Commonwealth Bank of Australia v Hulston & Anor [1993] QCA 184

THE COURT OF APPEAL [1993] QCA 184 SUPREME COURT OF QUEENSLAND Appeal No.262 of 1992 Brisbane Before The President Mr Justice McPherson Mr Justice de Jersey [Hulston v. Commonwealth Bank of Australia] BETWEEN: COMMONWEALTH BANK OF AUSTRALIA Respondent/Plaintiff - and - SYDNEY BYNG HULSTON and MARGARET ELEANOR HULSTON Appellant/Defendants BY ORIGINAL ACTION - and - SYDNEY BYNG HULSTON and MARGARET ELEANOR HULSTON Appellant/First Defendants - and - BARVALE PTY. LTD. Second Plaintiff - and - COMMONWEALTH BANK OF AUSTRALIA Respondent/First Defendant - and - PATRICK FRANCIS DONOGHUE Second Defendant - and - EDGETON PTY. LTD. Third Defendant -- 1 of 18 -- 2 JUDGMENT - THE PRESIDENT Judgment delivered 27/05/93 The judgment of McPherson JA. and de Jersey J. sets out the circumstances giving rise to this appeal. The respondent's application to strike out paragraphs of the appellants' Defence and Counter-Claim was based not only on an asserted want of particularity but also on the ground that the pleading is embarrassing (R.S.C. O.22 rule 32). While I agree with the majority that the lack of the particulars requested would not of itself justify striking out, the question whether the Defence and Counterclaim is embarrassing raises additional considerations. It is necessary to answer that question in the context of the respondent's claim in the action against the appellants and the use of the appellants' Defence and Counter-Claim to raise issues which delay the respondent from judgment on its claim. The action was commenced by the respondent by a specially endorsed writ issued on 17 April 1991. The Statement of Claim on the writ asserts that, on 26 July 1990, the respondent demanded $2,879,786.31, being the amount then owing for principal and interest under a mortgage from the appellants to the respondent dated 26 September 1988. It is further alleged in the writ that the appellants are in default and that the respondent has demanded possession of the property the subject of the mortgage but that the appellants have refused possession, which is claimed by the writ. The appellants' Defence puts most of these matters in issue, but it is reasonable to suppose that, but for the appellants' Counter-Claim, the action could be determined relatively quickly and cheaply. However, the appellants' Defence relies on the matters set out in its Counter-Claim to "set off so much of the damages claimed ... as is necessary to extinguish any liability ... under the mortgage". In these circumstances, the respondent is entitled to be provided with a properly pleaded Counter-Claim which alleges clearly a sufficient basis for the set-off which is pleaded. For this purpose, adequate information is required not only as to the events relied on but when they occurred, what losses were incurred, which losses are related to which events, and which were sustained by the appellants as distinct from their company, Barvale Pty. Ltd., the second plaintiff to the Counter-Claim against which no relief is sought by the respondent in the action so that no question of a set-off arises. The contrary approach is adopted by the appellants, who intermingle allegations against the respondent with allegations against other parties (Patrick Frances Donoghue and Edgeton -- 2 of 18 -- 3 Pty. Ltd. which are joined as defendants to the Counter-Claim), omit details as to the chronology of events, and generalise the allegations which they make as to loss, both in relation to the loss incurred, what caused it and the identity of the party by whom or which it was incurred. For example, paragraphs 37 and 39 of the Counter-Claim provide: "37. By reason of each of the representations alleged in paragraphs 10, 14, 18, 19, 20, 21, 24, 26, 27 and 28 herein the Hulstons and Barvale have suffered loss. ... 39. The conduct of the Bank, Donoghue and Edgeton herein alleged and each of them was conduct: (a) In trade or commerce; (b) In breach of s.52 of the Trade Practices Act;" An analysis of the earlier paragraphs, a number of which are referred to in paragraph 37, reinforces the view that the Counter-Claim fails sufficiently to plead the case against the respondent relied on by the appellants. (a) Nowhere in the Counter-Claim is any attempt made to quantify the appellants' loss or the loss of Barvale Pty. Ltd. (b) Paragraphs 10 to 13 of the Counter-Claim raise no allegations against the respondent but are concerned with transactions between the appellants, Barvale, Donoghue and Edgeton, apparently before any involvement of the respondent. (c) Paragraph 16 of the Counter-Claim alleges a further transaction to which the respondent was not a party, namely, the engagement of a builder on 10 October 1988 by Donoghue on behalf of Barvale and Edgeton and the commencement of construction work by the builder. (d) Paragraphs 14, 15 and 17 imply but do not assert that representations allegedly made by the respondent "In or about October 1988" induced Barvale and the appellants to enter that transaction. In fact, the appellants acknowledge that they do not know when, in October 1988, the alleged representations were made and cannot establish that they were made prior to 10 October. This is potentially of considerable importance since, if the earliest representations alleged against the respondent were not made on or before 10 October 1988, the appellants (or Barvale) was committed to proceeding with the material project prior to any involvement by the respondent. The significance of this lies in the -- 3 of 18 -- 4 circumstance that, according to the appellants, it was later representations by the respondent (paras.18, 19, 20) which caused "the Plaintiffs", (without distinguishing between the appellants and Barvale) "to continue with the joint venture" (para.22). The importance of the need for proper details of this aspect of the appellants' case is further emphasised by paragraph 34, which asserts, completely out of chronological order, that the mortgage upon which the respondent relies was given to the respondent by the appellants on or about 26 September 1988; that is, before the earliest involvement of the respondent in any conduct relied upon against it in the Counter-Claim. (e) Paragraphs 22 and 23 are based not only on alleged representations by the respondent (paras. 18, 19 and 20) but on representations by Donoghue "on his own behalf and on behalf of Edgeton" (para. 21). No distinction is drawn between the representations attributed to the respondent and those for which it is not alleged to be responsible. (f) Further, no attempt is made to demonstrate how the appellants, as distinct from Barvale, might have sustained loss. (g) Further series of representations and reliance are alleged against the respondent by paragraphs 24 and 25, 26 and 27, and 28 and 29. All such representations are alleged to have been misleading and deceptive (and the advice contained therein is alleged to have been negligent) by paragraph 30. No distinction is permitted to be drawn between the appellants and their company, Barvale, by those paragraphs. (h) By contrast, paragraphs 31 and 35 relate to a security given to the respondent by Barvale and paragraphs 32, 33 and 35 relate to other securities given to the respondent by the appellants while paragraph 36 relates to actions taken by the respondent on those securities. No allegation of wrongdoing by the respondent in respect of those matters is made anywhere in the Counter-Claim. No reasons for his decision were given by the primary judge, but there seems to me ample basis for a conclusion that the Counter-Claim is embarrassing. While it is unclear that the correct paragraphs were ordered to be struck out, it is plain to my mind that the appellants ought be required to replead. I would extend the time limited for that purpose for a further 28 days but otherwise dismiss the appeal and order the appellants to pay the respondent's costs, to be taxed. -- 4 of 18 -- 5 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 262 of 1992 Brisbane BETWEEN: COMMONWEALTH BANK OF AUSTRALIA Respondent/Plaintiff AND: SYDNEY BYNG HULSTON and MARGARET ELEANOR HULSTON Appellant/Defendants BY ORIGINAL ACTION AND: SYDNEY BYNG HULSTON and MARGARET ELEANOR HULSTON Appellant/First Plaintiffs AND: BARVALE PTY LTD Second Plaintiff AND: COMMONWEALTH BANK OF AUSTRALIA Respondent/First Defendant AND: PATRICK FRANCIS DONOGHUE Second Defendant AND: EDGETON PTY LTD Third Defendant JUDGMENT - McPherson J.A. and de JERSEY J. Delivered the 27th day of May, 1993 The respondent issued a specially endorsed writ on 17th April, 1991 claiming recovery of possession of land as mortgagee, the appellants having defaulted in payments due under the mortgage. The appellants delivered a defence and counterclaim on 29th May, 1992. On -- 5 of 18 -- 6 17th June, 1992 the solicitor for the respondent sought further and better particulars of certain allegations in the counterclaim. The appellants provided particulars on 1st September, 1992. Not being satisfied with those particulars, the respondent sought further particulars, by a notice delivered on 22nd October, 1992. The appellants provided a further set of particulars in November, 1992. The respondent, still dissatisfied with the particulars, applied to the court for an order that the relevant paragraphs of the defence and counterclaim be struck out. On 3rd December, 1992 the Chamber Judge ordered that paras. 9(e) (wrongly referred to in the order as 9(3)), 10(a), 10(b), 11, 14(a), 14(b), 18, 19, 23, 24, 26, 27, 28 and 30 of the defence and counterclaim be struck out, and that the appellants have leave to deliver an amended defence and counterclaim by 25th January, 1993. He also ordered the appellants to pay the costs of the application. The appellants appeal against those orders, contending in the notice of appeal that there was no ground to justify striking out those paragraphs. It is helpful to set out those parts of the counterclaim. The appellants allege that their company Barvale Pty Ltd and Edgeton Pty Ltd, the company of a Mr Donoghue, agreed jointly to develop land at the Gold Coast, for the construction of town houses. Under that agreement, "Donoghue would manage the project and provide the necessary expertise and co-ordination of consultants and other contractors" (para. 9(e) defence and counterclaim). They allege that Barvale was induced to enter into the agreement by representations made by Edgeton through Mr Donoghue, that (para. 10): "(a) Donoghue had the necessary skill, expertise and experience to successfully and properly manage and/or control the carrying out of the development proposed to its completion; (b) In the event that Barvale purchased the land, Donoghue was able to and would provide his expertise to successfully and properly manage and/or control the carrying out of the development proposed to its completion; -- 6 of 18 -- 7 (c) In the event that Barvale purchased the land Donoghue had the ability to cause Edgeton to provide toward the cost of carrying out the development proposed cash and/or bank guarantees in the sum of $280,000 being half the cost of the land." The appellants allege (para. 11) that: "The said representations were misleading or deceptive in that neither Donoghue nor Edgeton had the skill expertise or experience represented or the capacity to provide cash or bank guarantees to the extent represented or alternatively neither Donoghue nor Barvale then intended to provide the cash or bank guarantees represented." The pleading goes on to allege that Barvale purchased the land, and that following failure to provide the cash or a bank guarantee, it became entitled to terminate the agreement (para. 13). It did not do so, however, because of certain representations. They were (para. 14): "14. In or about October 1988 the bank by Lowe at the bank's Broadbeach branch orally represented to Barvale and Mr and Mrs Hulston by Mr Hulston that: (a) Donoghue and/or Edgeton had sufficient assets or cash to meet their obligations under the agreement; (b) The assets and/or security required by the joint venture agreement to be provided by Donoghue and/or Edgeton would be provided in accordance with the joint venture agreement." The appellants allege that those representations were misleading. Further representations are then alleged in para. 18, as follows: "18. On or about 27th October, 1988, Donoghue in the presence of Lowe orally represented to Mr Hulston by telephone that: (a) The requirement for Donoghue and/or Edgeton to provide the cash and/or bank guarantees in relation to the sum of $280,000 above had been met; (b) Lowe was prepared on behalf of the bank and Donoghue and Edgeton to assure Mr and Mrs Hulston and Barvale of the truth of the representation referred to in sub-para. (a) above." And in para. 19: "19. Immediately following the representation by Donoghue referred to in the preceding paragraph and in the course of the said telephone attendance Lowe represented orally and by telephone to Mr Hulston that: -- 7 of 18 -- 8 (a) Donoghue was a man of substance; (b) Donoghue had the necessary funds and/or assets to finance his and/or Edgeton's part of the joint venture; (c) Donoghue's funds and/or assets would be available to satisfy his and/or Edgeton's obligations under the joint venture agreement by the following Monday or Tuesday." The appellants allege that they elected to continue with the joint venture in reliance on those representations. They were however misleading and deceptive, as alleged in para. 23: "(a) The obligations of Donoghue and/or Edgeton to provide cash and/or bank guarantees had not been and were not subsequently met; (b) Neither Lowe nor the bank had any reasonable grounds for believing that such obligation would be met or could be met at any or any particular time in the future." Further representations are then alleged against the respondent, in para. 24: "Between on or about the 16th November 1988 and 21st November 1988 inclusive, the bank represented to the Hulstons and Barvale that there was no need for Edgeton's continued participation in the joint venture, because: (a) The Hulstons and Barvale were providing all the security the bank required; and (b) The bank could provide from its own servants or agents someone with the necessary skill to replace Donoghue." And by the respondent's officer Healey, in para. 26: "On one or more occasions between 21st November 1988 and 6th December 1988 Healey represented orally to Mr and Mrs Hulston and Barvale by Mr Hulston that the bank could provide expertise from one of its employees to replace the expertise and skill which Donoghue had agreed to provide." Further representations by Mr Healey are alleged in para. 27: "That ... (i) Costigan had sufficient skill expertise and experience to perform the tasks hitherto performed by Donoghue in the carrying out of the joint venture agreement; (ii) That Costigan had the necessary skill, expertise and experience to successfully and properly manage and/or control the carrying out of the development proposal to its completion." -- 8 of 18 -- 9 Representations are alleged against the respondent's officer Mr Costigan in para. 28: "From time to time from in or about February 1989, Costigan orally advised and represented to Hulstons and Barvale through Mr Hulston that any cost overrun on the works would not exceed $100,000." The appellants plead that in persisting with the development they relied on those representations, which were misleading and deceptive in the respects alleged in para. 30 as follows: "(a) Costigan lacked the skill, expertise or experience to supervise, manage and control the development; (b) Costigan did not supervise, manage or control the project; (c) Cost overruns on the development materially exceeded $100,000 which fact was or ought to have been known to the bank at the time of each of the representations alleged; (d) Alternatively to (c) the bank did not at the time of making the representation alleged in para. 28 hereof have any reasonable grounds for calculating the likely cost overrun in the sum of $150,000 or at all; (e) The bank was unable to properly supervise the project." As may be seen, the paragraphs struck out fall broadly into two categories, first those which concern the skill expertise and experience of those to manage the project (paras. 9(e), 10(a) and (b), 11, 24, 26, 27, 28 and 30) and second, those which concern the financial resources of Edgeton and Mr Donoghue (paras. 14(a) and (b), 18, 19 and 23). The appellants' case then, in summary, is that they caused Barvale to enter into a joint venture with Edgeton. A term was that Edgeton would provide $280,000 cash or by way of bank guarantee, and that Mr Donoghue (of Edgeton) would manage the project and provide the necessary expertise etc. Mr Donoghue represented that he had that skill, and that Edgeton would provide that sum of money. When Edgeton failed to provide the money, Barvale became entitled to terminate the venture. It did not do so, however, because of representations from the respondent that Edgeton did have the necessary assets, and that they would be made available. -- 9 of 18 -- 10 On that basis, Barvale proceeded to engage a builder. Mr Donoghue then represented further that the requirement for the securing of the $280,000 had been met. Mr Lowe, for the respondent, added that Mr Donoghue was a man of substance, and that the financial requirement would be met. The appellants persisted with the venture. The money was not paid or secured, however, and the respondent subsequently represented that Barvale was itself providing all the security the respondent required, with the respondent itself providing someone with the necessary skill to fill Mr Donoghue's role. Barvale therefore terminated the joint venture agreement with Edgeton. The respondent's Mr Healey reasserted that the respondent could provide someone with the appropriate expertise, and he subsequently nominated Mr Costigan as that person. Mr Costigan later advised that any cost overrun would not exceed $100,000. In reliance on all these representations, Barvale continued on with the project, but as it turned out, Mr Costigan lacked the requisite skill and did not manage the project, and cost overruns exceeded $100,000. Barvale therefore suffered loss, which it claims as damages. The mortgage upon which the respondent sues was given to secure moneys borrowed for the project. The challenge before the Chamber Judge to the paragraphs of the defence and counterclaim which he ordered be struck out was based on the appellant's failure sufficiently to particularise them. It is necessary therefore to look now to the extent of particulars provided in relation to those paragraphs. Paragraph 9(e) In the further request for particulars, the respondent asked for full particulars of the alleged term - in what respects Mr Donoghue was to manage the project; whether that management requirement was the same as the management requirement referred to elsewhere in the pleading; in what field was "the necessary expertise" he was to provide; what consultants was he to co-ordinate; what was he to do; and are the concepts of management, expertise and skill referred to in para. 9(e) the same as those referred to elsewhere in the pleading. -- 10 of 18 -- 11 The response confirmed that the concepts are referred to uniformly throughout the pleading. The appellants did not identify the particular consultants, or more particularly define the necessary management, skill and co-ordination, except to relate it to the completion of the project. That was however a sufficient response to an unduly intrusive request for particulars of an alleged contractual term. The term is pleaded clearly and unambiguously, and one doubts that any further particularisation was warranted. The response was in any case helpful, and need have gone no further. Paragraph 10(a) and (b) The respondent sought particulars of whether the representation alleged in para. 10(a), by Mr Donoghue as to his skill etc., was "the term" referred to in para. 9(e). The appellants responded that the representation "became" the term, which is comprehensible, in the sense, no doubt, that it led to the term. The respondent also asked whether the similar representation in para. 10(b) is the same as the "obligations" referred to elsewhere in specified paragraphs of the pleading, being paras. 10(a) itself, 11, 26, 27(b), and 30(a) and (b). The appellants responded, correctly, that the specified paragraphs do not refer to "obligations". They refer, save for the last, to representations, not obligations, and para. 30(a) and (b) refer not to obligations but to alleged factual positions. Paragraph 11 This paragraph alleges that Mr Donoghue and Edgeton lacked the skill expertise or experience represented, or the capacity to provide the money or security, or that neither intended to provide it. The respondent sought particulars of the respects in which they lacked that capacity. The appellants responded, as best they claimed to be able pending discovery, saying that Mr Donoghue and Edgeton failed to provide the skill and the money, and otherwise objected to the request. The allegation of lack of capacity was comprehensible, and did not call for further particularisation. -- 11 of 18 -- 12 Paragraph 14 This paragraph alleges representations in or about October, 1988 by the respondent's officer Mr Lowe, at the respondent's Broadbeach branch, that (in sub-para. (a)) Mr Donoghue or Edgeton had sufficient assets to meet their obligations, and (in sub-para. (b)) that the money etc. would be provided. The respondent sought particulars of the place within the branch where the representations were made. The appellants properly declined to give those. The respondent also sought more particularisation of the date of the representation: was it prior to or on 26th September, prior to or on 10th October, prior to the engagement of the builder, prior to or on 27th October, or when? The request is more akin to an interrogatory. The response was that the appellants could not be more particular than the "in or about October 1988" allegation. As far as particulars are concerned, that must be an end of the matter. The consequence may be that certain items of alleged loss are not established, because for example, the appellants cannot prove that the representation preceded the incurring of the liability. But in terms of particularity, the response is satisfactory. Mrs Wolfe for the respondent challenged the claim that the "obligations" referred to in para. 14(a) were those referred to in para. 9(b), because 14(a) refers to the obligations of Donoghue and Edgeton whereas 9(b) alleges obligations only of Edgeton. The representation in 14(a) is presumably to be read as raising Mr Donoghue's finances insofar as they may enable him to support his company in the discharge of its obligation. Paragraph 18 This alleges representations by Mr Donoghue "in the presence" of the respondent's officer Mr Lowe. The request asks for particulars of the basis for the allegation that Mr Lowe was in Mr Donoghue's presence, and where they respectively were. In response, the appellants said that Mr Donoghue made the representations by telephone, and that as part of the same call, Mr Lowe came onto the line and verified Mr Donoghue's representations. That was a plainly sufficient response. Paragraph 19 This paragraph alleges telephone representations by Mr Lowe about Mr Donoghue's -- 12 of 18 -- 13 financial substance, and his possession of the funds necessary for his part of the joint venture. The respondent sought particulars of the joint venture referred to, and of the basis on which the representations were attributed to Mr Lowe, including whether by telephone, and identifying persons present, place, and so on. In response, the appellants identified the joint venture as being the one referred to in para. 8 of the defence and counterclaim, asserted that Mr Lowe came on to the telephone after Mr Donoghue introduced him, and otherwise, and rightly, objected to answering the request. The allegation is quite comprehensible and required no further particularisation. Paragraph 23 This alleges that the representations previously referred to were misleading, in that the financial obligations of Mr Donoghue and Edgeton had not been met, and the respondent had no reasonable ground for believing that they would or could be met. There was no request for particulars of this paragraph, beyond a request for confirmation that the obligation referred to in para. 23(a) was the same as referred to in para. 9(b) - which was given. Paragraph 23 is comprehensible and apparently relevant and sufficiently particularised. Paragraph 24 This paragraph alleges representations by the respondent that there was no need for Edgeton's participation because Barvale could provide the requisite security and the respondent could itself provide an appropriately skilled substitute for Mr Donoghue. The usual particulars were sought, of the name of the person making the representation, whether it was oral or in writing, and so on. The response identified Mr Healey as the person making the representation, and the appellants specified that the representations were oral, where they were made, and the basis of Mr Healey's authority to bind the respondent. No further particulars were sought of this. Paragraph 26 This alleges representations by Mr Healey as to the respondent's capacity to provide an -- 13 of 18 -- 14 appropriately expert employee to fill Mr Donoghue's position. The respondent asked the number of occasions when the representations were made, where and when and who was present, and the terms of the conversations involved. In response, the appellants said that they could not say how many, they identified the substance of the conversations - in terms of the representation, which was sufficient - and gave the names of the parties and the place where the representations were made. That was a perfectly adequate response. No further particulars were sought. Paragraph 27 This alleges Mr Healey's representation as to Mr Costigan's skill etc., and that he introduced Mr Hulston to Mr Costigan. The respondent asked for the terms of the introduction, which the appellants provided. The adequacy of this response was not subsequently challenged. Paragraph 28 This alleges Mr Costigan's representation that cost overruns would not exceed $100,000. The respondent sought particulars of the representations: dates, places, parties, number of times. The appellants responded, repeating "from time to time from in or about February, 1989", as pleaded, saying that that was the best they could do, and otherwise responding, sufficiently, to the request. Paragraph 30 This alleges particulars of the misleading nature of the representations - in (a), that Mr Costigan lacked the skill etc.; in (b), that he did not manage the project; in (c), that cost overruns exceeded $100,000; in (d), that the respondent did not have reasonable grounds for calculating likely cost overruns at $150,000; and in (e), that the respondent could not properly supervise the project. As to the representation in para. 24(b), of the respondent's capacity to provide a skilled substitute for Mr Donoghue, the pleas that Costigan lacked the skill, and did not manage, in (a) and (b), could not be regarded as particulars of the representation, because it preceded the -- 14 of 18 -- 15 involvement of Mr Costigan, except so far as the respondent's alleged incapacity might be inferred from what subsequently transpired. Mr Dutney Q.C. for the appellants, confirmed that the pleading should be read in that way. The respondent asked in what respects Mr Costigan lacked the skill etc. The appellants responded, in effect, alleging his failure to supervise manage or control the project, and that the respondent should have known that cost overruns materially exceeded $100,000 (which corresponded with para. 30(b) and (c)). The respondent asked the appellants to identify the "project", which they did. The respondent also asked for particulars of Mr Costigan's failure to supervise. The appellants responded that he failed to cost the work properly to ensure that it was done within budget. The respondent then asked what was meant by "cost overruns", and by how much, and when, they exceeded $100,000. The appellant identified cost overruns with reference to initial costings by Promet Pty Ltd, and said that they were unable to particularise the extent of the overrun prior to discovery. The respondent further asked for what reason the respondent failed properly to supervise the project. The appellants said because it allowed costs to exceed initial estimates without obtaining the appellants' approval. The respondent then sought, subsequently, further details of the initial costings, and how they came to the respondent's knowledge. The appellants sufficiently responded to that, as far as they claimed to be able. The appellants have not yet particularised their alleged loss, saying they cannot pending discovery. This obviously would create some difficulty for the respondent. But that apparently was not argued before the Chamber Judge, and he was not asked to strike out the relevant paragraphs, 37 and 38. -- 15 of 18 -- 16 As that review demonstrates, the appellants did sufficiently respond to the respondent's requests for particulars. The respondent has not alleged that the counterclaim does not disclose a cause of action. The application before the Chamber Judge was based on alleged embarrassment for want of particularity in the pleading and the particulars provided in response to the requests. Reading the defence and counterclaim together with the particulars which have been provided, the respondent should be in a position to plead properly in response to it. The learned Judge apparently did not specify the reasons which led to his decision to strike out those paragraphs of the defence and counterclaim. In light of the conclusion that sufficient particulars have been provided, the application before the Judge having been based on an asserted lack of particularity, his discretion would appear to have miscarried, so that this Court should interfere with the orders made. During the hearing of the appeal, some possible discrepancies emerged, though not sufficient to warrant the striking out ordered. There was, for example, some variation in references to the project and its completion which may be undesirable (though clarified by the particulars), and there is the reference in para. 14(a) to "their obligations". There should be leave to the appellants to deliver an amended defence and counterclaim so that any such discrepancies may be tidied up. The appeal should be allowed and the orders appealed from set aside, and there should be an order that the respondent pay the appellants' taxed costs of and incidental to the hearing below and this appeal. The appellants have leave to deliver an amended defence and counterclaim. -- 16 of 18 -- 17 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 262 of 1992 Brisbane BETWEEN: COMMONWEALTH BANK OF AUSTRALIA Respondent/Plaintiff AND: SYDNEY BYNG HULSTON and MARGARET ELEANOR HULSTON Appellant/Defendants BY ORIGINAL ACTION AND: SYDNEY BYNG HULSTON and MARGARET ELEANOR HULSTON Appellant/First Plaintiffs AND: BARVALE PTY LTD Second Plaintiff AND: COMMONWEALTH BANK OF AUSTRALIA Respondent/First Defendant AND: PATRICK FRANCIS DONOGHUE Second Defendant AND: EDGETON PTY LTD Third Defendant The President Mr Justice McPherson Mr Justice de Jersey Judgment deliver the 27th day of May, 1993 Reasons by McPherson J.A. and de Jersey J. jointly. President dissenting. -- 17 of 18 -- 18 APPEAL ALLOWED. ORDERS APPEALED FROM SET ASIDE. ORDER THAT THE RESPONDENT PAY THE APPELLANTS’ TAXED COSTS OF AND INCIDENTAL TO THE HEARING BELOW AND THE APPEAL. FURTHER ORDER THAT THE APPELLANTS HAVE LEAVE TO DELIVER AN AMENDED DEFENCE AND COUNTERCLAIM. CATCHWORDS: Striking out paragraphs of pleading for want of particularity. Counsel: P.R. Dutney Q.C. and J.W. Lee for appellants Mrs P.M. Wolfe for respondent Solicitors: Graham Davies and Associates for appellants David J. French for respondent Hearing date: 30th April, 1993 -- 18 of 18 --