Allvend Industries Pty Ltd v Hoverd Industries Ltd [1996] QSC 111

.6 o,1- Sc qjJ1,1 A2,; State Reporting ureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) :-,.-, . SUPREME COURT OF QUEENSLAND de JERSEY J Writ No 404 of 1995 ALLVEND INDUSTRIES PTY LTD and HOVERD INDUSTRIES LIMITED BRISBANE .. DATE 20/06/96 ORDER permission. 1 RE\/\SED COPIES ISSUED S~ate f1epoiting Bureau ,_pate ~-:/-- l, / ~ Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3227 4360. Facsimile: (07) 3227 553_2 -- 1 of 5 -- 200696 D.1 T4/LAM M/T 857/96 (de Jersey J) HIS HONOUR: This is an application on the part of the defendant to strike out paragraphs in the amended statement of claim. ·As the matt:er has I be'~n developed. h~re today, the application has become really one focusing on the inadequacy of the pleading and certain particulars which have been delivered. The end point to which I have come is that I am persuaded that the plaintiff should be required to deliver an amended statement of claim and amended particulars. It may help if I mention most of the points which were agitated orally and I might say in fairness'·to Mr Bain that did not cover of the matters to which he referred in his outl:i:ne, although I indicated my attitude to those other matters to him during the argument and asked him to focus on the particularly significant matters. The first point which was raised concerned whether the plaintiff should be required to particularise with relation to the agreement set out in paragraph 4 of the amended statement of claim, the place of conclusion of the agreement and the last event which is said to have crystallised the agreement. This is not relevant to jurisdiction but it may be relevant to defining what is the proper law to be applied with relation to the breach of contract case. I am satisfied that both of those events should be particularised. 2 ORDER 10 20 30 40 50 60 -- 2 of 5 -- 200696 D.1 T4/LAM M/T 857/96 (·de Jersey J) The second matter concerned the question whether the special circumstances warranting the conclus'ion that the failure to correct earlier made i"reJ;:)resentations had significance should be specified. I am 1 satisfied that that is not required here; · that on the pleading'~ it 1srtfffcient!y emerges that it I was the circumstance of the translation of the parties, in effect, from New Zealand to Australia, and their failure to correct the representations made in New Zealand in the new geographical and legal environment which is said to have made that failure significant, and Mr Bain, I am sure, would understand the matter in that way. But in ·fhe course of the discussion on that:·topic, it did• emerge that some of the representations which have been pleaded were made after the agreement was concluded. It does seem to me that they are not relevant and should be excluded in the revamped pleading, and Mr Campbell did accept that in so far as representations preceding the agreement had been pleaded, their significance in relation to the Trade Practices claim lay only in their not having been corrected, when as I say, the parties were - for a time anyway - translated to the different environment in Australia. 3 ORDER 10 20 30 40 50 60 -- 3 of 5 -- 200696 D.1 T4/LAM M/T 857/96 (-de Jersey J) The next point which was debated concerned whether particulars of the engagement in trade and comme'rce alleged in paragraph 2 (e) and the carrying::,o:n of business w.ithin Australia alleged in paragraph 2(f) sHould be provided. Mr Campbell indicated that It was 1 the Atistrali!an activity.evident' in'a number of respects from the statement of claim itself upon which the plaintiff relied. It might be helpful in the redrafting of the pleading to make that clear. As to paragraph 8(b), there was a suggestion from Mr Bain that the basis for the implication should be specified. I gather that was accepted and the response was to refer to the practici within the industry. There was a ·quarrel about that on the basis that the industry had not been defined and that the particular practice had not been specified and so on. Mr Campbell's response was that really the agreement itself, in referring to development within a particular geographical area, should be seen as giving rise on its proper construction to the point raised in paragraph 8(b). Mr Bain's response to that was the obvious one; well, if that is why talk about an implied rather than an express provision. I agree with that too, and attention might be given to that in the redrafting. The next point concerned the references to the Fair Trading Act. Mr Campbell accepted that paragraph 29 should really plead the factual basis for the application of that Act. That is why the plaintiff should be regarded as a consumer within the meaning of section 6. 4 ORDER 10 20 30 40 50 60 -- 4 of 5 -- ' 200696 D.1 T4/LAM M/T 857/96 ('de Jersey J) As to paragraph 18, which raised the negligence claim, it does seem to me to be rather bare to plead the existence of the duty of care in thi&i~ay 1 particularly in a case where one would primarily thirik anyway that the relationship between the · parties wafi 'contrkctlial ,1 Subject, ! ' ;• I su~pos~, lo the ~tatutory,· embellishments which arise through the Trade Practices Act and so on. It might again though be helpful if Mr Campbell were to give some precise consideration to the basis upon which a duty of care could be said independently to arise with relation, I suppose, to those pure economic loss type cases. The final point agitated concerned an absence of specification of the ·i'naccuracy in the representation set'.· out in paragraph 21 of the statement of claim. I am however satisfied that thatimatter is sufficiently covered by paragraph 27 of the statement of claim, so I do not think any particular attention needs to be given to that. I will order that the plaintiff deliver an amended statement of claim by 3 July 1996 and amended particulars thereof on the same day. HIS HONOUR: On each summons, the plaintiff to pay one half of the defendant's taxed costs. 5 ORDER 10 20 30 40 50 60 -- 5 of 5 --