Bullivants Natural Health Products Pty Ltd v C F Planners Pty Ltd & Ors [1993] QSC 43

... State Reporting Bureau 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 CIVIL JURISDICTION RYAN J No 450 of 1992 BULLIVANTS NATURAL HEALTH PRODUCTS PTY LTD (ACN: 010 008 616) and C F PLANNER PTY LIMITED (ACN: 006 887 225) and MAURICE BERNARD BYRNE and ROBIN O'HAIR and BERIMAH PTY LTD (ACN: 005 905 895) and THE NEWSRENDING INSTITUTE INCORPORATED and W HOLDINGS PTY LTD (ACN: 005 936 265) and DAVID VAUGHAN BULLIVANT BY ORIGINAL ACTION and between ROBIN O'HAIR and 1 REVIS:2D COPIES ISSUED "'~ Stat8 f1epor:ing Bureau ~ate /~ 1. .J 1 ..3 Plaintiff First Defendant Second Defendants Third Defendants Third Party Plaintiff 4th Floor. The Law Courts, Geor~e Street. Brisbane. 0. 4000 Televhone: (07) 227 4360. Facsimile: fn7> 227'1llU -- 1 of 8 -- 080393 AJB (Ryan J) BULLIVANTS NATURAL HEALTH PRODUCTS PTY LTD (ACN: 006 887 225) BY COUNTER-CLAIM BRISBANE .. DATE 08/03/93 JUDGMENT Defendant HIS HONOUR: I dismiss the application and order the applicant to pay the plaintiff's costs of the application to be taxed. I publish my reasons. 2 10 20 30 40 50 60 -- 2 of 8 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: No. 450 of 1992 BULLIVANTS NATURAL HEALTH PRODUCTS PTY LTD. (ACN: 010 008 616) CF PLANNERS PTY LIMITED (ACN: 006 887 225) Plaintiff First Defendant MAURICE BERNARD BYRNE and ROBIN O'HAIR Second Defendants BERIMAH PTY LTD. (ACN: 005 905 895) THE NEWSVENDING INSTITUTE INCORPORATED and W. HOLDINGS PTY LTD. (ACN: 005 936 265) Third Defendants DAVID VAUGHAN BULLIVANT Third Party BY ORIGINAL ACTION AND BETWEEN: ROBIN O'HAIR Counsel: BULLIVANTS NATURAL HEALTH PRODUCTS PTY. LTD. (ACN: 006 887 225) BY COUNTER-CLAIM JUDGMENT - RYAN J. Delivered the Eighth day of March, 1993 S. Doyle for the Plaintiff T. Matthews for the Defendant Solicitors: Clayton Utz for the Plaintiff Plaintiff Defendant Hillhouse Burrough McKeown for the Defendant Hearing Date: 17 February 1993 -- 3 of 8 -- IN THE SUPREME COURT OF QUEENSLAND No. 450 of 1992 BETWEEN: AND: AND: BULLIVANTS NATURAL HEALTH PRODUCTS PTY LTD. (ACN; 010 008 616) CF PLANNERS PTY LIMITED (ACN: 006 887 225) Plaintiff First Defendant MAURICE BERNARD BYRNE and ROBIN O'HAIR Second Defendants BERIMAH PTY LTD. (ACN: 005 905 895) THE NEWSVENDING INSTITUTE INCORPORATED and W. HOLDINGS PTY LTD. (ACN: 005 936 265) Third Defendants DAVID VAUGHAN BULLIVANT Third Party BY ORIGINAL ACTION AND BETWEEN: ROBIN O'HAIR BULLIVANTS NATURAL HEALTH PRODUCTS PTY. LTD. (ACN: 006 887 225) BY COUNTER-CLAIM JUDGMENT - RYAN J. Delivered the Eighth day of March, 1993 Plaintiff Defendant Mr. O'Hair, one of the second defendants in an action in which the plaintiff is Bullivants Natural Health Products Pty. Ltd., seeks orders that the plaintiff provide further and better particulars of certain allegations in the statement of claim. The application was heard on 17 February 1993. The statement of claim was delivered on 22 October 1992, and the defence and counter-claim of O'Hair was delivered on 23 November 1992. A request by O'Hair for further and better particulars of certain of the allegations contained in the statement of claim was delivered on 2 December 1992 to the plaintiff's solicitors. Certain further and better particulars -- 4 of 8 -- 2 dated 2 February 1993 were provided by them. They did not however provide a response to a number of requests. It is in respect to these that the application is made. Request 1(c): This asks the position or office held by each of the representatives of the plaintiff referred to in paragraph 6 of the statement of claim. I am unable to see that the position held by the representatives is a relevant matter. Request 3: The plaintiff is not required to give the full terms of an agreement but only its general effect and material terms. This is done in paragraph 8 of the statement of claim. Request 4: The statement of claim alleges that it was an implied term of an agreement between the plaintiff and the first defendant that it would investigate the plaintiff's financial affairs and provide to it advice concerning its financial affairs that the first defendant would exercise reasonable care and skill in investigating and advising the plaintiff as to its financial affairs. Particulars given are that the term is implied out of necessity and to give business efficacy to the agreement. The request is for particulars of the necessity and business efficacy. I consider that to give further particulars would be to disclose the evidence by which the particulars given are to be proved. The plaintiff is therefore not required to give further particulars. Request S(c): The request need not be answered for the same reason given in respect to Request 1(c). -- 5 of 8 -- 3 Request 6: This seeks particulars of any statement made by O'Hair at a meeting on 13 June 1991. It is not however alleged that O'Hair made any statement at that meeting. It is sufficient to allege that the statement was made by one of the representatives of the first defendant. Request 7(c): This request need not be answered for the reason given in respect to Request 1(c). Request 7(d): This requests particulars of the facts, matters and circumstances relied upon for the assertion in paragraph 12 of the statement of claim that O'Hair attended a meeting on 28 June 1991 on behalf of the first defendant. Particulars should have been provided. They were in fact provided in a letter from the solicitors for the plaintiff to the solicitors for the defendant dated 16 February 1993. Request 8(a) and 8(b): Particulars should have been provided, and were provided in the letter of 16 February 1993. Request 9 (a) (b) (c) (d) (e) : The statement of claim alleges in paragraph 16 that the first defendant, Byrne and O'Hair at all material times knew (a) that the plaintiff relied upon them to exercise that reasonable care; (b) as was the case, that if they did not exercise that reasonable care, the plaintiff may suffer loss and damage. It is clear from the preceding paragraph that the reasonable care is that referred to in paragraph 15 of the statement of claim. Hence, Request 9 (b) is not required to be answered, though it was answered in the letter of 16 February 1993. Order 22 r. 22 provides that when it is material to allege knowledge or other condition of the mind of any person, it is -- 6 of 8 -- 4 sufficient to allege the same as a fact without setting out the circumstances from which it is to be inferred. Hence Request 9(a) is not required to be answered. It is not alleged in paragraph 16 that 0 1 Hair did not exercise reasonable care. Hence 9 (c) is not required to be answered. It is not a proper request for particulars to require the plaintiff to give particulars of the loss and damage which the plaintiff may have suffered of which 0 1 Hair was alleged to have been aware. The "Material times" are stated in the response to be "1991 or 1992". This is an adequate response in the light of the matters alleged in the statement of claim. Request 10: This requests particulars of the facts, matters and circumstances relied upon for the implication of certain alleged representations. The response given adequately identifies these. Request 12. This request is also not required to be answered by virtue of 0. 22 r. 22. Request 13. This requests a statement of the facts, matters and circumstances relied upon for the assertion that 0 1 Hair gave each and every one of the warranties referred to in paragraph 21 of the statement of claim. The response given answers adequately the request. Request 14. This seeks further particulars of the manner and respect in which it is alleged that 0 1 Hair was a person involved in the contravention by the first defendant of s.52 of the Trade Practice Act. -- 7 of 8 -- 5 The particulars given in the relevant paragraph of the statement of claim are sufficient to enable the applicant to know the case he has to meet. Reguest 15. This contains a large number of specific requests relating to paragraph 28 of the statement of claim. There are however given particulars in paragraph 28 which are sufficient to enable the applicant to know the case he has to meet. Reguest 16. This seeks particulars of the loss and damage which the plaintiff alleges it has suffered as a result of four matters set out in the paragraph. Extensive particulars are given, but they are not appropriated to the four particular matters. I do not consider that it is necessary to do so to enable the applicant to know the case he has to meet. I consider that the plaintiff has provided sufficient responses to the request for further and better particulars made by the defendant Mr. 0' Hair. Except in two instances, these were provided prior to the service of the summons. In those two instances, they were provided prior to the hearing of the application . I dismiss the application, and order the applicant to pay the plaintiff's costs of the application to be taxed. -- 8 of 8 --