NIGHTKAP PTY LTD -v- CENTURION TRANSPORT CO. PTY LTD [2025] WASC 140 (30 April 2025)

(a) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;

(b) in alleging no reasonable cause of action:

(i) the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and

(ii) 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;

(c) the mere fact that a case appears weak is not of itself sufficient to strike out the action;

(d) provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment; and

(e) pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.

1. The plaintiff's claim is for breach of a written Warehouse Services Agreement and for breach of a duty of care.
2. The claim for breach of contract is pleaded in paragraphs 4 to 8 of the statement of claim.
3. Paragraph 4 of the statement of claim pleads various terms of the Warehouse Services Agreement.
4. Paragraph 4(a) of the statement of claim pleads that the plaintiff would pay for 'Services' (as that term was defined in the agreement) for the term of the agreement on the conditions of the Agreement.
5. Paragraph 4(b) of the statement of claim pleads that the term 'Services' was defined in cl 1 of the agreement to mean the following services supplied by the plaintiff to the defendant:

(a) storage of the plaintiff's goods on the agreed minimum footprint area at the warehouse site;

(b) container hand de-stuff;

(c) pallet unload;

(d) carton pick and pack;

(e) load and despatch; and

(f) any other services that are incidental to these services and as may reasonably be required by the plaintiff from time to time.

1. Paragraph 4(d) of the statement of claim pleads that the defendant would ensure that the Services are performed:

(a) by the defendant in a proper and workmanlike manner; and

(b) only by the defendant's representatives who were careful, skilled and experienced in their respective trades and calling: cl 3.2 of the Agreement.

1. Paragraph 4(i) of the statement of claim pleads that the parties agreed and undertook that they would continue to perform their obligations under the Agreement diligently until the termination of the agreement becomes effective.
2. Paragraph 5 of the statement of claim pleads that from the date of the Agreement until about November 2021, defendant provided 'other services' as set out below.
3. Paragraph 5 of the statement of claim continues by pleading that the fact that the Services were incidental and reasonably required by the plaintiff from time to time as is to be inferred from the defendant performing the following tasks:

(a) when the plaintiff's shipping agent published notice of the arrival of the plaintiff's stock, the defendant within a reasonable period notified the plaintiff's shipping agent of the defendant's capacity to receive possession from the plaintiff's shipping agent of the plaintiff's goods;

(b) recording accurately the use of pallets for the storage of the plaintiff's goods for the period when the plaintiff's goods were in the custody of the defendant and using the pallets;

(c) recording accurately the cessation of the use of pallets for the storage of the plaintiff goods when the usage of the pallets concluded or when custody of the goods stored on the pallets (and the pallets) were surrendered to a third party;

(d) reporting accurately to the owner of the pallets the date of commencement and cessation of the use of pallets in order that the of the pallets; and

(e) storing secure from loss or damage the pallets recorded by the defendant as being used by, or for, the plaintiff's goods.

1. At the defendant's request the plaintiff has provided further and better particulars of paragraph 5 of the statement of claim.
2. The plaintiff was asked to state the facts supporting the plaintiff's requirement for the Services and all the instructions to the defendant for the Services.
3. With regard to the notification of the defendant's capacity to receive possession of the plaintiff's goods, the further particulars provided were that:

(a) at all material times in Western Australia the defendant operated a transport business with the trucks available from time to time to transport goods from shipping agents to the defendant's storage facility;

(b) at all material times in Western Australia the plaintiff did not have a transport business available to transport goods from the shipping agent to the defendant's premises;

(c) on a date or dates presently unknown and to be determined if required after discovery, but not before the date of the Agreement, the plaintiff informed the defendant of, and granted access to, the information provided by the plaintiff's shipping agent through the agent's internet-based information for the arrival of the plaintiff's goods;

(d) on a date or dates presently unknown and to be determined if required after discovery and after the date of the Agreement, the defendant accessed the information provided by the plaintiff's shipping agent through the agent's internet-based information for the arrival of plaintiff's goods; and

(e) on a date or dates presently unknown, and to be determined if required after discovery and, after the date of the Agreement the defendant notified the plaintiff's shipping agent of the defendant's capacity to receive possession of the plaintiff's goods and subsequently transported the plaintiff's goods to the defendant's warehouse site which conduct conveys an inference of the request to perform those services as:

(i) the defendant had, by the Agreement, agreed to and had received payment from the plaintiff for storing the plaintiff's goods at the defendant's warehouse site; and

(ii) the defendant was unlikely to give that notice to the plaintiff's shipping agent or transport the plaintiff's goods and store the plaintiff's goods at the defendant's warehouse site independently of the entitlement of the defendant to receive payment for storage of the plaintiff's goods.

1. With regard to the recording and reporting accurately to the owner of the pallets of their use, the further particulars provided were:

(a) from time to time after the date of the Agreement the defendant took into its custody for the plaintiff, the plaintiff's goods and while the plaintiff's goods were in its custody, the defendant had control of the goods and the pallets on which the goods were stored at the defendant's warehouse site;

(b) at all material times the plaintiff did not have the means to record the use of pallets for the storage of the plaintiff's goods for the period when those goods were in the custody of the defendant;

(c) on a date or dates presently unknown and to be determined if required after discovery but not before the date of the Agreement, the plaintiff informed the defendant of, and granted access to, the plaintiff's account information provided by the owner of the pallets through the owner's internet-based information for the use of its pallets;

(d) on a date or dates presently unknown and to be determined if required after discovery, but after the date of the Agreement, the defendant accessed the plaintiff's account information provided by the owner of the pallets through the owner's internet-based information for the use of its pallets and updated that information with the details of the plaintiff's use and cessation of the use of the pallets; and

(e) on a date or dates presently unknown and to be determined if required after discovery but after the date of the Agreement, the defendant notified the owner of the pallets of the plaintiff's use and cessation of the use of the pallets as containing an inference of the plaintiff's request to provide notices in relation to the pallets as:

(i) the defendant had agreed to and had received payment from the plaintiff for storing its goods on the pallets; and

(ii) the defendant was unlikely to give those notices to the shipping agent independently of the entitlement of the defendant to receive payment for storage of goods.

1. With regard to the storing, secure from loss or damage, the pallets recorded by the defendant as being used by or for the plaintiff's goods, the further particulars provided were:

(a) the plaintiff and the defendant agreed (according to cl 1 of the Agreement) that the defendant would store the plaintiff's goods and unload those goods on pallets at the defendant's warehouse site;

(b) the plaintiff and the defendant agreed (according to cl 7.5 of the Agreement) that the defendant would be liable for losses or damages which are caused by a negligent act or omission by the defendant for which reasonable charges are payable; and

(c) at all material times the defendant knew from its dealings with the pallet owner and the plaintiff that the plaintiff would incur charges for the period that the plaintiff's goods were stored on the owner's pallets and the plaintiff would incur charges if the pallets were lost or destroyed or not returned to the owner of the pallets.

1. The further particulars stated that the reasonableness of the Services is inferred from the defendant's performance of the Services pleaded in paragraph 5 from about the time the Agreement was entered on or about 26 June 2014 until approximately November 2021.
2. The further particulars also stated that the defendant's agreement to perform the Services is to be inferred from the defendant's performance of the Services from about the time the Agreement was entered on or about 26 June 2014 until approximately November 2021.
3. Paragraph 6 of the statement of claim pleads that in the period from or about December 2021 to December 2022 the defendant did not ensure that the Services for the plaintiff were performed in accordance with the Agreement, in breach of the terms of the Agreement to do so:

(a) in proper and workmanlike manner; or alternatively;

(b) by the defendant's representatives who were careful, skilled and experienced in their respective trades; or alternatively; and

(c) diligently.

1. Paragraph 6 of the statement of claim included 'particulars in relation to shipping agents' which are that:

(a) When the plaintiff's shipping agent published notice of the arrival of the plaintiff's stock, the defendant did not notify the plaintiff's shipping agent within a reasonable period of the defendant's capacity to receive possession of the plaintiff's goods from the plaintiff's shipping agent.

1. Paragraph 6 of the statement of claim also includes 'particulars in relation to the receipt, storage and release of pallets' which are that:

(a) failed to record accurately the use of pallets for the storage of the plaintiff's goods for the periods that the plaintiff's goods were stored on the pallets while in the custody of the defendant and when the period concluded failed to accurately record the cessation of the use of the pallets;

(b) the defendant failed to record accurately to the owner of the pallets, Loscam Australia Pty Ltd ('Loscam'), the use and cessation of the use of pallets in order that the plaintiff was accurately charged by Loscam for the use of the pallets;

(c) the defendant failed to maintain possession of pallets recorded with Loscam as used for the storage of the plaintiff's goods; and

(d) the defendant failed to store securely from loss or damage pallets recorded by the defendant as being used by or for the plaintiff's goods.

1. Paragraph 7 of the statement of claim pleads that the alleged failure in relation to the shipping agents caused the plaintiff to incur costs for the storage and movement of the plaintiff's stock by the plaintiff's shipping agents pending notice from the defendant of the defendant's capacity to receive the plaintiff's goods from the plaintiff's shipping agents.
2. Paragraph 8 of the statement of claim pleads that the alleged failure in relation to the receipt, storage and release of pallets caused the plaintiff to incur charges payable to Loscam for the pallets either incorrectly recorded as used for the plaintiff's goods or lost such that the pallets were not being returned to Loscam.
3. The claim for negligence is pleaded in paragraphs 9 to 11 of the statement of claim.
4. Paragraph 9 of the statement of claim pleads that the defendant owed to the plaintiff a duty to take reasonable care of the pallets of Loscam that the defendant had recorded as being used by the plaintiff's goods in the defendant's custody.
5. With regard to the defendant's duty to take reasonable care of the pallets of Loscam that the defendant had recorded as used by the plaintiff, the plaintiff's further and better particulars referred to the particulars provided in relation to the accurate recording and reporting of the use and the storage of pallets.
6. Paragraph 10 of the statement of claim pleads that the defendant negligently and in breach of that duty, did not securely store the pallets in a manner that would ensure that those pallets were not lost or damaged and were capable of being returned to Loscam. The paragraph pleads that those pallets were not returned to Loscam when required by the plaintiff, or Loscam, to be returned.
7. Paragraph 10 of the statement of claim pleads that the defendant's negligence caused the plaintiff to incur the costs payable to Loscam.

Why the defendant submits the statement of claim should be struck out

1. While the defendants accept that the shape of the plaintiff's action emerges from the statement of claim, they assert that essential components are missing. They submit that the plaintiff does not plead when and how the defendant was to provide the 'other services', nor when and how it allegedly failed to do so (or did so inadequately, if that is the case the plaintiff puts).[1]
2. With regard to paragraph 5, the defendants submit that unlike paragraph 4 which pleads the terms of an agreement, paragraph 5 pleads matters of alleged historical fact. It is argued that no complaint is made about the provision of the services pleaded in the paragraph, and it is not later mentioned in the pleading. It is contended that paragraph 5 does not disclose or support a cause of action, is embarrassing and should be struck out. [2]
3. In my view, paragraph 5 pleads the nature of the 'other services' that it was alleged were provided and why it is alleged that those services were incidental and reasonably required by the plaintiff from time to time. Given that the plaintiff's claim is for the breach of an obligation to provide these other services, this paragraph seems to me to be an essential component of the statement of claim.
4. The defendants submit that it is not clear from paragraph 6 the allegation is one of a failure to perform or of inadequate performance, nor is it clear when or how each obligation to perform arose, nor when or how the obligation was either not performed or performed inadequately.[3]
5. The defendants submit that the particulars to paragraph 6 do not assist or sustain the plea. The defendants argued that, for example, looking at particular (i) by way of example:

(a) the plaintiff does not plead each instance of the incidental services that were 'reasonably required' by the plaintiff 'from time to time';

(b) it does not plead how those services are incidental within the meaning of the term of the contract pleaded at paragraph 4(b)(vi);

(c) it does not plead the date or dates on which the plaintiff 'reasonably required' the incidental service to be supplied;

(d) it does not plead the manner by which the plaintiff notified the defendant that it required the incidental service to be supplied; it does not plead when or how the defendant failed to perform (or adequately perform);

(e) it does not plead a contractual basis for the alleged obligation to supply within a 'reasonable time' nor, in respect of each act of alleged breach, does it plead what it alleges constitutes a reasonable time for performance.[4]

1. The defendants argue that similar complaints can be and are made about the other particulars. It is contended that as presently articulated, paragraph 6 is pleaded at a level of generality that makes it impossible for the defendant to understand, with clarity, the case put against it. That being so, it cannot, with precision, respond to the allegations.[5]
2. The defendants refer to paragraphs 7 and 8 which plead loss alleged to have been caused by the breaches pleaded in paragraph 6. They argue that if the plaintiff can plead causation and loss as it has then, logically, it can and must plead the breaches that are alleged to have caused the loss with a degree of precision beyond that which is currently and generally asserted in paragraph 6.[6]
3. In my view, paragraph 6 must be read with paragraph 5 and the further particulars that have been provided. When this is done it can be seen that the plaintiff does in fact does plead when and how the defendant was to provide the 'other services' and when and how it allegedly failed to do so.
4. It seems to me that the real issue with paragraphs 5 and 6 of the statement of claim is not that these matters are not pleaded at all but the level of generality at which they are pleaded. They are pleaded in generic terms, that describe the types of breaches that occurred without the individual identification of each breach. No dates are pleaded for when the alleged breaches occurred.
5. I note, however, that the further and better particulars indicate that the plaintiff is unable to plead dates at this stage of the proceeding and has indicated that further particulars of dates may be provided after discovery. Further, it seems likely that the plaintiff would require access to documents in the defendants' custody, control and power before it would be in a position to plead dates, or advance more specific pleas. In such circumstances, it may be inevitable that the plaintiff's pleading would be pitched at a high level of generality, at this stage of the proceeding.
6. I am satisfied that the matters pleaded are sufficient to disclose a reasonable cause of action for breach of contract.
7. I am concerned, however, that as the pleading is currently drafted, it omits particulars of matters which the plaintiff must be able to plead. In particular, it seems to me that the plaintiff must, or would likely, be in a position to plead matters concerning its own shipping agents.
8. At various points in the pleading and in the further and better particulars it is stated that the dates upon which the plaintiff's shipping agent did certain things are presently unknown. During the course of the hearing today, I raised with counsel for the plaintiff why it was that the plaintiff was not in a position to furnish those dates. It was explained to me that the plaintiff is currently in the process of collating documents which might assist to provide a more detailed understanding of when these events occurred.
9. It seems to me that there is some force in the defendant's submission that proper pleading of the plaintiff's case would require some indication of the number of breaches it is alleged have occurred and when, by reference to precise dates, those breaches took place. While the provision of details in relation to the conduct of the plaintiff's shipping agents would not necessarily be sufficient to identify these matters, it would no doubt be of some assistance.
10. I also have some reservations about the manner in which the plaintiff's claim has been pleaded. Many matters are addressed by way of particulars which, in my view, should be pleaded as material facts.
11. Importantly, counsel for the plaintiff during the course of the hearing today properly acknowledged that at some point prior to trial the particular allegations made by the plaintiffs all need to be addressed on a granular level. The plaintiff's view was that that could adequately be addressed through the provision of further particulars, but it was not suggested that that granular detail will not be provided.
12. In my view, it would have been preferable for that granular detail to have been provided now. Without that granular detail there is some force in the defendant's submission that they will not know the case that they will be required to meet.
13. While I would be prepared to allow the plaintiff a degree of leeway in relation to matters that plaintiff will be required to plead, which it is currently not able to plead because it does not have access to documents in the possession, power and control of the defendant, I do not consider that the plaintiff should be entitled to leeway in relation to matters which are within its knowledge, or can readily be in its knowledge, by it reviewing the documents in the possession of its shipping agent.
14. In those circumstances, I do consider that there is some force in the defendants' submission that as it is currently drafted, the plaintiff's statement of claim fails to fulfil the basic function of identifying the issues that the defendants must meet. In such circumstances, I consider that paragraphs 5 and 6 of the statement of claim should be struck out pursuant to O 20, r 19(1)(c), with leave to replead.
15. The plaintiff's application does not just seek to strike out paragraphs 5 and 6. It seeks to strike out the entire statement of claim. Paragraphs 5 and 6 and the particulars relating to those paragraphs provide the foundation of the claim made by the plaintiff for breach of duty. Essentially, it is the same factual matters which are relied upon to establish both the claim for breach of contract and the claim for breach of duty.
16. As I have said, I have reservations about the manner in which the pleading has been prepared more generally. Rather than strike out paragraphs 5 and 6 and certain other paragraphs of the statement of claim which relate to the claim for breach of duty, I consider that the better course is to strike out the entirety of the statement of claim, which is the primary relief sought by the defendants. That will permit the plaintiff to prepare a new pleading, which it might be anticipated, would include any granular detail they are presently able to provide, having accessed the information from their shipping agent.
17. I anticipate that it may well be that there are certain matters about which the plaintiffs are not able to provide any granular detail. And it might be that ultimately, if they have provided all of the detail that they can provide, it would be appropriate to progress the action without becoming too embroiled in pleadings disputes.
18. But in my view, given that the plaintiff is in a position to provide some granular detail, that the provision of that granular detail would assist the defendants to understand the case that they must meet, and would also assist to confine any obligation of discovery which might arise once the defence is filed, it seems appropriate to me that the entire statement of claim be struck out, with leave to replead and that a fresh statement of claim be prepared which addresses the various matters that I have identified.
19. For these reasons, I will make an order striking out the statement of claim.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[4] Defendant's Submissions, pars 7 - 8.