Burchell v Golden Wood Pty Ltd [2000] VSC 86

Supreme Court of Victoria|2000-03-17|Before: Warren J

For the reasons already expressed I do not accept the attack made by the defendants upon paragraph 6 of the statement of claim. The defendants complain, further, that paragraph 7(a) of the statement of claim sets out clause 2 of the agreement but ignores clause 7 of that mandate agreement. There is further complaint that paragraph 8 of the statement of claim does not plead any facts constituting the "introduction" for the purposes of the alleged agreement between the plaintiff and the defendants. In my view such complaint can be satisfied by further and better particulars of paragraph 8 of the statement of claim. Insofar as paragraph 8 provides particulars it is submitted on behalf of the defendants that such particulars are inconsistent with clause 7 of the mandate agreement. I cannot be satisfied for the purposes of the present application that such is the case. Again it is a matter for determination at trial. As matters stand the particulars save for the observations I have made under paragraph 8 of the statement of claim are satisfactory. For the reasons already expressed I otherwise do not accept the complaints with respect to paragraph 7(a) of the statement of claim.

The defendants complained, also, about paragraph 7(b) of the statement of claim. In essence the complaint raises again the alleged flaw that there was no contract between the plaintiff and the second, third and fourth defendants as they were not contracting parties to the mandate agreement. For the reasons already stated I consider that such is a matter for determination at trial. Nevertheless the defendants complain that paragraph 7(b) of the statement of claim does not plead express obligations imposed on the second, third and fourth defendants as individual participants to the agreement (as distinct from the first defendant, Golden Wood). The defendants complain that as the pleading stands it involves a transposition of implied obligations of the first defendant on to the individual defendants, the second, third and fourth defendants. The defendants concede that it is arguable that the first defendant as part of its obligation to pay a fee to the plaintiff had an implied obligation to do all things necessary on its part for the carrying out of the contract (see Mac Kay v Dick ,263; Secured Income Real Estate (Aust) Ltd v St Martins Investment Pty Ltd ; ,607). Nevertheless the defendants complained that there is no pleading that transposes such implied obligation on to the individual defendants. I accept the complaint. Paragraph 7(b) should be struck out and re pleaded to allege the obligations said to be imposed pursuant to the mandate agreement upon the second, third and fourth defendants.

The defendants complain, also, that insofar as obligations are alleged by the plaintiff against the first defendant such obligations are in the nature of a guarantee. It is submitted that any such guarantee must be in writing pursuant to the requirements of s.126 of the Instruments Act 1958. On the face of the pleading I cannot accept that this is the case. There is nothing in the pleading in the nature of a guarantee. It follows that the submission in this regard by the defendants is not accepted.

The defendants complained, also, that insofar as particulars are provided in paragraph 7(b) of the statement of claim they do not support the terms pleaded. It is complained that the terms pleaded are not expressed in the mandate letter of 8 April 1999. It is further complained that such terms cannot be implied into that document as a matter of law as any such implication would be inconsistent with the terms of clause 2 of the mandate agreement (see B P Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52ALJR 20, 26; Secured Income Real Estate (Aust) Ltd v St Martins Investment Pty Ltd, Supra at 606). For the purposes of the present application I cannot be satisfied that the implication is inconsistent with the terms of clause 2. In my view such a matter is a matter for determination at trial on evidence. However for the reasons already stated I consider that the terms, if any, insofar as they are said to impose obligations on the second, third and fourth defendants should be revisited in clause 7(b) of the statement of claim.

The defendants complained, also, that paragraph 11 of the statement of claim is irrelevant. In the overall context of the pleading I cannot agree and in any event consider that it is a proper matter for determination at trial. The defendants complain, also, as to the form of paragraph 12(b) of the statement of claim. They complain that the plaintiff could not provide consideration for the agreement made on 19 April 1999 (as pleaded in paragraph 5) by acceding to a request made to it on 25 May 1999. The complaint is made that the statement of claim does not plead any obligation of the plaintiff to accede to the request. In my view this is a matter for evidence and turns on the proper construction of the mandate agreement. As the pleading stands I am satisfied it is sufficient.

The plaintiffs attacked paragraph 13 and 16 of the statement of claim with respect to the claim brought under the Trade Practices Act and the Fair Trading Act of misleading and deceptive conduct. In essence, the defendants complain that the pleading does not adequately or at all allege a representation as to a future matter. They submit that clause 2 of the mandate agreement does not contain any matter of a representational type. Whilst ultimately such may prove to be the case it is a matter in my view to be determined at trial. The defendants attack the particulars to paragraph 13 as relying solely on clause 2 of the mandate agreement. It is open to the defendants to seek further and better particulars of that matter. It follows that the complaint made by the defendants with respect to paragraphs 13 and 16 is not made out. The defendants attacked paragraphs 15 and 19 of the statement of claim wherein reliance and damages are pleaded. The defendants complained that the plaintiff must plead an appropriate causal link between the representation, his reliance on the representation and the damages pleaded. So much is correct as a matter of law and conceded by the plaintiff (see Marks v GIO Aust Holdings Ltd [1998] HCA 69; (1998) 73 ALJR 12). The defendants complain that no such causal or link is shown between the alleged representation in paragraph 13, the act of reliance in paragraph 15 and the damages consisting of "the value of the shares representing 10% of the equity in the joint venture" in paragraph 19. Mr Martin QC who appeared with Mr Whitten for the plaintiff submitted that the causal link is the failure to provide the 10% to the plaintiff to which he says he was entitled. Mr Martin conceded that such causal link was not specifically pleaded in paragraph s.13-17 of the statement of claim but would be part of the particulars provided under paragraph 17, namely, failing to consummate the agreement. In my view the particulars should be clarified in this respect. Accordingly it is appropriate that the plaintiff provide further particulars with respect to the causal link between the representation, the reliance and damages in paragraph s 13-17 of the statement of claim.

In paragraph 18 of the statement of claim the plaintiff alleges "in the premises" there was a trust. The defendants complain that such pleading is uninformative. There is also complaint that paragraph 18 is inconsistent with paragraph 9(d) of the statement of claim wherein it is pleaded that the defendants or one or other of them hold the relevant shares. Paragraph 18 pleads that the second to fourth defendants hold the shares on trust for the plaintiff. Mr Martin submitted that such matter could be the subject of particulars. I agree. Mr Martin stated that at this point the plaintiff does not know which one of the second, third and fourth defendants hold the shares in the first defendant. He submitted that by the time the proceeding reaches trial the plaintiff will know who held the shares in the first defendant. In my view the complaint against the pleading is not made out. It is a matter that is more properly the subject of a request for further and better particulars.

In paragraph 20 of the statement of claim the plaintiff alleges a quantum meruit. The defendants complain that the pleading does not identify how 10% of the value of stage one of the project constitutes a "fair and reasonable sum for work and labour done". In my view the complaint concerning the pleading is more properly a matter that falls within the province of a request for further and better particulars. It is a matter for further particulars as to how the relevant sum was calculated. Otherwise the plea in quantum meruit is an alternative plea in its traditional form is quite appropriate.

It follows that insofar as the defendants complain as to the pleading against them further and better particulars should be provided of paragraphs 5, 8, 13-17 and 18 in accordance with these reasons. The only matter in which the defendants have succeeded is with respect to the complaint concerning paragraph 7(b) of the statement of claim relating to the obligations, if any, imposed on the second, third and fourth defendants. I will order that paragraph 7(b) of the statement of claim be re-pleaded. I will hear the parties as to the appropriate form of order.

These are the matters relied upon in support of the application pursuant to Order 23.01. The starting point in an application under Order 23.01 is an acknowledgment of the very high burden that faces the defendants on the basis of the principles expressed by Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 92, also, Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 603 and, more recently, by the Court of Appeal in Coles Myer Limited v Bowman [1996] VicRp 31; (1996) 1 VR 446. With respect, the statement of the relevant principles set out by Charles JA (with whom Brooking and Callaway JJA concurred) in Coles Myer (at 549) conveniently states the law:

Next there is the matter of whether the mandate agreement has lapsed in any event as it was not completed by 1 June 1999. Essentially the submission is to the effect that time was of the essence of the agreement and that the relevant time having passed the agreement has lapsed. An examination of the mandate agreement reveals a number of references to "keeping the plaintiff informed" and target key dates", including a date, namely 1 April 1999 that had already passed at the time that the mandate agreement was signed. If a contract does not state a specific time for performance but fixes it only approximately, the prima facie inference is that performance "on time" is not an essential term of the contract (see D T R Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138CLR 423, 430-431; Rainbow Spray Sales Pty Ltd v Sanders (1964) NSWR 422; Tropical Traders Ltd v Goonan [1964] HCA 20; (1964) 111 CLR 41; also Cheshire and Fifoot's Law of Contract (5th) Aust. Ed. Para. 2110). On the face of the mandate agreement there is nothing that supports the assertion that time was of the essence. Ultimately it is a matter for determination at trial.

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Cases Cited (9)