Kew Yee v Wellington [2025] QSC 121

1. Additions, likely written by Mr Kew Yee, to give the remake a mixed reggae/rap feel known as 'ragga',[1] included:

I'm jammin' island reggae reppin' blue, green and yellow

Me tappin' on mi beat, make you slow whine for me, baby

• [4] As between the parties, it was the Cairns based Mr Wellington who initiated the process of remaking and recording the song and Mr Wellington who controlled the commercial release of the audio and audio visual recording of the song performed by him and Small Jam.
• [5] The recording apparently enjoyed financial success, yet Mr Kew Yee and Mr Hani complain they have been paid nothing. They are now suing Mr Wellington. Because the nature of the parties' commercial relationship and financial entitlements was not expressly agreed, the plaintiffs' case is founded upon inferences.
• [6] The plaintiffs' attempts to plead that case have progressed to what is now the Third Amended Statement of Claim ('SOC'). Mr Wellington complains the case is inadequately pleaded and applies to strike out parts of the SOC. His application must succeed in respect of parts of the SOC, discussed individually later in these reasons.
• [7] In meeting the application, the plaintiffs conceded their pleadings had some deficiencies, though not to the extent alleged by Mr Wellington. In effect the theme of their submissions was that it would be unjust if they were not entitled to reasonable remuneration in the form of a 50:50 share of the net enrichment generated by their roughly equal collaboration with Mr Wellington. Such an argument is apt for deployment at the mediation the court was told is soon to occur in this matter. But it is no answer to the need for the SOC to properly identify and plead that entitlement and the facts and cause(s) of action which allegedly give rise to it.
• [8] It is not for the court to advise the plaintiffs what those facts or cause(s) of action might be. However, to explain the present inadequacies of the SOC it is necessary to explain how it appears there was, at least by implication, an agreement by conduct to collaborate in creating the recorded remake.

There was conduct supporting the implication of an agreement to collaborate to create the remake

• [9] In 2015 at Honiara, Mr Kew Yee and Mr Hani were allegedly advised by Alain Lecante, the owner of a music label they were once 'signed' to, that Mr Wellington wanted to remake the song 'Iko Iko'.
• [10] Mr Lecante advised Mr Kew Yee and Mr Hani that Mr Wellington wanted to remake the song with artists, whom Mr Lecante trusted, from the Solomon Islands, bringing a 'Ragga rap' into the remade version.
• [11] In a chain of communications between Mr Wellington and Mr Lecante from 2 July 2015 to 2 October 2015, Mr Wellington provided what he described as the instrumental file and a vocal guide, explaining he wanted 'a Ragga part for it', to use as a kind of alternative Ragga chorus which would be inserted into the arrangement at different parts to add 'hype and variety'. Mr Wellington explained:

'Something like 8-12 bars will be perfect. Ask them if they can do two versions that are mostly the same but varied just a little bit to make each section slightly different. In terms of the subject matter and lyrics, they can make it vague or in other words the lyrics don't have to be anything specific ..... just about partying or something happy and hype like that. That will be perfect. And with the recording of the Ragga part, tell them that they can use any part of the instrumental that they prefer because the arrangement and order is not edited or finalised yet.'

• [12] Mr Wellington also supplied a short demonstration track, explaining:

'Okay so that's just a quick demo, the rest of the song kind of repeats along that similar line as well. That's why I want the Ragga break it up a little bit.'

• [13] Mr Kew Yee proceeded to write the lyrics to be inserted. Those lyrics were deployed in a vocal performance Small Jam proceeded to record, which was then forwarded in an audio file from Mr Lecante to Mr Wellington on 2 October 2015.
• [14] In early 2016 Mr Wellington initiated direct email contact with Mr Kew Yee, explaining he would be in Honiara from the 2nd to the 9th of February to 'do the video clip for Iko Iko with you guys'. Mr Wellington also sought Mr Kew Yee's recommendation as to who Mr Wellington should hire to shoot and produce the video clip and Mr Kew Yee provided that advice.
• [15] The shoot for the video clip apparently occurred in late August 2016. In an audio file message from Mr Wellington to Mr Kew Yee of 31 August 2016, he asked after how the end of the video shoot went and then requested a copy of Mr Kew Yee's lyrics, saying:

'Um ah bro oh can you do me a favour bro? Can you please write your lyrics from Iko Iko for me ah so that when I do the publishing I'll have the lyrics and also um when I perform it live I am going to have to do your part so can you write lyrics for me bro? That will be good. Thanks man. Talk soon.'

• [16] The ensuing published audio and visual recordings of Mr Wellington and Small Jam's performance included the singing contributions of Small Jam and Mr Kew Yee's lyrics.
• [17] At the outset of the recorded song the fact of Small Jam's contribution is made apparent by the lyric 'Small Jam alongside JW'. Later in the song, in two separate parts of the lyrics, appear the lyrics, 'Jammin' the Small Jam way'. Further, the video recording of the song (accessible, amongst other locations, on YouTube) names Small Jam as performing the song with Mr Wellington and it shows Small Jam performing the song.
• [18] The history of the parties' collaboration in creating the remake demonstrates there likely was, by implication, an agreement by conduct between the parties that they would collaborate to create the remake.
• [19] The collaborative remaking of the song was obviously a commercial rather than charitable enterprise, relying substantially upon Small Jam's involvement in it. It is therefore unsurprising Mr Kew Yee and Mr Hani claim they should share in the financial fruits of their collaboration with Mr Wellington. But on what basis?

The pleadings do not allow the reader to know the inferred facts to be relied upon in support of each cause of action

• [20] Setting aside an alleged breach of Mr Kew Yee's copyright in the song, dealt with later in these reasons, the causes of action alleged in the SOC appear to be:

(a) breach of the terms of an agreement described in the SOC as 'the Iko Iko agreement'; or

(b) breach of fiduciary duties deriving from:

(i) a specific purpose partnership; or

(ii) a joint venture; or

(iii) an implied trust; or

(iv) a constructive trust.

• [21] The lax attention given to the parties' financial interests in this enterprise left them without an expressly documented contract or trust, making it inevitable that, if any of the alleged causes of action are sustainable, they arise as a matter of inference.
• [22] The circumstantial nature of the case means that the path to proof of the plaintiffs' case at trial will involve a three step process of:

(1) adducing direct evidence of foundational facts,

(2) from which foundational facts they will invite inferences of intermediate fact,

(3) to in turn allege a cause of action to be inferred from the foundational and intermediate facts.

• [23] The intermediate facts in step (2) must be pleaded because they are to be relied upon as material facts in step (3) and r 149(1)(b) Uniform Civil Procedure Rules requires pleadings to state 'the material facts on which the party relies'. Rule 149(1)(b) does not require the pleading of the evidence by which those facts are to be proved. However, r 149(1)(c) does require the pleading of 'any matter that if not stated specifically may take another party by surprise'. If material facts are to be relied upon by Mr Kew Yee and Mr Hani in inferring a cause of action then r 149(1)(c) entitles Mr Wellington to know what those facts are, to avoid being taken by surprise at trial.
• [24] They must also be pleaded because the SOC alleges alternative forms of breach of contract or trust and r 150(2) requires that any fact from which such matters are to be inferred must be specifically pleaded.
• [25] Unfortunately, the SOC pleads the allegations it apparently wants to prove in steps (1) and (3) but fails to plead much about the intermediate facts in step (2).
• [26] Exacerbating the problem is that various foundational facts are pleaded and then collectively relied upon in support of some intermediate facts and of the causes of action. Yet at least some of the foundational facts collectively relied upon do not appear to provide such support in each instance. The reader is left to guess which of the collectively pleaded foundational facts will be relied on in respect of each of the intermediate facts (to the extent any are pleaded) and each of the causes of action.
• [27] These flaws may in part derive from the pleader's persistence with the initially adopted pleading structure in amending the statement of claim, rather than amending by pleading a completely re-structured amended statement of claim afresh. However, the result is a pleading of various foundational facts collectively demonstrating there was a commercially motivated collaboration but scant clarity as to how such facts give rise to the actual causes of action relied upon to remedy the plaintiffs' lack of financial reward.

Parts of the SOC should be struck out as having a tendency to prejudice or delay the fair trial of the proceeding

• [28] Rule 171 empowers the court to strike out a pleading which has a tendency to prejudice or delay the fair trial of the proceeding. The pleadings which I will strike out have that defective quality in that they leave the reader to guess what is meant, with the result that surprise at trial, and thus prejudice or delay, will follow.
• [29] Mr Wellington also contended various pleadings should be struck out pursuant to r 171 as disclosing no reasonable cause of action. Those contentions need not be determined because, in any event, the finding of tendency to prejudice or delay a fair trial justifies the strike outs.
• [30] I turn to discrete consideration of the problematic sections of the SOC.

The allegation of agency is inadequately pleaded

'7. Sam Alain Lecante (Alaine) is the owner of Mangrove Productions, Noumea, New Caledonia. Small Jam was signed to the Mangrove Label from around 2014 to mid-2020. From a date prior to 2 July 2015, Alain was the defendant's agent with respect to the Iko Iko Agreement.'

• [32] The allegation of fact that Mr Lecante was 'the defendant's agent' is inadequate. Asserting he was the defendant's agent 'with respect to the Iko Iko agreement' does little to identify the nature and scope of the agency.
• [33] More problematically, it appears from the filed evidence that the allegation of agency will be said to arise by inference. Yet it is not accompanied by any pleading identifying the facts from which the agency is to be inferred. The reader is left to guess what those material facts might be, not knowing whether they are facts buried elsewhere in the SOC or have not been pleaded at all.
• [34] The bare allegation of the fact of agency cannot be permitted to stand. Even the plaintiffs' counsel seemed to concede as much, positing that perhaps the role of Mr Lecante was as a conduit of an invitation.
• [35] The allegation of agency in the last sentence of paragraph [7] of the SOC should be struck out.
• [36] Two other points are relevant in this context. The first point is that the above quoted paragraph [7] of the SOC pleads multiple allegations within it, contrary to r 146(1)(f)'s requirement that separate allegations be numerically divided. While that point was not the topic of complaint, if another amended SOC is to be filed it should comply with that requirement.
• [37] The second point heralds structural issues with the pleading of the Iko Iko agreement and its terms at paragraphs [8] and [9] of the SOC. It appears likely the pleading of the alleged fact of agency in paragraph [7] was made in support of the inference that Mr Lecante's communications with Mr Kew Yee and Mr Hani in 2015, preceding the eventually direct communications between them and Mr Wellington in 2016, were made as Mr Wellington's agent.
• [38] That inference was evidently thought to be necessary to allege, as the SOC does at [8], that the Iko Iko agreement was entered into 'on a date prior to October 2015'. However, it is not apparent why it is thought necessary to establish the agreement, if there was one, was entered into prior to then. If the plaintiffs' real case is that the agreement's existence is to be inferred from conduct, then the timing of its formation may have spanned time, potentially including the time of Mr Wellington liaising and working directly with them during 2016. To illustrate the point, paragraph [9(e)] of the SOC pleads facts, described in later paragraphs of the pleading, as particulars of facts from which the terms of the so-called Iko Iko agreement are said 'to be implied'. Those facts include the various ways in which, as these reasons have already explained, Mr Wellington liaised and worked directly with Mr Kew Yee and Mr Hani during 2016, for example the recording of the video clip of their performance of the song.
• [39] In any event, the ensuing analysis of the difficulties with paragraphs [8] and [9] of the SOC is necessarily premised on the agreement being pleaded as having come into existence before October 2015.

The Iko Iko agreement and its terms are inadequately pleaded

• [40] The Iko Iko agreement and its terms are pleaded as follows:

1. On a date prior to October 2015, Justin and Small Jam entered into an agreement whereby they collaborated on an audio recording and music video of a South Seas Reggae cover version of the song, Iko Iko (the Iko Iko Project)

(a) The Iko Iko Agreement was partly oral and partly to be implied.

(b) ...

(c) Insofar as it was oral it was contained in:

(i) ...

(ii) a conversation between Alain (on behalf of the defendant) and Richard on a date before July 2015 at the King Solomon Hotel in Honiara, Solomon Islands, in which Alain told Richard that Justin had invited Small Jam to collaborate with him on a South Seas Reggae cover version of the song Iko Iko

(iii) An Mp3 voice file dated 2 July 2015, by which Justin provided to Alain a vocal guide for Small Jam and requested "ragga".

(d) Insofar as it was implied, it was to be implied in order to give the Iko Iko Agreement business efficacy and by

operation of law, and by the parties' conduct described at paragraphs 13 to 20, 32, 33, 35 and 37 below.

(e) The parties' assent to the Iko Iko Agreement can be inferred from the conduct described at paragraphs 13 to 20, 24 - 25 and 29.

9. There were terms of the Iko Iko Agreement that:

(a) Justin and Small Jam would collaborate for the purpose of the Iko Iko Project;

(b) Justin and Small Jam would get equal billing on any audio and/or video releases from the Iko Iko Project;

(c) Justin would cover the production costs;

(d) Justin would recover his expenditure on production, and thereafter any income from the commercial exploitation of the Iko Iko Project, including but not limited to, artists' royalties, streaming or other sources would be divided equally between Justin on the one part and Small Jam on the other part.

(e) Justin would act in good faith.

The terms are express, insofar as they were contained in oral communications referred to in the particulars to the preceding paragraph, or are to be implied in order to give the Iko Iko Agreement business efficacy and by operation of law, and by the parties' conduct described at paragraphs 13 to 20, 24 - 25, 29, 32, 33, 35 and 37 below.

• [41] Paragraph [8] pleads that prior to October 2015 the parties 'entered into an agreement whereby they collaborated on an audio recording and music video' etc. It is uncertain what the word 'whereby' is supposed to mean in that context. The addition of a bracketed name, 'the Iko Iko Project' does not bring clarity to this aspect because it is unclear whether that name is intended to be descriptive of the agreement or the work undertaken in the collaboration or the product generated by the collaboration or a mix of all or some of those things.
• [42] Given the collaboration for the music video was yet to occur, perhaps the words 'whereby they collaborated' are intended to mean 'whereby they agreed to collaborate' etc. But if so, why mention it at all given the alleged agreement's alleged terms, including that the parties 'would collaborate', are pleaded in paragraph [9]? In any event, the point is that the reader should not be left to guess at what the words are intended to mean.
• [43] It is also problematic that the first sentence of paragraph [8], before the commencement of the particulars of what the sentence says, conflates the fact of the timing of the agreement, viz 'a date prior to October 2015', with the fact of the existence of the agreement, viz that the parties 'entered into an agreement'. That is not problematic per se. Rather, it is problematic because it is not always obvious whether the ensuing 'Particulars' of that sentence are intended to be particulars of the agreement's existence, or of when it came into existence, or of both. Reading the opening words of each literally, they seem to be particulars of the agreement's existence. The reader is effectively left to guess at which of them are also intended to be particulars of the agreement coming into existence prior to October 2015.
• [44] It is obvious that some such particulars cannot be pleaded for that purpose. For example, the particulars in paragraph [8(d)] provide particulars of conduct, referring to later paragraphs of the SOC, which refer to events occurring both before and after October 2015.
• [45] That example exposes a further problem. Facts occurring after October 2015 may be relevant in inferring what the terms of an agreement must have been or that the agreement had come into existence later, but they cannot sensibly be regarded as particulars of entering into an agreement on a date prior to October 2015. The upshot is that paragraph [8]'s pursuit of the fact of existence of an agreement entered into 'prior to October 2015' is conflated with facts relevant to the inference of an agreement coming into existence gradually or relevant to inferences as to the agreement's terms.
• [46] Another flaw in paragraph [8] is that the facts it pleads at (c)(ii) and (iii) as particulars of the oral agreement, as opposed to the agreement to be implied, contain no oral agreement. At best they are facts which might, if combined with other facts, give rise to inferred facts from which an agreement might potentially be implied.
• [47] The intended meaning of paragraph [8] is even further obscured by the way its particulars at (d) plead the implication of the agreement 'in order to give the Iko Iko Agreement business efficacy and by operation of law, and by the parties' conduct' etc. It is non-sensical to assert the implication of the existence of the agreement by assuming it exists and pleading that's its existence is necessary to give it business efficacy. Terms of an agreement might arguably need to be inferred to give it business efficacy but, if so, that would be relevant to paragraph [9] about terms, not paragraph [8]'s pleading of the agreement's existence.
• [48] The way most of these flaws weave through paragraph [8] makes it impractical to remove them by only striking out discrete parts of it. In its present form paragraph [8] has a tendency to prejudice or delay the fair trial of the proceeding and should therefore be struck out.
• [49] Turning to paragraph [9], it pleads some terms followed by particulars. The particulars include the assertion that the terms are express insofar as they are contained in oral communications referred to in the particulars to paragraph [8]. If this is supposed to be a reference to the aforementioned particulars of supposed oral agreement at [8(c)(ii) and (iii)] those particulars bear no apparent correlation to any of the terms in [9]. For example, [8(c)(iii)] describes a communication between the defendant and his alleged agent. It is not apparent how such a communication could evidence an express term of an agreement between the defendant and the plaintiffs.
• [50] If the assertion of express terms is supposed to be a reference to other particulars of [8] then which ones is it supposed to be a reference to? It is not apparent that any of them contain express reference to any of the terms. Even term (a), that the parties would collaborate, is not expressly articulated in the communications and seemingly would only arise by inference from the facts describing the process by which their collaboration was arranged and executed.
• [51] Another difficulty with paragraph [9] is that it deploys the words 'Iko Iko Project' but as earlier explained it is not clear what those words are supposed to mean.
• [52] There is a broader problem with the pleading of paragraph [9]. It pleads five terms of the agreement and then follows with a single, undiscerning dump of many particulars. That dump includes the parties' conduct described in facts alleged in many of the ensuing paragraphs of the SOC. The difficulty for the reader is that there is no way of knowing which of the facts identified in the particulars are relied upon as particulars of which of the pleaded terms. It is obvious from their content that all of those facts could not relate to all of the terms. In many instances it is not apparent how they support the inference of any of the terms, per BP Refinery (Westernport) Pty Ltd v Shire of Hastings,[2] as so obvious as to go without saying.
• [53] In the apparent absence of any clearly expressed agreement, the factual allegation of each term of the agreement appears, in each instance, to be an allegation of inferred intermediate fact. As already explained, the pleader must identify which foundational facts are alleged to sustain each such inferred intermediate fact. The particulars do not separate the facts out in that way.
• [54] For example, the source of the term pleaded at [9(d)], that there would be an equal sharing of the project's net income, is not apparent. It seems likely from some submissions advanced by the plaintiffs' counsel that their case will be that some of the foundational facts, most obviously the nature of the specific creative contributions which each party made in collaborating to create and perform the song in both audio and visual form, collectively sustain an inference of material fact that the relative combined creative contributions of each side were about 50:50. If so there needs to be a clear identification of what each of the specific contributions were that are said to collectively sustain that inference of material fact. For example, is the proportion of lyrics contributed by the parties said to be equal? Is the amount of singing performed by the parties said to be equal? Is the time occupied on screen in the video by the parties said to be equal? Is the creative input of the parties said to have been equal? These are all examples of the types of intermediate facts which ought be pleaded if they are to be relied on.
• [55] In its present form paragraph [9] has a tendency to prejudice or delay the fair trial of the proceeding and should be struck out.

The allegations of a specific purpose partnership or joint venture are inadequately pleaded

• [56] As an alternative to the alleged agreement paragraph [10] pleads:
  1. Alternatively, the business relationship between the parties arising from paragraph 8 was that of a specific purpose partnership or joint venture for the Iko Iko Project (the Iko Iko Partnership).

The Iko Iko Partnership was to be inferred from the matters pleaded in paragraphs 8 above and 13 to 23, 24, 25, 29, 32, 33 and 37 - 39 below.

• [57] It may immediately be observed that paragraph [10] talks of a business relationship, in the form of a specific purpose partnership or joint venture 'arising from paragraph 8'. This foundational reliance upon paragraph [8] is not merely a problem because paragraph [8] is being struck out.
• [58] It will be recalled paragraph [8] pleaded the parties' 'entered into an agreement'. Paragraph [10] specifically grounds the allegation of specific purpose partnership or joint venture upon the 'business relationship' arising from paragraph [8], viz, that the parties 'entered into an agreement'. What then are the terms of the specific purpose partnership 'agreement' or the joint venture 'agreement'? They are not pleaded.
• [59] The plaintiffs submitted it was not necessary that there be an agreement in order to infer the existence of a specific purpose partnership or joint venture, citing United Dominions Corporation Ltd v Brian Pty Ltd.[3] It is unnecessary to decide that point, for the plaintiffs' method of pleading paragraph [10] relies upon the existence of the agreement pleaded in paragraph [8].
• [60] A further problem is that the particulars to paragraph [10] rely upon the matters pleaded in paragraph [8] as well as other later paragraphs of the SOC, some of which are additional to the paragraphs included in paragraph [8]'s particulars. How can it be that the business relationship allegedly 'arising from' paragraph [8] arises from facts other than the facts pleaded in, or as particulars of, paragraph [8]? The reader is left to be surprised by what this foundational inconsistency means for the case to be met at trial. Either the opening sentence of paragraph [10] is wrong or the particulars are wrong.
• [61] Paragraph [10] also suffers from the recurring difficulty that it deploys the words 'Iko Iko Project' but as earlier explained it is not clear what those words are supposed to mean.
• [62] The result of these problems is that paragraph [10] in its present form has a tendency to prejudice or delay the fair trial of the proceeding and should be struck out.

The allegations of an implied or constructive trust are inadequately pleaded

• [63] Paragraph [11] of the SOC pleads an implied or constructive trust:
  1. Further or alternatively, all rights in the Iko Iko Project were and are held on an implied or constructive trust equally by Justin and Small Jam (the Iko Iko Constructive Trust) whereby there were joint contributions, the parties' had an intention that the contributions be for mutual enjoyment and there was refusal by Justin to recognise Small Jam's and Richard's interests.

The Iko Iko Implied or Constructive Trust was to be inferred from the matters pleaded in paragraphs 8 above and 13 to 20, 23, 24, 25, 27, 27(1), 29, 30, 30(1), 32, 33, 34(b) and 37 - 39 below.

• [64] As a preliminary point, the earlier identified lack of clarity in what the words 'Iko Iko Project' are intended to mean is immediately problematic because those words are used at the outset of paragraph [11].
• [65] A more determinative and obvious problem with paragraph [11] is that it pleads the existence of a trust of one kind or another (step (3), in the path identified earlier in these reasons) and a multitude of foundational facts as particulars thereof (step (1)). But it does not plead the material intermediate facts to be inferred from those foundational facts as giving rise to either such trust (step (2)).
• [66] The existence of such trusts is premised upon the existence of their elements. A necessary path to proof of either trust at trial will be proof of the existence of those elements as material facts at trial. Some such facts will inevitably be intermediate facts, arising by inference from foundational facts. The plaintiffs are therefore obliged to plead those intermediate material facts and clearly indicate which foundational facts are said to give rise to them.
• [67] Paragraph [10] does none of that. It leaves Mr Wellington to be surprised at trial, has a tendency to prejudice or delay the fair trial of the proceeding and should be struck out.

There is no pleaded breach of copyright and loss

• [68] Paragraph [14] of the SOC alleges Mr Kew Yee wrote lyrics of the remake and those lyrics are clearly pleaded. But there then follows these associated pleadings:

14(1) Richard was a Solomon Islands citizen, or a resident of the Solomon Islands, at the time he created the New Lyrics and enjoys national treatment under the Copyright Act 1968 Cth (the Copyright Act) pursuant to Articles 5(1) and 6bis (sic) the Berne Convention for the Protection of Literacy and Artistic Works under the World Trade Organization.

14(2) The New Lyrics are a literary work within the meaning of Part III and Part IX of the Copyright Act.

• [69] Those pleadings seem to be intended to lay the foundation for a breach of copyright claim. The prayer for relief seeks a declaration at [L] of Mr Kew Yee's copyright ownership and damages at [M] for breach of Mr Kew Yee's moral right to attribution under the Copyright Act 1968. But there is no breach of copyright or loss deriving from the breach pleaded anywhere in the SOC.
• [70] This omission means the pleading of paragraphs [14(1), (2) and (3)] could only be relevant to the seeking of the declaration at [L]. It means pleaded paragraph [M] in the prayer for relief is irrelevant and should be struck out.

• [71] After pleading breaches at paragraphs [41] and [42] the SOC pleads damage as follows:

1. By reason of the matters set out above, the plaintiffs have suffered loss and damage and will continue to suffer loss and damage unless the defendant is restrained from continuing his wrongful conduct by this Honourable Court.

• [72] This utterly uninformative, yet critically important paragraph is bereft of any particularity at all. What is the nature of the loss and damage? How is it said to derive from the respective breaches? Do the breaches give rise to different forms of loss and damage? None of the answers to those questions is apparent from the paragraphs which paragraph [43] says are 'set out above'. The defendant is left to be surprised by the answers to those elementary questions at trial.
• [73] Paragraph [43] should be struck out.

• [74] The above reasons mean that pivotal parts of the SOC, particularly the paragraphs founding the causes of action and alleging loss and damage, should be struck out. It is therefore inevitable that any re-pleading will necessitate substantial changes, with likely impact upon the pleading of the plaintiffs' case generally.
• [75] The probability of change of that degree makes it unnecessary to deal with some of the less significant arguments advanced by the parties about the adequacy of some other parts of the SOC not addressed above.
• [76] Mr Wellington flagged an intention, if successful as he has been, to argue the plaintiffs should be required to seek leave to replead their Statement of Claim. If he still wants to advance that argument it will be necessary to hear it next.
• [77] My tentative view, subject to any such argument, is there should not be such a requirement, and that costs are a sufficient remedy for the inconvenience occasioned by the inadequate pleading of the plaintiffs' case. It is important to appreciate the claim has substance in that it is founded in evidence credibly grounding the potential implication of substantial remunerative entitlements from an obviously commercial collaboration. It may be premature to impose a requirement, which if not met, would bring an early end to the pursuit of much or all of such a claim. That is not to suggest the varied and vague course taken in pleading the plaintiffs' case to date can continue indefinitely.
• [78] On the face of it the costs of the application to date should follow the event but my orders will allow the parties an opportunity to be heard as to costs if costs are not agreed. This would include hearing argument on costs thrown away because of the filed application having been met at the outset of its hearing with the giving of leave for the filing of the SOC.

1. The following content of the Third Amended Statement of Claim (with the general topic of each included in brackets for ease of reference) is struck out:

(a) the last sentence of paragraph [7] (the allegation of agency); > > (b) paragraph [8] (the agreement); > > (c) paragraph [9] (the terms); > > (d) paragraph [10] (the partnership or joint venture); > > (e) paragraph [11] (the implied or constructive trust); > > (f) paragraph [43] (damage); > > > (g) paragraph [M] (prayer for relief via damages for breach of copyright).

1. I will hear the parties as to whether the plaintiffs should be required to seek leave to replead their Statement of Claim (if the defendant continues to maintain they should) and as to costs (unless costs are agreed in the meantime) at 9.15 am, 18 June 2025.

1. [1] According to the Macquarie dictionary, 7th Edition, 'ragga' means 'a type of drum and bass dance music featuring reggae samples and rap improvisations'.

[3] [1985] HCA 49; (1985) 157 CLR 1, 12.