PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL –
SUMMARY JUDGMENT FOR
DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL –SUMMARY JUDGMENT FORDEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where theplaintiffs’ case arises outof discussions held between agents of some ofthe plaintiffs and the defendant – where the plaintiffs make claims based
on
unconscionability, negligence, breach of statutory obligations, misleading
and deceptive conduct and breach of contract – where
the 3rd to
8th plaintiffs were registered on dates after the alleged
representations and agreements were made – whether the 3rd to
8th plaintiffs have no real prospect of succeeding on all or part of
their claim – whether there is no need for a trial of the
claim or part of
the claim – whether summary judgment should be given with respect to these
plaintiffs pursuant to r 293 of
the Uniform Civil Procedure Rules
1999
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL –
SUMMARY JUDGMENT FOR
DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the
plaintiffs plead claims for breach
of a statutory obligation to act in good
faith and an unfair, unreasonable and inequitable exercise of power –
whether these
claims have no real prospect of succeeding – whether there
is no need for a trial of these claims – whether summary judgment
should
be given with respect to these claims pursuant to r 293 of the Uniform Civil
Procedure Rules 1999
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE
CAUSE OF ACTION
OR DEFENCE – where the defendant seeks to have the whole amended statement
of claim struck out – where,
alternatively, the defendant seeks to have
certain identified paragraphs of the amended statement of claim struck out
– whether
the amended statement of claim, or parts of the amended
statement of claim, disclose no reasonable cause of action – whether
all
or part of the amended statement of claim should be struck out pursuant to r 171
Uniform Civil Procedure Rules 1999
Australian Consumer Law, s 4(1)(a), s 18
Uniform Civil Procedure Rules 1999, r 157, r 162, r 171, r 293
Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252
Hungerfords v Walker [1989] HCA 8
(1989) 171 CLR 125
Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437
(1992) 37 FCR 526
Marks v GIO Australia Holdings Ltd [1998] HCA 69
(1998) 196 CLR 494
Palmer Street Developments Pty Limited & Anor v J & E Vanjak Pty
Ltd & Anor [2018] QCA 111
Pinson v Lloyds and National Provincial Foreign Bank Ltd [1942] 2 KB
72
Thorne v Kennedy [2017] HCA 49
(2017) 263 CLR 85
Judgment (93 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS - where the plaintiffs' case arises out of discussions held between agents of some of the plaintiffs and the defendant - where the plaintiffs make claims based on unconscionability, negligence, breach of statutory obligations, misleading and deceptive conduct and breach of contract - where the 3rd to 8th plaintiffs were registered on dates after the alleged representations and agreements were made - whether the 3rd to 8th plaintiffs have no real prospect of succeeding on all or part of their claim - whether there is no need for a trial of the claim or part of the claim - whether summary judgment should be given with respect to these plaintiffs pursuant to r 293 of the Uniform Civil Procedure Rules 1999
[2]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS - where the plaintiffs plead claims for breach of a statutory obligation to act in good faith and an unfair, unreasonable and inequitable exercise of power - whether these claims have no real prospect of succeeding - whether there is no need for a trial of these claims - whether summary judgment should be given with respect to these claims pursuant to r 293 of the Uniform Civil Procedure Rules 1999
[3]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE - where the defendant seeks to have the whole amended statement of claim struck out - where, alternatively, the defendant seeks to have certain identified paragraphs of the amended statement of claim struck out - whether the amended statement of claim, or parts of the amended statement of claim, disclose no reasonable cause of action - whether all or part of the amended statement of claim should be struck out pursuant to r 171 Uniform Civil Procedure Rules 1999
M Johnston QC and G Yates for the applicant/defendant
[14]
D Savage QC and M Steele for the respondent/plaintiffs
[15]
Colin Biggers & Paisley for the applicant/defendant
[16]
CowenSchwarzMarschke for the respondents/plaintiffs
[17]
[1] The plaintiffs' case arises out of discussions held between agents of some of the plaintiffs and the defendant (the Council) which commenced in 2005 and continued for some time. They concerned a proposed development of land in Mackay known as "The Waters of Ooralea" (the Project). The plaintiffs (six of which the Council says have no standing) are said to be involved because, among other things, they are:
[18]
(a) agents for the owners of the land to be used for the Project; or
(b) own land as trustees which is to be used in the Project; or
(c) are trustees of other trusts associated with the Project.
[19]
[2] The plaintiffs' case, put very broadly, is that the Council made a number of representations which were acted upon and a number of agreements were entered into with the Council. As a result of acting upon those representations and agreements by the Council, the plaintiffs claim to have suffered losses in the order of $42,000,000. They rely upon causes of action based on, among other things, unconscionability, negligence, breach of statutory obligations, misleading and deceptive conduct, and breach of contract.
[3] The Council applies for the following orders:
[20]
(a) summary judgment against the 3rd to 8th plaintiffs; or
(b) summary judgment with respect to the allegations made in paragraphs 140 and 144 of the Amended Statement of Claim (ASOC); or
(c) striking out all of the ASOC; or
(d) striking out identified paragraphs of the ASOC.
[21]
[4] Each of the plaintiffs cross-applies for orders:
[22]
(a) striking out identified paragraphs of the defence; or
(b) that the Council have leave to re-plead those identified paragraphs of the defence.
[23]
[5] A defendant may apply for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules1999. The test is well known. Summary judgment on all or a part of a plaintiff's claim may be given if the Court is satisfied that:
[24]
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and
(b) there is no need for a trial of the claim or the part of the claim.
[25]
[6] A part or all of a pleading may be struck out under r 171:
[26]
"(1) This rule applies if a pleading or part of a pleading -
[27]
(a) discloses no reasonable cause of action or defence; or
[28]
(b) has a tendency to prejudice or delay the fair trial of the proceeding; or
(c) is unnecessary or scandalous; or
(d) is frivolous or vexatious; or
(e) is otherwise an abuse of the process of the court.
[29]
(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
[30]
[7] The relevant principles which aid in determining whether a pleading is adequate were summarised in Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [1]:
[31]
"[27] ... Considerations relevant in deciding if a pleading is deficient include whether it fails to fulfil the function of pleadings, which are "to state with sufficient clarity the case that must be met" and thus define the issues for decision thereby ensuring procedural fairness (Banque Commerciale SA (In liq) v Akhil Holdings Ltd(1990) 92 ALR 53 at 58-59). A pleading will lack sufficient clarity if it is "ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him" (Thiess Pty Ltd v FFE Minerals Australia Pty Ltd[2007] QSC 209 at [37], applying Meckiff v Simpson[1968] VicRp 7; [1968] VR 62 at 70). Likewise, a pleading will be deficient if the pleader's case is not "advanced in a comprehensible, concise form appropriate for consideration both by the court, and for the purpose of the preparation of a response" (QIC Logan Hyperdome Pty Ltd & Anor v Briridge Pty Ltd & Anor[2011] QSC 43 at [10], see r 149 UCPR).
[32]
[28] A pleading must contain all the material facts relied upon (r 149(b) UCPR) and a deficiency in pleading material facts needed to establish a cause of action may not be remedied through the use of particulars, which are intended to meet a further and quite separate requirement (r 157 UCPR, Bruce v Odhams Press Ltd[1936] 1 KB 697 at 712; Dawnlite Pty Ltd v Riverwalk Realty Pty Ltd[2010] QSC 249 at [44]). On the other hand, a pleading may be liable to be struck out where it includes irrelevant allegations which, by their nature, will affect the expeditious determination of the proceeding (Colston v McMullen[2011] QSC 60)."
[33]
[8] Further, any pleading which is difficult to follow or objectively ambiguous, or which creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to be struck out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding.[2]
[34]
Summary judgment against the 3rd to 8th plaintiffs
[35]
[9] The representations and agreements upon which the plaintiffs rely are all alleged to have been made before the earliest date on which any of the 3rd to 8th plaintiffs came into existence. The Council argues that that is sufficient to demonstrate that none of those plaintiffs have a real prospect of success on any of the claims and that there is no need for a trial of any claim made by them.
[10] The mere fact that a plaintiff comes into existence after a relevant representation is made is not necessarily determinative, see Palmer Street Developments Pty Limited & Anor v J & E Vanjak Pty Ltd & Anor.[3] But the circumstances in which such an entity can recover need to be carefully pleaded - and that has not occurred in this case.
[11] It is necessary to set out in some detail the references in the ASOC to the 3rd to 8th plaintiffs.
[12] With respect to each of the 3rd to 8th plaintiffs, the pleading is similar. For each it is alleged that:
[36]
(a) it was registered on a particular date (for the 3rd plaintiff it was 21 May 2018, for the 4th, 5th, 6th and 7th plaintiffs it was 15 February 2018 and for the 8th plaintiff it was 26 November 2019);
(b) it was the trustee for an identified trust;
(c) in its capacity as trustee, it acted as the agent for the owners of the Project, or as the owner of land which formed part of the Project, or, in the case of the 8th plaintiff, replaced another trustee (Ajana Park Pty Ltd); and
(d) it is suing in its capacity as trustee.
[37]
[13] It is alleged that the land which comprised the Project was originally acquired by the 9th and 10th plaintiffs and Ajana Park Pty Ltd. That land has been the subject of subdivision and other changes and, because of sales made over time, the land which is still owned is owned by the 4th to 7th plaintiffs as trustees.
[14] It is then pleaded that Rhonda Cowley (who is the wife of John Cowley) is the "sole director and controlling mind" of the 3rd to 7th plaintiffs.
[15] John Cowley is alleged to be the "sole director and controlling mind" of Ajana Park Pty Ltd and the 1st, 2nd, 8th, 9th and 10th plaintiffs.
[16] It is then pleaded:
[38]
"15A. In his dealings with the Council pleaded below, Mr Cowley acted:
[39]
(a) in his capacity as director and controlling mind of Ooralea, Farnscastle, Ajana Developments, Hewbridge, Bakers Creek and Ajana Park[4] (to the extent each of those companies was in existence at the time of the relevant dealing);
(b) in his capacity as agent and representative of Mrs Cowley in her capacity as director and controlling mind of Cougar, Bruce Highway, Stockroute, Temples Lane and Cowleys Road[5] (to the extent each of those companies was in existence at the time of the relevant dealing)."
[40]
[17] The pleading then goes on to set out the various representations and agreements alleged to have been made by the Council.
[18] It is then alleged that the 1st, 2nd, 9th and 10th plaintiffs expended significant money on the Project and that they did so in reliance upon the conduct of the Council set out in some 57 identified paragraphs in the ASOC. Further, or alternatively, it is alleged that those plaintiffs did so in reliance on the existence of an alleged agreement in 2011 and certain identified representations.
[19] The ASOC then goes on to allege that the Council ought to have known of those matters.
[20] The plaintiffs plead that the Council was aware that the plaintiffs were expending funds in reliance upon the representations. But the manner of its pleading does not allow any understanding of how it is said that any of the 3rd to 8th plaintiffs might have expended money. It is also pleaded that it was reasonably foreseeable that the 1st, 2nd, 9th and 10th plaintiffs would rely upon the representations and promises made, that they would suffer loss if the Council failed to exercise reasonable care in providing information about its attitude to the Project, that it was reasonable for the 1st, 2nd, 9th and 10th plaintiffs to rely upon the information provided by the Council, and that in those premises, the Council owed a duty of care to the 1st, 2nd, 9th and 10th plaintiffs.
[21] It is not pleaded that the Council owed any duty to the 3rd, 4th, 5th, 6th, 7th and 8th plaintiffs. It is not pleaded that any action was taken, or not taken, by those plaintiffs because of anything said or done by the Council. It is not pleaded that there was any agreement of any kind between those plaintiffs and the Council.
[22] There is an alternative claim made with respect to three identified representations.[6] It pleads that those representations were made knowing and intending that they would encourage the 1st, 2nd, 9th and 10th plaintiffs to continue to expend moneys in developing the Project. It is then pleaded that "the Plaintiffs" rely on s 4(1)(a) of the Australian Consumer Law with respect to one representation and it is then alleged that, by making the three identified representations, the Council had engaged in misleading and deceptive conduct within the meaning of the and in contravention of of that Law.
[41]
Summary judgment on [140] and [144] of the ASOC
[42]
[29] Paragraphs 140 and 144 fall within the part of the ASOC headed "Further and Alternative Claims and Relief".
[30] That section of the ASOC commences with paragraphs 138A to 139A. In those paragraphs it is alleged that the Council:
[43]
(a) acting with reasonable care and skill, would not have made certain identified representations;
(b) in breach of its duty to the 1st, 2nd, 9th and 10th plaintiffs, failed to take reasonable care in the statements which it made; and
(c) is liable to those plaintiffs for negligent misstatement.
[44]
"But for the breach of duty pleaded, Ooralea, Farnscastle, Hewbridge and Bakers Creek[8] would not have expended the monies on infrastructure as detailed in paragraph 124 above, but would have instead expended those funds on those another [sic] project or projects and obtain a return of approximately 35-40%."
[45]
"Further, or alternatively, the Defendant's conduct in resiling from the 2011 Agreement and further and alternatively the Fifth Support Representation, the IA Representations and the 2016 Formal Agreement Representation involved the Defendant breaching its statutory obligation to act in good faith and the Plaintiffs rely on paragraph 139A above.
[33] Paragraph 141 pleads a claim under the Australian Consumer Law.
[34] Paragraph 141A pleads in terms similar to paragraph 139A.
[35] Paragraph 143 pleads a claim by the 1st, 2nd, 9th and 10th plaintiffs for specific performance of the 2011 Agreement. Alternatively they seek damages for breach of that agreement.
[36] Paragraph 144 pleads:
[48]
"Further, or alternatively, the Defendant has, by its conduct in paragraphs 113, 115 to 117, 119 to 123, 126 to 127A and 129 above, used power given to it under statute in an unfair, unreasonable and inequitable manner contrary to the true intention of the statutory regime which requires fair, reasonable and equitable cost sharing arrangements between developers and Councils in relation to infrastructure and, accordingly, the plaintiffs are entitled to fair, reasonable and equitable cost sharing arrangements or are liable to [be] compensated for loss and damage arising from the exercise of these powers by the Defendant as aforesaid.
[37] The pleading in paragraph 140 is, at best, inelegant. The assertion that the Council's conduct in resiling from the 2011 Agreement et cetera "involved" the Council breaching its statutory obligation leaves open many possible alternatives for the manner in which the alleged breach was manifested. It may be that, by referring to the preceding paragraph, the plaintiffs intend to rely upon the alleged breach to found a Hungerfords v Walker[9] type of claim for damages for the lost opportunity to use the money already expended. But that is not as clear as it should be. And it is inconsistent with the assertion in the plaintiffs' written submissions that:
[51]
"the reference in paragraphs 140 and 144 to a "statutory obligation to act in good faith" and "unfair, unreasonable and inequitable manner" respectively, are allegations of material facts which are said to support the relief sought in the prayer for relief. They are not, themselves, claims for any particular relief"
[52]
[38] It is not immediately obvious which parts of the prayer for relief relate to paragraph 140. There are specific references to paragraphs 136 and 137. The "general" claim for damages is for money already expended - $16,974,231 - together with "expectation damages" of $13,177,000. The "expectation damages" are pleaded, in paragraph 125, as being an estimate of the amount that the plaintiffs would, in the future, spend in relation to trunk infrastructure for the Project.
[39] The pleading in paragraph 140 is unsatisfactory. It pleads a breach of a statutory obligation. It appears to plead that, as a consequence of that breach, some of the plaintiffs were denied the opportunity of expending funds on other projects. There is, though, no claim made with respect to that alleged breach.
[40] Paragraph 144 is drawn in a discursive rather than a precise manner. Although the plaintiffs in their written submissions say that the allegation supports the relief sought in the prayer for relief, there is no claim for "fair, reasonable and equitable cost sharing arrangements" or that the plaintiffs should be compensated for loss and damage arising from the exercise of "these powers" by the Council. The absence of carefully drawn particulars is exemplified by the reference to the "true intention of the statutory regime" which is more a statement of aspiration than of precision.
[41] Neither paragraph 140 nor 144 adequately plead a claim or facts giving rise to a claim.
[53]
[42] The Council seeks to have the whole of the Prayer for Relief struck out as well as a number of identified paragraphs relating to:
[54]
(a) the contractual claim;
(b) the alleged representations;
(c) the estoppel claim;
(d) the misleading or deceptive conduct claim;
(e) the unconscionability/unjust enrichment claim in [133];
(f) the "primary relief" in [136] and [137]; and
(g) the negligent misstatement.
[55]
[43] The Council contends that paragraphs 68 to 69D of the ASOC and all references to the 2011 Agreement should be struck out.
[44] It is, unfortunately, necessary to set out in full the paragraphs complained of in order that the complaints may be understood. Those paragraphs are:
[56]
"57. During the course of the above process, in or around 20 May 2011, the Defendant by Mr Cardiff stated orally to Mr Yeats words to the effect that the Council agreed to the following terms of an Infrastructure Agreement:
[57]
a) Stormwater - no contribution as all managed internally with lawful points of discharge at Bakers Creek for southern catchments and Bruce Highway boundary for the northern catchment, to be constructed at the Plaintiff's cost.
b) Parks/Open Space - no contributions payable on the basis of an agreed strategy (subsequently agreed at a May 2011 meeting) with embellishments undertaken progressively with Staged development, including along and adjacent to the creek bank of Bakers Creek at the Plaintiffs' cost generally in accordance with the "Tract" (a landscape consulting firm) preliminary landscape design of December 2007.
c) Water - contributions would be payable at a "discounted" rate in recognition of Trunk Infrastructure to be constructed by the Plaintiffs, and to account for those trunk water assets that will not be relied upon by the development.
d) Sewer - contributions would be payable at a "discounted" rate in recognition of Trunk Infrastructure to be constructed, and to account for those trunk sewerage assets that will not be relied upon by the development. In respect to any "upgrade" required over and above infrastructure required for the development (e.g. existing Temples Lane rising main for the non-related upstream catchment) there would be credits applied or payment received in respect to those works.
e) Roads - no discount to apply in respect to any "upgrade" over and above that required for the development (for example the proposed, at that time, sub-arterial Inner Ring road, over and above the road hierarchy required by the development) there would be credits applied or payment received in respect to those works, if carried out or contributed to by the Plaintiffs.
[58]
68. On 20 May 2011, a meeting was held between Mr Cardiff, Mr Yeats, Mr Cowley and Mr Peter Bratt (Council engineer) to discuss the infrastructure agreement for the Project.
[59]
69. At that meeting, Mr Cardiff and Mr Bratt for the Defendant said words to the effect that in addition to the Fundamental Terms the Defendant agreed to the following terms of an Infrastructure Agreement:
[60]
a) The Defendant would ensure the provision of water supply for the Project from the new 450mm diameter trunk main that the Defendant was about to construct at its expense;
b) The Defendant would accept all sewage from the Project;
c) In relation to storm water, as the development would be self-sufficient and deal with its own flows, no storm water charges would be levied;
d) In relation to parks and open space, the open space precinct adjacent to Bakers Creek would be dedicated to the Council and therefore no charges would be levied by the Defendant on any of the Plaintiffs;
e) In relation to water, the charges would be discounted by 50% to account for those trunk water assets that would not be relied upon by the development;
f) Charges for sewerage would be discounted by 50% to account for those trunk sewerage assets that would not be relied upon by the development;
g) In relation to roads, no discounts would be offered and full charges would apply; and
h) where any charges were or had already been paid over and above the agreed amount, those additional amounts would be credited towards future infrastructure charges.
[61]
Email from Brandon Yeats to Mr Poppleston and Benjamin Collings 23 May 2011 (12:57pm).
[62]
69A. By its conduct pleaded in paragraph 69 above, the Defendant:
[63]
a) offered to enter into a legally binding agreement with Ooralea, Farnscastle, Hewbridge and Bakers Creek on the Fundamental Terms and the Further Terms;
b) further and alternatively, promised that it would enter into a legally binding agreement with Ooralea, Farnscastle, Hewbridge and Bakers Creek on the Fundamental Terms and the Further Terms;
c) further and alternatively, represented that:
it would enter into a formal written Infrastructure Agreement incorporating the Fundamental Terms (the "Further Terms Representation");
if Ooralea, Farnscastle, Hewbridge and Bakers Creek continued with the Project infrastructure charges of $9,265.00 per lot (based on the applicable categories of infrastructure charges levied at that time) would apply to the whole of the Project as:
No stormwater charges would be levied;
No charges for parks and open space would be levied;
The charges for water would be discounted by 50% to account for those trunk water assets that would not be relied upon by the development;
The charges for sewerage would be discounted by 50% to account for those trunk sewerage assets that would not be relied upon by the development;
There would be no discount in relation to road infrastructure;
any charges paid over and above the agreed amount would be credited towards future infrastructure charges (the "Charges Discount Representation").
[64]
69B. At the time of the meeting, the Defendant knew (by Mr Cardiff) as was the fact that Ooralea, Farnscastle, Hewbridge and Bakers Creek would incur substantial further expenses in developing the Project.
[65]
The knowledge is to be inferred from the fact that Mr Cardiff was an experienced Council officer and it is a matter of common knowledge amongst those involved in making and assessing development applications and town planning generally that the carrying out of a development such as the Project involves substantial work and substantial expenditure.
[66]
69C. At the meeting on 20 May 2011, Mr Yeats and Mr Cowley on behalf of Ooralea, Farnscastle, Hewbridge and Bakers Creek said words to the effect that they accepted the Defendant's offer in paragraph 69Aa) above.
[67]
69D. In the premises of paragraphs 69A to 69C, and in consideration for Ooralea, Farnscastle, Hewbridge and Bakers Creek progressing the development of the Project for the benefit of current and future residents living in the local government area of the Defendant, Ooralea, Farnscastle, Hewbridge and Bakers Creek and the Defendant entered into a legally binding agreement on the Fundamental Terms and the Further Terms (the "2011 Agreement")."
[68]
[45] The Council's complaints may be summarised in this way:
[69]
(a) the "Fundamental Terms" and the "Further Terms" are vague and ambiguous and cannot sustain the contractual claim as made;
(b) there are inconsistencies in the ASOC as to whether it is alleged that the parties had in fact entered the "2011 Agreement" or whether the Council merely represented that "it would enter" into an agreement at some time in the future; and
(c) the allegation that the Council agreed to an Infrastructure Agreement with the Further Terms is particularised by reference to an email which is an internal document of representatives of some of the plaintiffs and is not a communication with the Council.
[70]
[46] As to the asserted vagueness - the Council argues that the "Fundamental Terms" are said to be for an "Infrastructure Agreement" but there is no allegation as to what project, development etc the "Fundamental Terms" attach to or concern. It is correct to observe that paragraph 57 refers to the "following terms of an Infrastructure Agreement" but does not identify the project to which the agreement applies. The ASOC is replete with defined terms but there is no definition of "Infrastructure Agreement". There is a defined term of "Initial Infrastructure Agreement" but that does not seem to be relevant to paragraph 69. This is a matter which could be resolved by the provision of further particulars.
[47] It is also argued that the terms pleaded in paragraph 69 are "so vague as to be meaningless". That is a matter which is open to argument, but the pleading in paragraph 69 recites what are alleged to be the words (or words to the effect) used by agents of the Council at a meeting with agents of some of the plaintiffs. It was not suggested that the Council was unable to plead in response to the assertion that "words to the effect" were used in the manner set out in that paragraph. If the words or terms as set out in paragraph 69 are vague and meaningless then that is a matter for pleading in response with respect to the formation of any agreement.
[48] The Council argues that there are inconsistencies about whether it is alleged that the parties had in fact entered into the 2011 Agreement or whether the Council merely represented that it would enter into an agreement. In paragraph 69A(a), it is alleged that the Council, by its conduct as alleged in paragraph 69, offered to enter into a legally binding agreement with some of the plaintiffs. It is then pleaded, in the alternative, that the Council promised to enter into such an agreement. It is then pleaded, in the alternative, that the Council represented that it would enter into a formal written Infrastructure Agreement on the basis of certain conditions being met.
[49] In paragraph 69C it is pleaded that Mr Cowley and another person on behalf of the 1st, 2nd, 9th and 10th plaintiffs said that they accepted the Council's offer pleaded in paragraph 69A(a). It is then pleaded that those plaintiffs and the Council entered into a legally binding agreement on the Fundamental Terms and the Further Terms, which is defined as the 2011 Agreement. That, with respect, is a clear statement of an offer being made, of that offer being accepted and the formation of a contract as a result. The pleading of alternative characterisations with no further pleading about their effect is clumsy and should be remedied, but it alone does not call for a striking out of this particular group of paragraphs.
[71]
[52] In paragraph 143 it is alleged that the 1st, 2nd, 9th and 10th plaintiffs performed or part performed the agreements, and are entitled to specific performance of the 2011 Agreement. Within that paragraph it is pleaded, in the alternative, that those plaintiffs are entitled to damages for breach of the 2011 Agreement. It is pleaded that by the conduct referred to in paragraphs 113, 115 to 117, 119 to 123, 126 to 127A and 129 the Council breached the Fundamental Terms or, further or alternatively, the Further Terms. The particulars of those alleged breaches are not particulars sufficient to identify the Fundamental Term or Further Term which was breached. Rather, they are a summary of what has been previously alleged in those identified paragraphs.
[53] The Council correctly says that while the "conduct" is identified, there is no identification of the terms which are said to have been breached by that conduct. Some of the matters pleaded cannot be rationally connected to any of the Fundamental or Further Terms. For example, paragraph 120 simply pleads:
[72]
"On 14 May 2018 Mr Carlyon emailed Mr Poppleston referring to 'part of the proposed negotiations for an Infrastructure Agreement based on our best current information."
[73]
[54] There is no pleading as to the proper categorisation or effect of that allegation. It simply hangs there.
[55] Paragraph 143(b)(i) is a vague set of assertions which do not provide the necessary connection to allow a reader to understand how it is said the Fundamental Terms and Further Terms have been breached.
[56] The plaintiffs plead a further alternative in paragraph 143(c) where it is said that the conduct referred to in the paragraphs enumerated in the particulars in paragraph 143(b)(i) amounted to a repudiation by the Council of the 2011 Agreement and that the plaintiffs are entitled to damages for that repudiation. A repudiation should be pleaded with specificity. The matters referred to in that set of "particulars" are not connected with sufficient particularity to the allegation of repudiation. It seems to be little more than the description of a collection of actions by the Council which are then said to amount to a breach or repudiation, but without any pleading to explain how those "particulars" support that allegation.
[57] The Council, in its submissions, goes on to criticise further parts of the pleading on this point but, given the view I have formed of the pleading in paragraph 143, I need not examine those in detail. It is sufficient to say that the pleading is embarrassing and needs to be remedied.
[74]
[58] This category of complaint revolves around an unusual feature of the ASOC. A large section of the early part of the pleading is a narrative of events alleged to have occurred. Provided that the pleading is relevant then that is not in itself objectionable, as it can assist the reader to understand later parts of the pleading. The unusual aspect of this part of the pleading is the frequent use of a brief term to identify a particular event but then that term not being used again in the pleading. For example, paragraph 20A reads:
[75]
"At this meeting the Defendant, by Ms Boyd, advised Mr Cowley to the effect that the Defendant 'supported the development of the Project' (the "First Support Representation")"
[76]
[59] In the ordinary course, a reader might expect that that particular event was of some importance because of the abbreviated description given to it. But, in this pleading, the First Support Representation is confined to a set of circumstances which are then not relied upon for any particular form of relief. It is pleaded that the 10th plaintiff was incorporated by Mr Cowley in reliance upon that representation and that the 2nd plaintiff prepared a development application - which is, in turn, defined as the "2008 Application".
[60] In the prayer for relief, a declaration is sought that the Council is estopped from recovering infrastructure charges otherwise than in accordance with the representations made to the plaintiffs. But there is no pleaded connection between the First Support Representation and infrastructure charges.
[61] The plaintiffs' response to this complaint is that the matters pleaded explain in some detail the steps taken by the parties leading up to the 2011 Agreement. That seems to be correct. The plaintiffs then argue that the fact that the material facts bear a particular styling in the ASOC does not invest them with any different character. Were it not for the relief claimed with respect to all the representations then that would be correct. But there is difficulty with the style of the claim for relief. And that difficulty arises through the liberal and unnecessary sprinkling of abbreviations throughout the pleading. Another example of a pleaded "representation" is the "Report Acceptance Representation". It is not pleaded that any plaintiff relied on this representation and no relief is claimed in reliance upon it.
[62] There are some 19 separate representations pleaded to have occurred over a period of about 11 years. The Council can only identify three of them as being relied upon for any form of relief. Some of the representations, for example the "Second Support Representation", are not alleged to have been relied upon by any plaintiff. Similarly, no specific reliance is pleaded with respect to the "Fourth Support Representation", the "Authority Representation", and the "Structure Plan Representation".
[63] The structure of the ASOC and the terms which have been defined with such largesse do not allow a reader to understand what it is that the plaintiffs say are the representations which they have relied upon and upon which they say their causes of action arise. While some of the representations can be seen to be connected with the relief sought, there is too much uncertainty to allow the pleading to stand as it is.
[77]
(a) In the premises of paragraphs 130 to 132B above, it would be unconscionable for the Court in the exercise of equitable jurisdiction to allow the Defendant to depart from the IA Representations and the 2016 Formal Agreement Representation without compensating the Plaintiffs;
[78]
(b) (further and alternatively) The Defendant has been unjustly enriched in that it has received the benefit of infrastructure as pleaded in paragraphs 111A and 127A above, that has been built at others' expense, by its conduct in paragraphs 126 and 127 above;
[79]
(c) (further and alternatively) The Plaintiffs are entitled to recover the sums expended, as pleaded in paragraph 124 above, upon a quantum meruit or quantum valebat;
[80]
(d) (further and alternatively) The Defendant stood by and allowed the Plaintiffs to act upon a mistaken belief (or a misrepresentation by the Defendant of its true intentions) that the Project would proceed in the manner agreed or represented (and thereby the Plaintiffs incurred expenditure in respect of which the Defendant it is obliged to compensate the Plaintiffs)."
[81]
[66] This is a most curious paragraph. It alleges that it would be "unconscionable for the Court" to allow the Council to depart from certain representations without compensating the plaintiffs. The cause of action which could give rise to a finding that a Court might act unconscionably is not identified by the plaintiffs. If it is intended to relate to the conduct of the Council, then no allegation has been made to the effect that the Council has taken unconscientious advantage of a special disadvantage of any of the plaintiffs.[11]
[67] Whatever is intended by the pleading that the Council has been unjustly enriched is not supported by other pleadings and no relief is sought with respect to it. In any event, paragraph 111A does not include any reference to infrastructure and paragraph 127A does not plead any particular infrastructure.
[68] The claim that the plaintiffs are entitled to recover the sums they have expended upon a quantum meruit or a quantum valebat simply exemplifies a misunderstanding of those actions and what must be pleaded in order to support either of those claims.
[69] Finally, there is the pleading that the Council stood by and allowed the plaintiffs to act upon a mistaken belief. This is an allegation with no effect. It does not appear to support any other claim and fortifies the conclusion that paragraph 133 is little more than a grab bag of irrelevant assertions.
[82]
[70] For the reasons which I have given, the Council has been successful on most of its arguments. I do not accept, though, that this action is yet at the stage where leave to replead should not be granted. But, as the shortcomings in the ASOC are so wide and deep it is more appropriate to strike out the entire pleading than to strike out individual parts. As I am granting leave to replead, there is no need to consider the Prayer for Relief as it will inevitably require amendment in line with the repleaded statement of claim.
[71] The plaintiffs had brought a cross-application to strike out the Council's defence. In light of this decision, there is no need to consider that application. It is, though, worth noting that the defence was impermissibly argumentative, replete with irrelevant assertions as to the nature of the ASOC and more in the nature of a submission than a pleading. It will, when it is amended following the repleaded ASOC, need to be thoroughly renovated.
[83]
[72] The ASOC is struck out. The plaintiffs have leave to replead.
[23] It has long been recognised that an entitlement to recover loss or damage for contravention of s 18 of the Australian Consumer Law is not confined to a person who relied on the representation which constituted a contravention of that provision.[7] But, in this case, it is not pleaded that the 3rd to 8th plaintiffs are entitled to recover pursuant to that Act. Rather, the pleading is confined to the 1st, 2nd, 9th and 10th plaintiffs. For the 3rd to 8th plaintiffs to be able to make a claim, there would need to be a pleading which described the necessary causal link between the alleged contravention and the alleged loss. There is none.
[24] The claim for relief is not rationally connected to anything which is said about any of the 3rd, 4th, 5th, 6th, 7th and 8th plaintiffs. Throughout the pleading, the term "Plaintiffs" is used without any attempt to distinguish the actions taken by any particular plaintiff in response to any particular action by the Council. The mere assertion that Mr Cowley was the controlling mind of some of the plaintiffs and the agent of the controlling mind of other plaintiffs does not establish the necessary link between the conduct of the Council and any loss or damage suffered by the 3rd to 8th plaintiffs. I note that there is no distinction made between any of the plaintiffs as to amounts lost. Rather, there is a global sum said to represent the damages of all the plaintiffs.
[25] There is a further point which is against the argument advanced by the plaintiffs. It is pleaded that the Council had withdrawn support for the development of the Project and that the relevant actions of the Council complained of by the plaintiffs had all taken place before the 3rd to 8th plaintiffs came into existence. In other words, the causes of action alleged by the plaintiffs had crystallised before the 3rd to 8th plaintiffs were formed.
[26] The 3rd to 8th plaintiffs argue that they are entitled to bring this action because "if a promise was made to the trustees at particular times, the benefit of that promise belongs to the beneficiaries of the trust, and becomes part of the trust property." But that is not how the matter is pleaded. The trusts for which the 3rd to 7th plaintiffs were all created were no earlier than 27 February 2018. Thus, for those plaintiffs, there was no earlier trust or trustee to whom a promise could be made. The 8th plaintiff is alleged to have replaced the previous trustee of the Ajana Park Trust, but there is no pleading consistent with the argument advanced to support the contention made.
[27] Further, if the 3rd to 8th plaintiffs are correct in the argument they advance on this point, then it would be necessary to plead that the benefit of the promise belongs to the beneficiaries of a particular trust and to identify those beneficiaries. It is not sufficient to simply plead that Mr Cowley or Mrs Cowley control those plaintiffs.
[28] The relationship between the various individuals, the companies which existed at relevant times and the representations alleged to have been made is complex. I am not satisfied, at this stage, that there is no need for a trial, but I am satisfied that the pleading, so far as the 3rd to 8th plaintiffs are concerned, is inadequate. I will deal with the appropriate orders at the end of these reasons.
[50] The final complaint in this section concerns the particulars given to paragraph 69. That paragraph sets out what is alleged to have been said by the Council's agents. The particulars given concern an email between different people, all of whom are representatives of some of the plaintiffs. It sets out the recollection of Mr Yeats of the meeting of 20 May 2011. The Council argues that its contents are inconsistent with the pleadings and objects to what it says is "a fundamental internal inconsistency on the face of the pleading and the particulars that cannot be reconciled."
[51] Particulars of a pleading may be struck out (under r 162 UCPR) if they have a tendency to prejudice or delay the fair trial of the proceeding, or they are unnecessary or scandalous, or frivolous or vexatious, or otherwise an abuse of the process of the Court. The alleged "fundamental internal inconsistency" might fall under the heading of "prejudice or delay the fair trial of the proceeding", but the particular also fulfils the requirement in r 157 to provide particulars necessary to prevent surprise. If it is the plaintiff's case that the email supports the allegations in paragraph 69, then it must plead that in accordance with the rules. The Council does not have to plead, indeed it ought not plead, to particulars in the statement of claim - see Pinson v Lloyds and National Provincial Foreign Bank Ltd.[10] The Council has been alerted to the view apparently held by the plaintiffs that the email provides particulars. The Council should not plead to it, and I see no reason why these particulars - even if ill-conceived - will prejudice the fair trial of the proceeding.
[64] The view I have reached with respect to the manner in which the representations have been pleaded means that I accept the thrust of the Council's case so far as it relates to reliance, the claim for estoppel, and the claim for misleading or deceptive conduct.