Appeal and new trial - Practice - Application to amend grounds of appeal which would have effect of withdrawing pleaded admission that agreement had been concluded - Pre-trial application to withdraw admission rejected - Trial Judge proceeding on basis of pleadings - Application to amend grounds of appeal dismissed

Appellant (Defendant) : Mr M J McCusker QC & Mr E Carlose

Respondents (Plaintiffs) : Mr W S Martin QC & Mr D J Bishop

Appellant (Defendant) : Australian Government Solicitor

Burns v Grigg [1967] VicRp 113; [1967] VR 871

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Geelong Building Society (In liq) v Encel [1996] VicRp 44; [1996] 1 VR 594

Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

Paltara Pty LTd v Dempster (1991) 6 WAR 85

Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418

1 KENNEDY J: When this appeal came on for hearing before us on 8 October 1998, senior counsel for the appellant submitted that, notwithstanding an express admission in the appellant's defence of an alleged agreement (or agreements) by the respondents to purchase from the appellant a supermarket and a restaurant, and to take 99 year leases of the premises in which those businesses were conducted, he was entitled to argue that no agreement had been concluded between the parties. After argument, counsel sought leave to amend the grounds of appeal to allow him to argue this issue. The amendment which counsel sought was to add a further ground of appeal to the effect that the learned trial Judge was wrong in law and in fact in holding that, as at 20 February 1991, there were concluded agreements to lease. Leave was granted to the appellant to file an application for leave to amend the grounds of appeal accordingly, and for each party to file written submissions.

2 Subsequently, a greatly expanded application became the subject of a notice of motion for leave to amend the grounds of appeal, although it was claimed on behalf of the appellant that the amendments being sought were simply the substantive amendments envisaged at the hearing on 8 October 1988 which challenged the finding by the trial Judge that there were concluded agreements. All the proposed amendments were said to be relevant, necessary and inextricably linked to the contention that there was no concluded agreement.

3 There is a significant history leading up to the present application and it is necessary to say something of the background.

4 The respondents' statement of claim was in the following terms:

"1. The plaintiffs are and were at all material times duly incorporated companies.

2. The defendant is and was at all material times the owner of the Christmas Island supermarket ("Supermarket") and the Rumah Tinggi Restaurant complex ("Restaurant") on Christmas Island and held the freehold title of the land from which the Supermarket and Restaurant operated.

3. The Department of Administrative Services ("DAS") at all material times acted for and on behalf of the defendant.

4. By agreement made on or about 20 February 1991 between the plaintiffs and the defendant, the plaintiffs agreed to purchase and the defendant agreed to sell the Supermarket business and the plaintiffs agreed to take and the defendant agreed to grant a 99 year lease of the Supermarket premises for a consideration of $150,000 ("the Supermarket Agreement").

The Supermarket Agreement is contained in or evidenced by the following documents:

(b) Letter from Argyle & Partners to DAS dated 31 January 1991;

(c) Letter from Argyle & Partners to DAS dated 4 February 1991;

(d) Facsimile from DAS to Argyle & Partners dated 20 February 1991;

(e) Sales Advice SCO 5/91 from DAS to the plaintiffs dated 20 February 1991.

5. By an agreement made on or about 20 February 1991 between the plaintiffs and the defendant the plaintiffs agreed to purchase and the defendant agreed to sell the Restaurant business and the plaintiffs agreed to take and the defendant agreed to grant a 99 year lease of the Restaurant premises for a consideration of $100,000 ("the Restaurant Agreement").

The Restaurant Agreement is contained in or evidenced by the following documents:

(b) Letter from Argyle & Partners to DAS dated 31 January 1991;

(c) Letter from Argyle & Partners to DAS dated 4 February 1991;

(d) Facsimile from DAS to Argyle & Partners dated 20 February 1991;

(e) Sales Advice SCO 6/91 from DAS to the plaintiffs dated 20 February 1991.

6. It was an express term of both the Supermarket Agreement and the Restaurant Agreement that settlement would be concluded as soon as reasonably practicable.

7. After entering into the Supermarket Agreement and the Restaurant Agreement the parties communicated with respect to the terms of the leases to be granted pursuant to each Agreement. Settlement of the Agreements did not take place because of the failure or refusal of the defendant to provide to the plaintiffs for execution leases giving effect to the terms of the Agreements.

8. By letter dated 9 January 1992 from DAS to Messrs Robinson Cox, the then solicitors for the plaintiffs, the defendant wrongfully repudiated both the Supermarket Agreement and the Restaurant Agreement and refused any longer to be bound by those Agreements and despite demand has refused and continues to refuse to perform its obligations under either Agreement.

9. As a consequence of the matters pleaded in paragraph 7 hereof the plaintiffs have been unable to acquire the leasehold interest in and take possession of, and operate, the Supermarket and the Restaurant premises and have thereby suffered loss and damage.

10. The plaintiffs are and have at all times been ready, willing and able to perform their obligations under both Agreements.

5 By its defence dated 24 June 1994, as amended on 20 September 1995 and as further amended at trial, it was materially provided as follows:

"1. The defendant does not know and cannot admit paragraph 1 of the plaintiffs' statement of claim, because the plaintiff companies are not identified by an Australian Company Number.

2. The defendant admits paragraph 2 of the statement of claim.

3. The defendant denies paragraph 3 of the statement of claim. The defendant says that at all material times both the Commonwealth Department of Administrative Services ("DAS") and the Commonwealth Department of the Arts, Sport, the Environment, Tourism and Territories ("DASETT") acted for and on behalf of the defendant. The plaintiffs were at all times represented by Argyle and Partners ("Argyle") and Nationwide Food Service ("Nationwide").

4. The defendant admits paragraphs 4 and 5 of the statement of claim save that the facsimile from DAS to Argyle & Partners is dated February 1991.

5. The defendant admits paragraph 6 of the statement of claim and says further that it was an implied term of both Agreements that they were subject to the parties executing leases on terms as set out in the Draft Lease contained in the DAS Request for Tender 90/90/183 and such other terms, only in relation to the purpose clauses of the leases as the parties may agree.

6. The defendant will rely on the following matters to support its allegation that the agreements were subject to the parties executing leases on terms as set out in the Draft Lease contained in the DAS Request for Tender 90/90/183 and such other terms, only in relation to the purpose clause, as the parties may agree, namely

(i) By way of an advertisement placed in the Financial Review on 5th September 1990, the defendant invited tenders for the purchase of the Supermarket businesses and leasehold interests referred to in paragraph 4 of the statement of claim on conditions set out in tender package titled Request for Tender 90/90/83, referred to in paragraph 4(a) of the statement of claim. The Request for Tender 90/90/83 included Tender Conditions and a Draft Lease in respect of the premises in which the Supermarket business was to be carried on.

(ii) Clause 9 of the Tender Conditions, referred to in sub paragraph (i) above, expressly provided:

(a) that the tenderer may seek variations to the purpose clause of the draft lease;

(b) that an outline of any variations sought should be included in the tender offer;

(c) that any negotiations concerning the variations are to be concluded within 7 days of notification of acceptance.

(iii) Pursuant to the matters referred to in sub paragraph (i) above, the plaintiffs submitted a tender dated 27th November 1990. In their tender, the plaintiffs did not seek any variations to the terms of the draft lease referred to in paragraph (i) hereof. All tenders received including the plaintiffs', were duly rejected as the bids were unacceptably low.

(iv) The defendant subsequently communicated and negotiated directly with the plaintiffs' representatives with regard to the purchase price of the said Supermarket business and leasehold interest. The scope of the negotiations was widened to include the sale and purchase of the Restaurant business and leasehold interests referred to in paragraph 5 of the statement of claim. The plaintiffs were informed by a facsimile dated 11 January 1991 from DAS to Nationwide that the Draft Lease referred to in sub paragraph (i) above would form the basis of any new lease agreement.

(v) By letters dated 31st January and 4th February 1991 referred to in paragraphs 4(b) and (c) and 5(b) and (c) of the statement of claim, the plaintiffs offered to purchase both businesses and leasehold interests for the aggregate sum of $250,000.

(vi) By a letter dated February 1991 referred to in paragraphs 4(d) and 5(d) of the statement of claim and the Sales Advices referred to in paragraphs 4(e) and 5(e) of the statement of claim, the defendant accepted the plaintiff's offer set out in sub paragraph (v) above.

(vii) Both Sales Advice referred to in paragraphs 4(e) and 5(e) of the statement of claim also expressly stated that the general conditions of sale were to be as per the Request for Tender referred to in sub paragraph 6(i) above.

7. Alternatively, it was an implied term of both Agreements that they were subject to the parties executing leases on terms to be agreed between them.

In addition to the matters referred to in paragraph 6(i) to (vii) hereof, the defendant will rely on the following matters to support its allegation that the agreements were subject to the parties executing leases on terms to be agreed between them

(i) the fact that both the businesses had been and were to be carried on in premises owned by the defendant and which were the subject of the leases.

(ii) the sale in respect of each agreement was for both the businesses and the leasehold interests.

8. It was also an implied term of both Agreements that they were subject to the parties executing leases within a reasonable time. The defendant will rely on the following matters to support its allegation that the Agreements were subject to the parties executing within a reasonable time the leases:

A reasonable time for execution of the Leases would have been within three weeks after 21 June 1991, the date the Leases were forwarded to the plaintiffs.

9. The defendant admits that after entering the Supermarket Agreement and the Restaurant Agreement the parties communicated with respect to the terms of the leases to be granted pursuant to each Agreement, but otherwise denies paragraph 7 of the statement of claim.

10. The defendant admits that DAS wrote to the plaintiffs' former solicitors, Messrs Robinson Cox, by letter dated 9 January 1992, but otherwise denies paragraph 8 of the plaintiffs' statement of claim.

11. The parties were unable to agree the terms of the Draft Leases within a reasonable time and the Supermarket Agreement and the Restaurant Agreement were thereby terminated. Alternatively, by reason of the failure of the parties to agree the terms of the leases within a reasonable time, the defendant was entitled to terminate both Agreements, and validly did so by the DAS letter of 9 January 1992.

6 By summons dated 22 June 1995, the appellant applied to an Acting Master for leave to amend its defence. Had the application been successful, it would have involved changes to every paragraph in the defence. In particular, it would have resulted in the withdrawal of the admission in par 4 of the defence concerning the two agreements and the substitution of a claim that the "alleged agreements" at all material times were not concluded or binding agreements, but were subject to certain preconditions. There were also references in the proposed amendments to "the defendant's alleged acceptance of the plaintiffs' offer".

7 The application was dismissed by the learned Acting Master. There was no appeal from that decision.

8 Subsequent to the dismissal of the appellant's application to amend its defence, by consent, an amended defence was filed. In that amended defence, the admissions in par 4 of the defence, as set out above, were maintained.

9 At the commencement of the hearing before the learned trial Judge on 23 February 1998, senior counsel for the appellant sought to raise once again the contention that there had been no concluded agreements. He claimed that the admission made was that the parties had reached an agreement "in principle". That did not, of course, reflect the terms of the defence. Counsel for the respondent stated that to proceed on that basis would have "quite significant ramifications for the way in which the plaintiffs would conduct their case".

10 The trial Judge then sought a response from counsel for the respondents to the proposition put by counsel for the appellant that the pleading of a legal conclusion was unnecessary and, while it may be done, a party is not bound by a legal conclusion which it does plead, but may rely upon any legal consequences which arise from the material facts.

11 The response of counsel for the respondents was, perhaps, slightly ambiguous. He said:

"If that proposition is right, your Honour can adjudicate upon it without any amendment being necessary. We of course contest that proposition, but if it is right, then it can be made good and adjudicated upon. If it is not right, then we are happy to fight on that basis, your Honour, but not on the basis of the foreshadowed amendment."

What is clear is that at all times the respondents have challenged the appellant's claim to withdraw its admission and have denied its entitlement, on the pleadings, to argue that there were no concluded agreements.

12 His Honour indicated that, other than by consent, he would not have permitted an amendment to the pleadings of the nature sought, by reason of the fact that it had been adjudicated upon on a previous occasion. He said, "We can deal with the proposition that you can advance that assertion regardless of the pleadings at the appropriate time".

13 In the course of his opening, counsel for the respondents said in relation to a formal advice of the sale, which was one of the documents being tendered by him:

"If we did have a Masters v Cameron issue [which related back to his earlier observation that the primary question was one of construction, whether it be a question of whether there was a concluded agreement in Masters v Cameron terms or whether it be, as pleaded, a question of an implied term] of course one would be making much about that, but we are proceeding on the assumption that subject to the legal argument there is no Masters v Cameron issue."

14 The argument was advanced for the appellant that, in fact, the parties had not concluded an agreement at all, and that it could scarcely be said as to this that the respondents had been caught by surprise, given the appellant's intention to make it clear a long time previously by way of amending the pleading that it was not suggested that there was a binding contract as at February, but that there was an admission as to the fact that there had been "initial agreement". It was also urged that the fact of there being no concluded agreement had been advanced consistently in correspondence. His Honour's response to that submission was:

"I don't think that can help you though, can it, when you come to the history of the matter. That may have been advanced at the time. A pleading came out in which it was not advanced. An application was made to amend to go back to that position. That application was adjudicated upon and refused. The plaintiff, I think, was quite entitled to go to trial on the basis that there was a concluded agreement but there was an implied term which was not satisfied."

"I accept that and I accept that entirely, your Honour. It is nevertheless something that in our submission your Honour is entitled to take into account in deciding whether this is a concoction at the last minute or whether it was a position repeatedly stated at the time in the exchange of communications and in early 1992 that was the position expressly taken."

"I will be quite blunt with you, Mr McKerracher: I think it is a very reasonable construction to put on the documents. However, it is not the case that I am trying."

17 Counsel replied: "I say no more about it your Honour".

18 In his reply, counsel for the respondent commenced by referring to the pleading of the agreements and said:

"Of course it is our submission that given that these matters are admitted it is not possible for your Honour to make any finding of fact inconsistent with the pleadings that are admitted."

20 In his reasons for judgment, the learned trial Judge observed: "This is a case in which the course of proceedings has very much been governed by the pleadings". His Honour also expressed the view that the appellant had clearly and unambiguously admitted the existence of concluded contracts and that those concluded contracts included agreements to lease. Whilst, he said, he could see the argument which counsel for the appellant wished to advance, he reiterated that he was deciding the case on the pleadings. He explained that, at the outset of the trial, he had explored with counsel two possible ways of approaching the problem, the first being for the appellant to apply to amend the defence, the other being to rely on the proposition that, if the evidence disclosed that there had not been a concluded agreement, it would be open to the court so to find as a conclusion of law, irrespective of what had been pleaded. In the circumstances, he said, to have permitted the appellant on the first day of the trial of an action that had been on foot for almost four years to amend, so as to withdraw an admission and to allege that no concluded agreement had been reached, would have been far-reaching indeed. An even more compelling reason for his Honour as to why leave to amend was inappropriate, was that the Acting Master had refused leave to amend, a ruling which the appellant had not sought to challenge.

21 In support of the appellant's application to amend the grounds of appeal, reliance was placed upon Lever Bros Ltd v Bell [1931] 1 KB 557, at 582 - 583, and upon Re Vandervell's Trusts (No 2), White v Vandervell Trustees Ltd (1974) Ch 269, at 321 - 322.

22 In the celebrated case of Lever Bros Ltd v Bell, in the Court of Appeal, one of the complaints regarding the decision of Wright J was that mutual mistake, on the basis of which judgment had been given, had not been pleaded. Scrutton LJ, at 582 - 583, accepted that the plaintiffs had not alleged mutual mistake in their pleadings as a ground for treating the contract for payment as void and for recovering the money paid under it. The only relevant paragraph in the statement of claim alleged a unilateral mistake. Scrutton LJ said:

"In my opinion the practice of the courts has been to consider and deal with the legal result of pleaded facts, though the particular legal result alleged is not stated in the pleadings, except in cases where to ascertain the validity of the legal result claimed would require the investigation of new and disputed facts which have not been investigated at the trial."

He observed that Wright J obviously had mutual mistake in his mind during the trial, and that one at least of the cases cited during the argument turned on it. He concluded, at 583 - 584:

"In my opinion, therefore, the question as to mutual mistake needs no further evidence to elucidate its legal effect, and can be dealt with on the facts admitted and found by the jury or inferred by the judge without any amendment of the pleadings."

"As however all the facts relevant to the question whether there had been a mutual mistake were fully investigated and ascertained at the trial, and the last question to the jury was expressly put by the learned judge in order to elicit whether or not there had been such a mistake, no injustice has been done to the appellants by the decision of the learned judge, and this court ought not to disturb that decision on a mere technical objection which is devoid of merits."

He went on to indicate that, in his judgment, unilateral mistake, which was admittedly pleaded, was sufficient to entitle the plaintiffs to uphold the judgment appealed against.

"It is quite true that Mr Pritt contended that mutual mistake was not pleaded, but I doubt whether the defendants ought to be allowed to rely on this, having regard to the fact that their counsel had assented to a question relevant to this issue being asked of the jury, subject only to the objection that it could only be answered in one way. However this may be, I think the statement of claim, so far as it is based on mistake, is sufficiently wide to cover the case of mutual mistake, though it is not entirely satisfactory."

The approach of Greer LJ was based upon the plea that the agreements were made, and the moneys paid thereunder were paid under a mistake of fact, extending either to unilateral or to bilateral mistake. Although he suggested that the plea, as it stood, was somewhat embarrassing, and that objection might have been taken to it on that ground before the case came on for trial, he thought it did cover the case of mutual mistake and the defendants had notice that the trial Judge so regarded it. No evidence, except what was in fact called, could have thrown any light on the question the Judge had to decide - namely, whether the mistake was of such a character as the law would recognise as putting an end to the contract. In the present case, of course, strong objection has been taken by the respondents to any attempts by the appellant to go behind the admission.

25 The decision of the Court of Appeal went on appeal to the House of Lords [1931] UKHL 2; [1932] AC 161 and was reversed.

26 Lord Blanesborough considered the pleading to be abundantly clear and said that it was the state of mind of Levers alone which was being described. Lord Warrington, with whose judgment Lord Hailsham agreed, indicated that he had no hesitation in coming to the same conclusion as that arrived at by Scrutton and Lawrence LJJ on the pleading point. Lord Atkin was of the view that the pleading was confined to unilateral mistake and that the trial Judge had, without the consent of the parties, no jurisdiction to determine issues of fact not raised by the pleadings. He expressed the view, without deciding the matter, that much may be said for the contention that the points upon which the plaintiffs succeeded were not open to them. Lord Thankerton found it unnecessary to deal with the point. That decision does not appear to me to assist the appellant.

27 Some reliance was also placed by the appellant on the judgment of Lord Denning MR in Re Vandervell's Trusts (No 2), where his Lordship stressed that it was sufficient for the pleader to state the material facts without stating the legal result, and that if he does so, he is not bound by, or limited to, what he has stated. That is of no assistance to the appellant in the present case, in which agreements were pleaded and admitted. No facts were pleaded to challenge the existence of the agreements. On the contrary, the appellant, in par 6 of the defence, pleaded what was clearly a condition subsequent. In subpar (vi) of that paragraph, it is pleaded that, by the letter dated February 1991, the appellant accepted the respondents' offer. This plea was followed by pleas of implied terms, which are, in my opinion, inconsistent with there being no agreements. Furthermore, par 11 of the defence makes reference to the "termination" of the agreements, which necessarily presupposes, it appears to me, that there were concluded agreements.

28 The appellant also sought to rely upon Stubbe v Jensen [1997] 2 VR 439. But that was a case in which a contractual duty as well as a tortious duty was pleaded. The contractual duty was not abandoned and had been part of the plaintiff's case at all relevant times, although it was not asserted in the plaintiff's final address. It could not, therefore, be said, the Court of Appeal concluded, that the plaintiff was departing from the common basis on which the matter was conducted at the trial when the contractual duty was again pressed by the plaintiff on the appeal. That does not assist the appellant in this case.

29 As a matter of pleading, in my view, the appellant's argument cannot be sustained.

30 In Atkins Court Forms, vol 12(2), 2nd edn, 1995 Issue, at 38, it is said:

"A statement that a thing has been done or that an event has occurred, being a thing or event the doing or occurrence of which, as the case may be, constitutes a condition precedent necessary for a case of a party, is to be implied in his pleadings (RSC O 18 r 7(4); Gates v Jacobs [1920] 1 Ch 567). Any condition precedent the performance or occurrence of which is intended to be contested must be distinctly pleaded."

31 At 64, it is stated, after referring to the need to deny some matter of fact:

1. a statement whether the defendant admits or denies the contract alleged; If he wishes to allege that though a contract was made, its terms were otherwise than as stated in the statement of claim he should either state his version of the contract with precision, or say that he will refer to the contract at the trial for its full terms and effect.

2. a statement of any condition precedent relied upon by the defendant as not having been performed or fulfilled;

3. if the contract is admitted, or, where the contract is denied or not admitted but other grounds of defence exist, a statement of the facts or matters relied on as showing that the plaintiff is not entitled to the relief claimed;

32 Form 44, at 100, sets out a defence denying that all the terms of a contract had been agreed:

"1. It is denied that the defendant made the agreement alleged in paragraph 1 of the statement of claim, or any agreement with the plaintiff.

2. The plaintiff's offer was contained in the letter dated ...... 19.... referred to in paragraph 1 of the statement of claim and was stated to be "subject to strike and lock-out clauses".

3. No form of strike and lock-out clauses was agreed between the plaintiff and the defendant.

4. By reason of the aforesaid matters it is averred that there was no binding or concluded agreement made between the parties.

33 Bullen & Leake & Jacob's Precedents of Pleadings, 13th edn, 1990, at 1097, provides the appropriate pleading for a defence denying the conclusion of any agreement:

"1. Subject to their production, the defendant admits the documents mentioned in paragraph ..... of the statement of claim and will refer thereto for their full terms and effect. The defendant denies that the alleged or any contract between the parties was made by or contained in or is to be inferred from the said documents or any of them.

2. Further, the defendant denies that any contract was concluded between the parties either in the terms alleged in paragraph ..... of the statement of claim or upon any other terms."

34 In my opinion, the forms set out in Atkins and in Bullen & Leake & Jacob indicate how the defence might properly have been pleaded to raise the issues which are now sought to be raised.

35 Both parties in their submissions with respect to the present application have referred to passages in the transcript of the argument before the learned trial Judge. Some of those passages are undoubtedly ambiguous, and some are contradictory, but in the end, the position appears to me to be as follows. At every stage, the respondents challenged the appellant's right to argue that there were no concluded agreements. The case at no time was allowed to proceed on some basis which was inconsistent with the pleadings. An endeavour to withdraw the admissions in par 6 of the defence was rejected by the Acting Master, and there was no appeal against that decision. As the learned trial Judge said, to have revisited the issue would have been to permit a collateral attack on the integrity of the ruling. The appellant attempted to avoid the consequences of that decision at the commencement of the trial, but again was unsuccessful, his Honour proceeding on the basis that the course of the action was to be governed by the pleadings, including the critical admissions. It is true to say that his Honour did consider the matter of uncertainty, on the assumption that, "despite the apparent clarity of the pleadings, it was possible for the respondent to mount such a case". But he went on, correctly in my view, to say that the pleadings effectively removed any issue of uncertainty from contention. To enable the appellant to amend the grounds of appeal, it appears to me that it would also be necessary to amend the defence, and that has not been sought.

36 In the circumstances, I would dismiss the appellant's application for leave to amend the notice of appeal.

37 PIDGEON J: I agree with the reasons of Kennedy J.

38 SCOTT J: I have had the advantage of reading in draft the reasons of Kennedy J with which I agree. I have nothing further to add.