: Dearden DCJ ORDER: (1) Application granted. (2) Order the following paragraphs of the Statement of Claim filed 22 June 2020 be struck out: (a) paragraphs 3 – 8; (b) paragraphs 13 – 16; (c) paragraphs 17 – 23; and (d) paragraphs 24 – 25. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – whether Statement of Claim should be struck out in its entirety – whether specific paragraphs of the Statement of Claim should be struck out, in the alternative PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – FURTHER AND BETTER – whether further and better particulars should be provided in the alternative to striking out -- 1 of 13 -- 2 LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld) rr 149, 157, 161, 171 CASES: Bruce v Odhams Press Ltd [1936] 1 KB 697 Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 NRNQ v MEQ Nickel Pty Ltd [1991] 2 Qd R 592 Saunders v James (1877) 7 Ch B 435 Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209 Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213 Wooton v Sievier [1913] 3 KB 499 COUNSEL: J R Moxon for the defendant/applicant J Basson for the plaintiff/respondent SOLICITORS: 23Legal for the applicant/defendant Rostron Carlyle Rojas Lawyers for the plaintiff/respondent Introduction [1] This is an application by the defendant seeking the following orders:- 1. That pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) and/or alternatively under the inherent power of the court, the Claim and Statement of Claim filed on 22 June 2020 be struck out in its entirety. 2. In the alternative, that, pursuant to r 171 of the UCPR and/or alternatively under the inherent power of the court, the following paragraphs of the Statement of Claim filed on 22 June 2020 be struck out: (1) paragraphs 3 – 8; (2) paragraphs 13 – 16; (3) paragraphs 17 – 23; and (4) paragraphs 24 – 25. 3. In the alternative to points 1 and 2 above, pursuant to r 161 of the UCPR and/or alternatively under the inherent power of the court, the plaintiff provide further and better particulars of the following paragraphs of the Statement of Claim filed on 22 June 2020: (1) paragraphs 3 – 8; -- 2 of 13 -- 3 (2) paragraphs 13 – 16; (3) paragraphs 17 – 23; and (4) paragraphs 24 – 25. 4. Directions for the further conduct of the proceeding. 5. The plaintiff pay the costs of and incidental to this application on the indemnity basis, alternatively on the standard basis. 6. Such further orders or directions as the court deems appropriate. [2] The application is opposed by the respondent/plaintiff. The law – pleadings and particulars [3] UCPR r 149 provides: “149 Statements in pleadings (1) Each pleading must— (a) be as brief as the nature of the case permits; and (b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and (c) state specifically any matter that if not stated specifically may take another party by surprise; and (d) subject to rule 156, state specifically any relief the party claims; and (e) if a claim or defence under an Act is relied on— identify the specific provision under the Act. (2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.”1 [4] UCPR r 157 provides: “157 Particulars in pleading A party must include in a pleading particulars necessary to— (a) define the issues for, and prevent surprise at, the trial; and 1 Uniform Civil Procedure Rules 1999 (Qld) r 149 (‘UCPR’). -- 3 of 13 -- 4 (b) enable the opposite party to plead; and (c) support a matter specifically pleaded under rule 150.”2 [5] UCPR r 161 entitles a party to apply to the court for an order for further and better particulars of the opposite party’s pleading.3 [6] In NRNQ v MEQ Nickel Pty Ltd [1991] 2 Qd R 592, Byrne J stated:- “‘… particulars may require the disclosure of information in such detail as to indicate the mode by which a case may be proved.’; ‘… indicate to the party who asks them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues’ [Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, 241 per Lord Radcliffe]; and further ‘… that particulars will disclose the evidence to be adduced at trial is not of itself a sufficient justification for refusing them: [Wooton v Sievier [1913] 3 KB 499, 503]’.” 4 [7] The function of particulars “… is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial” [Bruce v Odhams Press Ltd [1936] 1 KB 697 [712]-[713] (Scott LJ].5 In Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, Daubney J identified that:- “… one of the specific functions of particulars is to limit the generality of the pleadings” [Saunders v James (1877) 7 Ch B 435].6 Background [8] The essence of the plaintiff’s case is that the defendant, who was an employee of the plaintiff from 7 May 2019 until 2 April 2020, misused confidential information to arrange for sales to the plaintiff’s competitors, and as a result, earned commissions for himself and deprived the plaintiff of a certain amount of profit.7 2 UCPR r 157. 3 Ibid r 161. 4 NRNQ v MEQ Nickel Pty Ltd [1991] 2 Qd R 592, 595. 5 Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209 [35]. 6 Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213 (Daubney J). 7 Exhibit 1 – Submissions of the defendant [12]. -- 4 of 13 -- 5 [9] The defendant identifies the following issues in respect of the plaintiff’s Statement of Claim namely:- 1. In alleging that the defendant had “dealings” with particular “competitors” or “parcels of land,” the plaintiff fails to identify the meaning of the term “dealing,” how the dealing occurred, when it occurred and with whom it occurred; 2. In alleging that the defendant failed to record “leads,” does not define what a “lead” is; 3. Alleges that the defendant acquired and misused confidential information but does not explain what information was acquired or misused, how the information was confidential and the source of the obligation (whether in equity or in contract); and 4. Alleges improper use of the defendant’s position with the plaintiff, without explaining how he did so in a way that was “improper.”8 [10] In addition, the defendant identifies that the damages sought for loss of opportunity and reputational damage are not quantified, nor is the calculation process particularised, and that the plaintiff seeks to reserve the right to quantify loss after disclosure and delivery of an expert report (which was to have been filed and served by 22 October 2021) but which has still not been provided.9 [11] The defendant also submits that the further and better particulars delivered by the plaintiff on 28 January 2022,10 fails to indicate the mode by which the case will be proved, fails to identify how the plaintiff will quantify its loss, and does not set out the whole of the plaintiff’s case.11 [12] It should be noted that the plaintiff indicates that it has given disclosure; provided further and better particulars; provided supplementary disclosure; obtained and enforced a series of costs orders; engaged an expert to prepare an expert report, going to the issue of quantum of damages suffered by the plaintiff; and proposed to mediate the proceedings.12 8 Exhibit 1 – Submissions of defendant [13]. 9 Order by consent dated 27 August 2021. 10 Further and Better Particulars of the Statement of Claim filed 28 January 2022. 11 Exhibit 1 – Submissions of the defendant [16]. 12 Exhibit 2 – Plaintiff’s submissions [10]. -- 5 of 13 -- 6 [13] The plaintiff notes that the defendant has filed three amended defences; but despite this, asserts that the plaintiff remains completely unaware of the basis upon which the defendant intends to admit the claims, given that only paragraphs 1, 2 and 9-12 of the Statement of Claim have been admitted; has provided disclosure; paid some but not all of the costs orders; and has refused, to date, to participate in mediation but has also declined, to date, to file a Fourth Defence.13 [14] The plaintiff submits that its pleadings are clear, simple, uncomplicated and supported by evidence; sets out the basis for the relief sought; that it has provided extensive further and better particulars and disclosure; that the defendant remains free to file a Fourth Amended Defence; but that it remains unclear as to what basis the defendant intends to defend the proceedings; and states that the expert report (although still not provided) may allow the plaintiff to amend its Statement of Claim and therefore enable the defendant to file a Fourth Defence. [15] The plaintiff submits, accordingly, that its pleadings do not offend UCPR r 171.14 Defendant’s submissions in respect of the pleadings [16] By reference to the specific paragraphs of the Statement of Claim (‘SOC’)15 and the Further and Better Particulars (‘FBP’),16 the defendant identifies what he submits are the defects in the pleadings as set out in the following paragraphs.17 Paragraph 3 SOC; paragraph 1(b) FBP [17] Paragraph 3 SOC, pleads that during his employment with the plaintiff, the defendant “had dealings with other industry stakeholders” and identifies a specific item of correspondence between the defendant and a named person, but does not otherwise identify what the dealings are, when they occurred or with whom they are said to have occurred. Paragraph 1(b) FBP pleads that the “dealings” occurred during the period that the defendant was employed by the plaintiff (7 May 2019 to 2 April 2020) but then states, “further particulars will be provided following disclosure and/or non- party disclosure.” 13 Exhibit 2 – Plaintiff’s submissions [10]. 14 Ibid [11]-[12]. 15 Claim and Statement of Claim filed 22 June 2020. 16 Further and Better Particulars of the Statement of Claim filed 28 January 2022. 17 Exhibit 1 – Submissions of the defendant [17]-[47]. -- 6 of 13 -- 7 [18] As the defendant submits, disclosure has now been completed, but it appears that the plaintiff either cannot or will not identify the relevant “dealings.” Paragraph 3 SOC; paragraph 1(c) FBP [19] The plaintiff was asked to particularise how each dealing occurred (i.e. orally, in writing or a combination) and the plaintiff’s response was to identify that “the dealings were (at least) in writing.” [20] In that respect the defendant submits, firstly, that the plaintiff has not responded to the request for particularisation, in that it is unable to specify the relevant documents constituting the writing, and the use of the qualifier “at least” appears to indicate that the plaintiff has not set out its case in full, as is required. The brief submission is that the pleadings should identify for the defendant what he is said to have done and the combination of the pleadings and the further and better particulars fails to provide that information. Paragraph 3 SOC, paragraph 1(e) FBP [21] The plaintiff was requested to particularise the detail of any oral dealings, but states only that “further particulars will be provided following disclosure and/or non-party disclosure.”18 [22] The defendant’s submission is that, despite disclosure occurring, the plaintiff has been unable to particularise its case on this issue. Paragraph 3 SOC, paragraphs 1(g) & (h) FBP [23] The plaintiff was requested to identify the “other industry stakeholders” and “competitors” whom it pleads the defendant dealt with, and while identifying a number of “industry stakeholders” and “competitors” at paragraph (1)(g) and (h) FBP, respectively, prefaced each paragraph with “at this juncture.” The defendant submits, and I accept, that this appears to indicate that the plaintiff has only identified some of the stakeholders and competitors at this stage, despite disclosure having been completed. In those circumstances, it is submitted that the defendant is unable to prepare for trial without the full detail of the plaintiff’s case. 18 Further and Better Particulars of the Statement of Claim filed 28 January 2022 (1)(e). -- 7 of 13 -- 8 Paragraph 4(a) SOC, paragraph 2(a) FBP [24] The plaintiff was requested to identify what it meant by the term “dealings” and repeated its response set out in paragraph 1(a) FBP namely: “The term ‘dealings’ means the relationships, contact and association that the defendant had with other industry stakeholders (including those parties pleaded in paragraph 14 of the Statement of Claim) in an attempt to broker sales to the plaintiff’s competitors, to gain an advantage for the defendant, or someone else, or cause detriment to the plaintiff.” [25] The defendant’s submission is that despite the reliance by the plaintiff on this explanation of the term “dealings,” it fails to particularise with precision what the relevant dealings by the defendant were, and with which “industry stakeholders” and “competitors.” Paragraph 4(a) SOC, paragraph 2(b) FBP [26] The plaintiff was requested to identify when certain dealings had occurred and the response was to say that dealings included occurred on dates “including but not limited to” certain identified dates in respect of one particular development (the Kuraby development). However, in using the term “included but not limited to” it is submitted, and I accept, that the plaintiff is implying that there were other unspecified dealings by the defendant. A failure to identify all the dealings would, it is submitted by the defendant, result in a surprise at trial if dealings other than those identified in paragraph 2(b) FBP were the subject of evidence at trial. Paragraph 4(a) SOC, paragraph 2(c) FBP [27] The plaintiff was requested to identify whether dealings occurred orally, in writing or a combination of both and the response was that the plaintiff was aware of “certain written dealings “at this juncture.” As previously identified, the defendant submits that given disclosure has occurred, it is unacceptable not to identify specifically all dealings on which the plaintiff wishes to rely, including details of how, when and where they occurred. -- 8 of 13 -- 9 Paragraphs 4(b)-(d) SOC, paragraphs 3-5 FBP [28] The defendant points out that paragraphs 3-5 FBP address paragraphs 4(b)-(d) SOC, which are in relevantly identical terms to paragraph 2, and repeats and relies on the criticisms that are made in respect of paragraph 2. Paragraphs 5(a)-(d) SOC, paragraphs 6-9 FBP [29] In similar terms, paragraphs 6-9 FBP, address paragraphs 5(a)-(d) SOC, which is in the same terms as paragraph 4, and the defendant repeats and relies on what it identifies as the relevant flaws in respect of paragraph 4. Paragraph 6 SOC, paragraph 10 FBP [30] In paragraph 6 SOC, the plaintiff alleges that the defendant had “dealings” with a particular parcel of land but fails completely to particularise anything with respect to those dealings. When requested to particularise the dealings, the plaintiff repeats paragraph 1 FBP which variously states that further particulars would be provided “following disclosure” and identified what the plaintiff was aware of “at this juncture” and then sets out that dealings occurred on certain dates, including “but not limited to” those specified in the FBP and further that it was aware of certain written dealings “at this juncture.” The repeated use of undefined terms and/or terms which indicate not all particulars are being provided, leads to a conclusion, the defendant submits, that what has been provided is insufficient to fulfill the function of particulars in setting out to the defendant what the whole of the case is against him and does nothing to prevent surprise at trial and to allow the defendant to call evidence relevant to the case against him. Paragraph 8 SOC; paragraph 11 FBP [31] The plaintiff in paragraph 8 SOC alleges that the defendant failed to record and follow “leads.” It came to the display home, and that the plaintiff failed to not refer clients to competitors or promote competitors of the plaintiff. [32] In the defendant’s request for particulars, the plaintiff was asked to identify:- 1. What it meant by “following a lead”; 2. What “leads” had not been recorded or followed; 3. Which clients of the plaintiff the defendant referred; and -- 9 of 13 -- 10 4. Which competitors the defendant “promoted.”19 [33] The response in the FBP was to rely on paragraph 7 SOC which identifies the various aspects of the plaintiff’s employment duties, but does not identify what the plaintiff asserts is a “lead” or any conduct of the defendant; then identifies “at a minimum” some 29 “leads” but again fails to identify whether that is the whole of the plaintiff’s case; and then states further that the plaintiff was aware of certain “industry stakeholders” and/or “competitors” who the defendant had promoted “at this juncture,” which is again a use of a qualifier which, the defendant submits, fails to identify to the defendant the whole of the plaintiff’s case. Paragraphs 13 and 14 SOC, paragraphs 12 and 13 FBP [34] The defendant identifies that the core of the plaintiff’s case against the defendant is the misuse of confidential information, which is pleaded at paragraphs 13 and 14 SOC. The plaintiff, at paragraphs 12 and 13 FBP, assert that paragraphs 10-15 SOC “fully particularise” the confidential information acquired by the plaintiff. However, as the defendant submits, paragraph 10 SOC sets out a contractual definition of “confidential information” but does not identify any such information; paragraph 11 SOC sets out the defendant’s contractual obligations with respect to “confidential information” but does not define any such information; paragraph 12 SOC refers to an email to the defendant dated 2 April 2020 asserting that “clients and leads” with the plaintiff’s “property” but that does not identify, it is submitted, “information” nor explain why it is confidential; paragraph 13 SOC is an assertion that the defendant had acquired confidential information; paragraph 14 SOC asserts that the defendant misused confidential information, sets out various conduct and correspondence of the defendant but fails to explain why any of the information is “confidential,” and paragraph 15 SOC refers to a “volume of emails” from the defendant’s work email to his private email but does not particularise the relevant emails, nor explain why they are asserted to be “confidential,” nor does SOC paragraph 15 particularise what the defendant sent to his private account and what he deleted. [35] The defendant’s fundamental submission is that the plaintiff has failed to identify with any particularity, in respect of its claims for breach of contract, breach of 19 Exhibit 1 – Submissions of the defendant [38]. -- 10 of 13 -- 11 statutory duty and breach of fiduciary duty, how the defendant has misused “confidential information” without actually defining that term. Paragraph 16 SOC, paragraph 14 FBP [36] The plaintiff alleges at paragraph 16 SOC that the defendant has been “brokering deals for [the plaintiff’s] competitors” for a personal commission and disclosed “proprietary confidential information,” and in its response the plaintiff again uses the term “at this juncture” repeatedly. The defendant’s submission, as he submits in respect of other examples of the use of this term throughout the plaintiff’s pleadings, is that the plaintiff has failed to particularise all of its case. Paragraph 19 SOC; paragraph 15 FBP [37] Paragraph 19 SOC alleges the misuse of confidential information in connection with an allegation of breach of statutory or fiduciary duty but again fails to define “confidential information” and fails to fully particularise the relevant confidential information. The defendant again repeats and relies on his argument in respect of paragraphs 13 and 14 SOC, paragraphs 12 and 13 FBP. Paragraph 21 SOC; paragraph 16(f) FBP [38] The plaintiff alleges that the defendant misused confidential information for the purpose of gaining an advantage for his own or someone else’s benefit, but when requested to particularise the advantage, the plaintiff uses the qualifier “at this juncture” and states only that the advantage was “monetary compensation” for an amount that the plaintiff was unable to particularise. Again, given that disclosure has been completed, the plaintiff should at this stage be in a position to particularise this aspect of its claim. Paragraph 24 SOC; paragraph 18 FBP [39] In paragraph 24 SOC, the plaintiff alleges unspecified “loss and damage” for breaches of contract, statutory duty and/or equitable duty, but on the defendant’s request for further particulars, indicates that it is unable to particularise without the provision of an expert report. To date, that expert report, which was due to be provided by 22 October 2021, has still not been provided.20 20 Order by consent dated 27 August 2021. -- 11 of 13 -- 12 Discussion [40] The defendant’s fundamental submission, in light of the particular matters, identified at length above, is that, as the pleadings currently stand, even with the provision of the further and better particulars, the defendant has not been appraised of the whole of the case that he has to meet, and key portions of the plaintiff’s case remain either wholly or partly undefined. In those circumstances, the defendant’s submission is that the pleadings, in its current state, “has a tendency to prejudice or delay the fair trial at the proceeding,”21 and would inevitably result in surprise at trial. Consequently, the pleadings should be struck out. [41] In my view, the plaintiff has failed to adequately particularise its case, despite disclosure having been completed and despite the proceedings having been on foot since 22 June 2020. I accept the defendant’s submissions as summarised at paragraphs [18]-[19] above. In each case, the plaintiff has failed to appropriately articulate a case through either its SOC and/or FBP, that the defendant can seek to meet, and to which he will not be taken by surprise at trial. I am satisfied that the current state of the plaintiff’s pleadings does have a tendency to prejudice or delay the fair trial of the proceeding. Given my conclusion, the appropriate step would be to strike out paragraphs 3-6, 8, 13-16, 19-23 and 24 of the Statement of Claim. What will then be necessary is to provide a time frame for the plaintiff to file and serve an Amended Statement of Claim, preceded by the plaintiff providing any expert evidence; a time frame for the defendant to then file and serve a Further Amended Defence; the plaintiff to serve an Amended Reply and Answer, if any; and a time frame to make any further or additional disclosure. [42] The parties have indicated a willingness to participate in mediation and the terms of that mediation and a time frame for those steps should also be specified in a consequential order as a result of the delivery of these reasons. Order [43] I make the following orders: (1) Application granted. 21 UCPR r 171(1)(b). -- 12 of 13 -- 13 (2) Order the following paragraphs of the Statement of Claim filed 22 June 2020 be struck out: (a) paragraphs 3 – 8; (b) paragraphs 13 – 16; (c) paragraphs 17 – 23; and (d) paragraphs 24 – 25. [44] I will hear the parties on the further terms of the order to reflect steps and time frames in filing the amended pleadings, provision of expert reports and referral to mediation. [45] I will also hear the parties as to costs -- 13 of 13 --