Plaintiff v Defendant

Supreme Court of Victoria|2010-02-18|Before: ROBSON J

PRACTICE and PROCEDURE - appeal from decision of Associate Justice - hearing de novo - application to dismiss proceedings as hopeless under r 23.01 and r 23.03 of the Supreme Court (General Civil Procedure) Rules 2005 - application to strike out the statement of claim as disclosing no cause of action under r 23.02 - application to add a plaintiff - relevant principles to be applied - rr 23.01, 23.02 and 23.03 of the Supreme Court (General Civil Procedure) Rules 2005

428 Little Bourke Street Pty Ltd v Lonsdale Street Café Pty Ltd [2009] VSC 133

Avzur Hotels Pty Ltd v Ivanhoe Entertainment Pty Ltd [2009] FCA 701; (2009) 257 ALR 498

Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256

Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205

Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346

Commercial Banking Co of Sydney Ltd v RH Brown & Co [1972] HCA 24; (1972) 126 CLR 337

Davis v Pearce Parking Station Pty Ltd [1954] HCA 44; (1954) 91 CLR 642

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] 2 Lloyd's Rep 61

Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd (1899) 1 QB 86

Jennings v Zilahi-Kiss (1972) 2 SASR 493

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27

Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49

Little v Law Institute of Victoria (No 3) [1990] VicRp 25; [1990] VR 257

Marzetti v Williams [1830] EngR 839; (1830) 1 B & Ad 415

The Medina [1900] AC 113

Mutual Life and Citizens Assurance Co Ltd v Evatt [1970] UKPCHCA 2; (1970) 122 CLR 628

Rise Home Loans Pty Ltd v Dickinson [2009] VSC 555

San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 [1986] HCA 68; (1986) 162 CLR 340

Suburban Homes Pty Ltd v Topper (1929) 35 ALR 294

Wilson v Darling Island Stevedoring & Lighthouse Co Ltd [1956] HCA 8; (1956) 95 CLR 43

1 Rise Home Loans Pty Ltd ("Rise Home") has commenced proceedings against the defendants, Mr and Mrs Dickinson, claiming damages in tort and for breach of contract arising out of the sale of the property at 5 Canberra Grove, Beaumaris by Mr and Mrs Dickinson to Mr Skliar. Subsequent to the sale, Mr Skliar nominated Rise Home as the purchaser. In essence, the plaintiff alleges that the defendants represented and agreed they had clear title to the property, whereas in fact a neighbour had the right to possess part of the property under an adverse possession claim.

2 The defendants, inter alia, sought summary judgment against Rise Home on the ground that its claims were hopeless. The plaintiff, for its part, sought to join Mr Skliar as a plaintiff. Mukhtar AsJ refused the plaintiff leave to join Mr Skliar as a plaintiff and granted summary judgment to the defendants. The plaintiff appeals. The appeal is by way of a hearing de novo.

3 For the reasons given below, I allow the appeal in part.

4 On 19 August 2006, Mr and Mrs Dickinson auctioned their property at 5 Canberra Grove, Beaumaris. Mr Skliar was the successful bidder and entered into a contract of sale with Mr and Mrs Dickinson for $1,382,500. A deposit of $69,125 was paid for or on behalf of Mr Skliar. Under the contract the purchaser was described as "Evgeni Skliar and or nominee 19 Lord Street McKinnon". General condition 5 provided that:

If the contract says the property is sold to a named purchaser "and/or nominee" (or similar words), the named purchaser may, a least 14 days before settlement date, nominate a substitute or additional purchaser, but the named purchaser remains personally liable for the due performance of all the purchaser's obligations under this contract.

5 The dispute in this case arises out of the fact that the rear fence line did not align with the rear title boundary. About 30cm of the land within the boundary was occupied by the rear neighbour, Alma Chambers. Clause 15 of the special conditions of the contract provided that requisitions on title and answers thereto were attached to the contract. Requisition 3 asked:

Is the vendor aware of any discrepancy between occupation and title? If so, particulars must be supplied.

6 To which the vendors answered, "Not to the Vendors' knowledge".

7 On 1 September 2006, Mr Skliar obtained a survey which showed that the rear fence was not aligned with the property title boundary.

8 On 5 December 2006, the solicitors for Mr Skliar wrote to the solicitors for the vendors confirming that they acted for "the Purchaser , Evgeni Skliar" and advising that "the Purchaser has nominated a subsequent Purchaser being Rise Home Loans Pty Ltd". The solicitors enclosed a transfer identifying Rise Home as the transferee and stating the consideration as $1,382,500.

9 On 1 February 2007, the transfer was duly registered.

10 In 2008, proceedings were issued in the County Court by Rise Home against Alma Chambers and Caroline Kinnear which raised the issue of whether the land contained in the relevant certificate of title to 5 Canberra Grove occupied by Alma Chambers had been acquired by her through adverse possession. The statement of claim in this proceeding alleges that Mr Dickinson swore an affidavit supporting Chambers' claim that the disputed area had been fenced off as part of her land. With special leave, the affidavit of Mr Dickinson was tendered in evidence before me. It had been referred to in the hearing before Mukhtar AsJ.

11 In substance, Mr Dickinson swore that he and his wife had purchased the property in or about June 2000 and subsequently lived at the property. He said the old fence in existence at the time of their purchase was replaced approximately three years ago, in 2005, by agreement with Alma Chambers. He said the new fence was constructed on the same line and position of the previous old fence. He said that he knew from the time he purchased the property that the old fence (and the subsequent new fence) were not on the title boundary. He said he had, when purchasing, a check survey done, which disclosed the fact that the fenced property at the rear was not in conformity with the title boundary, and that he had lost some land, but he accepted this as the fact without objection to Mrs Chambers.

12 The plaintiff has tendered a proposed amended statement of claim incorporating the claims that Mr Skliar seeks to make. For convenience, I will deal with the proposed amended statement of claim. Both Rise Home and Mr Skliar seek to make claims against Mr and Mrs Dickinson in tort and contract.

13 The relevant facts have been comprehensively set out in the reasons of Mukhtar AsJ.[1] Accordingly, I will only give a bare outline of the relevant facts. The contract of sale of the land is pleaded between Mr Skliar and the vendors. Further and in the alternative, it is alleged that on or about 5 December 2006, Rise Home became a party to the contract of sale as purchaser of the land by agreement with the vendors. This is described as the "novation agreement". Under the heading of the claims in tort, it is alleged that prior to entering into the contract of sale the vendors represented to the plaintiffs:

3.1 that there was no discrepancy between the title boundaries of the land and the boundaries of the property as occupied by them;

3.2 that no other person could maintain any claim to any part of the land; and

3.3 that they could convey to the plaintiffs the whole of the land free from any claim by any other person to any part thereof.

14 It is alleged that the representations were in writing and were contained in, or reasonably inferred from, the vendors' answer to Requisition 3.

15 The plaintiff alleges that the representations were false and were known to be false and make claims in deceit and negligence. The damages claimed are as follows:

Value of the part of the land acquired by adverse possession $9,800

Legal costs of proceeding No Cl-08-02780 (thrown away to date and continuing) $31, 618.36

Cost of redrawing building plans necessitated by the said acquisition of land

$1,850

Losses occasioned by the delay in redevelopment caused by the said County Court proceeding $1,500

Further particulars of loss and damage will be provided prior to trial

16 The claim in contract alleges that it was a term of the contract of sale that the vendors would convey to Rise Home, or alternatively, to Mr Skliar, the whole of the land free from any claim by any other person to any part thereof.

17 Breach and damages as previously stated are alleged on the breach of contract.

18 The vendors apply for judgment under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 and under the court's inherent jurisdiction on the grounds that the proceeding does not disclose a cause of action, and under r 23.03 on the grounds that the vendors have a good defence on the merits. They also seek an order under r 23.02 that the plaintiff's statement of claim indorsed on the writ be struck out on the basis that it does not disclose a cause of action.

19 Rise Home for its part applies to join Mr Skliar as an additional plaintiff in the proceeding. The vendors oppose the application on the ground that Mr Skliar's claim is hopeless.

20 To obtain judgment under r 23.01 or r 23.02, the defendants in essence bear the onus of establishing that the plaintiff's case is hopeless, does not admit of argument and can not be saved by amendment.[2] Insofar as the defendants allege that the pleading discloses no cause of action, the court assesses that claim on the assumption that pleaded facts will be made out.

21 The vendors contend that this claim is hopeless as on the authorities no contract was entered into between Rise Home and the vendors. For the reasons given by Mukhtar AsJ, I agree.

22 Rise Home contends that I should decline to follow or distinguish 428 Little Bourke Street Pty Ltd v Lonsdale Street Café Pty Ltd.[3] In particular, Rise Home argues that in that case the nominee was nominated merely to take a transfer or conveyance in lieu of the purchaser, rather than as an unqualified substitute purchaser. Rise Home contends that in this case the nomination was not so limited but that Rise Home was nominated to be a subsequent purchaser. Rise Home also relies on the decision of Finkelstein J in Avzur Hotels Pty Ltd v Ivanhoe Entertainment Pty Ltd.[4] Finkelstein J held that a nomination procedure provided in a contract of sale was effective to constitute the nominee a contracting party. In my opinion, the decision is merely an example of the general rule that whether or not the nomination has the effect of constituting the nominee, the identity of a contracting party is a matter of contractual construction. As Mukhtar AsJ explains in this case, the nomination clause in issue here is identical to that the subject of Judd J's decision in 428 Lt Bourke Street and there are no other factors that could found an arguable case that the nomination had the effect of constituting Rise Home a contracting party.

23 In my view, the Rise Home's claim that it became a party to the contract of sale is bound to fail.

24 In my view, the facts alleged support the conclusion that the representations alleged were continuing in nature. If Rise Home can establish it relied on these continuing representations when accepting the transfer of the land into its name and providing the relevant consideration, then in my opinion Rise Home may have a valid cause of action.

25 A critical issue with respect to this action is whether Rise Home relied on the representations. It alleges that it did. The evidence before me suggests that it knew of the misalignment of the rear boundary. That did not mean that it necessarily knew that Chambers or any other person could lay a claim to the slither of land. The vendors could have conveyed this information in their answer to Requisition 3, as to any discrepancies between occupation and title, a fact that has not been disputed. However, it is not appropriate for me to fully explore the possible defences to this claim on the limited material before me. Subject to my comments below about Rise Home relying on representations made directly to Mr Skliar and the possible defence offered by clauses 2 and 3 of the special conditions, in my view, the claim is not hopeless.

26 I note that the answer to Requisition 2 may also support the representations relied on. To the question, "Who is in possession or occupation of the property and by what right?", the defendants answered that the vendors were as registered proprietors. On the facts alleged, this representation may be false.

27 In 428 Lt Bourke Street, Judd J considered the issue of whether a nominated purchaser had an arguable cause of action under s 82 of the Trade Practices Act and s 159 of the Fair Trading Act. There, the basis of the claim was a representation that the purchased property had less lettable space than represented. The true state of affairs was known by the purchaser and the nominated purchaser prior to the payment of the purchase price and settlement. Judd J held, in effect, that the loss if any to the nominee, in the sense of the difference between the contract price and the property's true value, was not caused by the representations, but was caused by either the purchaser nominating the nominee as the purchaser, or the nominee electing to proceed as the transferee knowing of the true lettable area of the property.

28 Judd J considered that the nominee may have become bound to take a transfer of the property by force of the nomination. In my view, it is arguable that an effective nomination requires the acquiescence of the nominee. It is unnecessary for me to decide that issue.

29 In this case, the defendants allege that Rise Home was aware of the misalignment of the rear boundary. If that be the case, it does not follow that Rise Home necessarily knew that Chambers had a valid claim to the property occupied by her under adverse possession. I understand Rise Home's case to be that it was not so aware.

30 In my view, it is arguable that Rise Home, as the nominee, relied on the alleged representations in electing to accept the transfer of the property and in procuring the payment of the balance of the purchase price. In my view, it is arguable that the defendants were aware that a nominee of Mr Skliar may rely on their alleged representations, as conveyed by the answers to requisitions, in electing to take a transfer of the property and procuring the payment of the balance of the consideration. In my view, it may be arguable that Rise Home suffered loss and damage when, relying on the false representations of the vendors and in the belief it was obtaining good title to the whole of the property, it elected to take a transfer of the property and procured payment of the balance.

31 Rise Home contends that the facts relied on may also give rise to the allegation that the defendants acted recklessly, not caring whether their answer was true or false, in answering the requisition as they did, so as to support the cause of action in deceit.[5]

32 If Rise Home can bring an action in deceit where the representation was not made directly to it but to Mr Skliar, then this does appear to be an arguable cause of action.

33 I now turn to consider whether or not Rise Home might have a cause of action in deceit or negligent misstatement where the representation was made directly to Mr Skliar and only indirectly to Rise Home.

34 In my view, it is arguable that the law in this area is broad enough to allow the nominee company to rely on the representation made to the contracting party. In Commercial Banking Co of Sydney Ltd v RH Brown & Co,[6] for example, Menzies J said:

A person who makes a false and fraudulent misrepresentation is only liable to the persons to whom it is made, i.e. to the persons whom it is intended should act upon it.[7]

35 It appears there may be no requirement for the plaintiff to show that the false representation was made directly to the plaintiff, although it is necessary to establish that the representation was made to the plaintiff to induce him to act upon it. Menzies J said:

It is not necessary for liability that the misrepresentation should be made directly, it can be made to one, to be passed on to another; it is not necessary that it should be made to a particular person; it can be made to a group to which the plaintiff belongs so that the plaintiff is one of those intended to be deceived. The representation must, however, in one way or another, be made to the plaintiff to induce him to act upon it.[8]

36 In Commercial Banking Co of Sydney Ltd v RH Brown & Co,[9] the defendant bank made a false representation as to the creditworthiness of one of its customers. The court held that the defendant bank was liable for deceit even though the plaintiff did not make the enquiry; rather the enquiry was made through the plaintiff's bank. It was evident that the plaintiff's bank would pass on the representation to the plaintiff and because the defendant knew this, the defendant was held to have had the intention that the representation would be relied upon by the plaintiff.

37 Further, there is some support for the proposition that where the representation is made to the 'controlling mind' of the company, the representation can be taken to have been made to the company itself. In Lake Koala Pty Ltd v Walker,[10] Connolly J found that even though the representations were made to a person, who later became the controlling director of the plaintiff, the plaintiff had a cause of action against the defendant. In that case, the plaintiff had purchased a motel and restaurant business from the defendants. The plaintiff claimed that the defendants fraudulently misrepresented the outgoings of the restaurant business to Mr Narramore, who later became the controlling director of the plaintiff (after receipt of the report but before the sale).

38 Connolly J found that it was the common intention of Mr Narramore and the defendants that the information given to Mr Narramore should be treated as having been given to the ultimate purchaser and accordingly, the representations were to be taken to have been made to the plaintiff. His Honour said:

A problem which arises, although it was not the subject of any submissions, lies in the fact that although the statement of claim alleges that the relevant representations were made to the plaintiff, they were in fact made to Mr Narramore at a time when the plaintiff, which would seem to be what is described as a shelf company, had not even been acquired. The fact however is that it was [the defendant] who suggested that the Narramores should conduct their operations through a company and that they should acquire a shelf company for that purpose. Mr Narramore is obviously the controlling director and what is sometimes called the mind of the company. It was thus, I think, the common intention of the Narramores and the defendants that the information given to Mr Narramore should be treated as having been given to the ultimate purchaser. As long ago as 1921 Poole J. in Mount Gambier Co-operative Milling Society Limited v. Williams [1921] S.A.S.R. 185 concluded that in such a situation the representations must be taken to have been made to the company.[11]

39 For these reasons, I do not consider the action by Rise Home in deceit is bound to fail on these grounds.

40 As to the claim in negligence, it is arguable that the law in this area is broad enough to allow the nominee company to rely on the misstatement made to the contracting party. In San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979,[12] the High Court in considering a claim for negligent misrepresentation held that no duty of care was owed to a developer who claimed damages from a council and a planning authority on the basis that it had suffered loss by relying on representations contained in documents adopting a scheme to redevelop a suburban area in Sydney. No duty of care was owed because the defendants had done nothing to assume responsibility for the representations and there was no intention to induce the plaintiffs to rely on the representations.

... where a statement is made for the purpose of inducing the plaintiff, or the members of a limited class including the plaintiff, to commit themselves financially upon the basis that the statement is true, and the plaintiff acts in reliance on the statement, the law will impose a duty of care on the maker of the statement.[13]

... it is necessary not only that A intends that B or members of a class of persons should act or refrain from acting in a particular way, but also that A makes the statement with the intention of inducing B or members of that class, in reliance on the statement, to act or refrain from acting in the particular way, in circumstances where A should realize that economic loss may be suffered if the statement is not true. In cases where the defendant intends the statement to operate as a direct inducement to action, the reasonableness of the reliance will not be a critical factor, although in other cases the defendant's appreciation of the reasonableness of reliance will be relevant.[14]

43 It was necessary, in that case, for the appellants to show that they were members of a class of developers who acted on the council and planning authority's representations.

44 More recently, in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd,[15] Gillard J observed that a duty of care in a negligent misstatement case would exist if:

(i) the advice is required for a purpose which is known to the adviser when the advice is given;

(ii) the plaintiff relied upon the statement made by the defendant;

(iii) the adviser knows the advice will be communicated to the plaintiff either specifically or as a member of an ascertainable class in order to be used for the purpose;

(iv) that the adviser, expressly or impliedly, undertook the responsibility of exercising reasonable care in making the statement;

(v) it is expressly or impliedly known that the advice is likely to be acted upon without independent enquiry;

(vi) that the plaintiff, in reliance upon the statement, suffered loss.

45 In a negligence claim it appears to be arguable that it is unnecessary that the misstatement is made directly to the plaintiff, only that the defendant knows that the misstatement will be communicated to the plaintiff as a member of an ascertainable class of persons.

46 For these reasons, I do not consider the action by Rise Home for negligent misrepresentation is bound to fail on this ground.

47 I observe, however, that the pleaded actions in deceit and negligent misrepresentation may need to be amended to plead the necessary elements referred to in the cases, such as in deceit that the defendants intended Rise Home or a class of persons including Rise Home to rely on the representations.

48 Accordingly, in my view, subject to my discussion of clauses 2 and 3 of the special conditions below, the claims by Rise Home in tort as pleaded, or that might be pleaded, are not so untenable as to be hopeless.

49 There is no dispute that Mr Skliar entered into a valid contract. Subject to the discussion below on clauses 2 and 3 of the special conditions, in my view, it is reasonably arguable that it was a term that the vendors would convey good title to the whole of the land described in the particulars of title, whether to Mr Skliar or his nominee. It is also arguable that that term was breached. The defendants allege, however, that any real damage could only have been suffered by Rise Home rather than Mr Skliar and there was no such damage in any event.

50 On the other hand, subject to the possible defences arising under clauses 2 and 3 of the special conditions, discussed below, it is arguable that Mr Skliar may be entitled to damages on the breach per se, even though he is unable to establish real damage.[16] On this basis, Mr Skliar may have an arguable case entitling him to judgment and an award of nominal damages.

51 Similarly to Rise Home, for Mr Skliar to make out a cause of action in tort he has to establish reliance and damage. The plaintiff concedes that Mr Skliar did not suffer the damage pleaded. It argues instead that Mr Skliar may have suffered damage as a beneficiary of the trust on whose behalf Rise Home acquired the property. However, a discretionary beneficiary does not have a proprietary interest in the trust assets (unless distributed to the beneficiary), only a right to have the trust observed which includes the right to be considered for distribution.[17]

52 In any event, there is no material before me which suggests Mr Skliar could plead any damage. In my opinion, Mr Skliar does not have an arguable claim to damages for tort.

ARE RISE HOME AND MR SKLIAR DENIED RELIEF BY THE CONTRACT OF SALE?

53 The defendants allege that clauses 2 and 3 of the special conditions prevent Rise Home or Mr Skliar from complaining about the disconformity between the title and the property sold.

IDENTITY

2 The Purchaser hereby admits the identity of the property with that described in the Particulars of Sale and no objection shall be taken or requisitions made and no compensation shall be claimed or allowed by reason or any discrepancies between the actual area, boundaries, measurements or position of the property as occupied and the same as shown or described in the Particulars of Sale nor shall the Purchaser be entitled to call upon the Vendor to amend the Title or to bear or to contribute to the expense of any amendment of Title. Condition 3 of Table A of the Transfer of Land Act shall not apply to this Contract.

WARRANTIES EXCLUSION

3 It is hereby agreed that there are no conditions, warranties or other terms affecting this sale other than those embodied herein and the Purchaser shall not be entitled to rely on any representations made by the Vendor or the Vendor's Agent except as are made conditions of this Contract.

55 The defendants submit that these terms make it clear that if there is a discrepancy between the property as occupied and that described in the contract of sale, the purchaser has no recourse for action. The defendants argue that any representation made by the answer to requisitions is qualified by these conditions.

56 Rise Home contends that clause 3 by its terms does not meet the complaint about the misleading answers to requisitions. It says that the provision that says the Purchaser shall not be entitled to rely on any representations made by the Vendor or the Vendor's agent does not apply to those "made conditions of this Contract". It argues the answers to the requisitions are "conditions of this Contract". In my view, that contention is reasonably open to be argued.

57 Further, Rise Home contends that clauses 2 and 3 in any event could not be an answer to deceit or negligent misrepresentation by Rise Home.[18] There are reasonable grounds for contending that a contractual exclusion clause does not apply to exclude a claim based on actual fraud. In Suburban Homes Pty Ltd v Topper, [19] for example, the vendor's agent had induced a purchaser to enter into a contract to purchase land by making a number of fraudulent misrepresentations. The contract contained a stipulation that the vendor would not be responsible or liable for or bound by any conditions, statements, promises or representations made by any agent of the vendor other than as appeared in the conditions of sale. The High Court of Australia approved the decision of Cussen J of the Supreme Court of Victoria where held that the stipulations purporting to exonerate the vendor from responsibility were not applicable in a case of fraud. Further, in Jennings v Zilahi-Kiss,[20] Bray CJ of the Supreme Court of South Australia said that no provision in a contract can afford a defence to a claim for fraud, unless the plaintiff knowingly and with advertence to the question of possible fraud bargains away his rights.[21] More recently, in HIH Casualty & General Insurance Ltd v Chase Manhattan Bank,[22] Lord Bingham (with whom Lord Steyn agreed) of the House of Lords held, in reference to an exclusion clause, that where there is fraud, 'it vitiates judgments, contracts and all transactions whatsoever'.[23]

58 In a negligent misrepresentation action, whether or not an exclusion clause has the effect of protecting the defendant's liability in negligence is a question of strict construction.[24] Generally, exemption clauses are to be strictly construed against the parties who rely on them and liability for negligence is only excluded if the clause contains 'clear words' to that effect.[25]

59 Further, Rise Home contends that clauses 2 and 3 do not apply to Rise Home's complaint in deceit and negligent misrepresentation if it was a non contracting party. In my opinion, that contention is reasonably open to be argued by Rise Home.[26] By virtue of the privity of contract rule, exclusion clauses only protect the parties to the contract[27] and it is certainly arguable that Rise Homes is a non contracting party and therefore the exemption clauses do not apply to it.

60 As indicated above, I do not consider Mr Skliar has an arguable case in tort.

61 Clauses 2 and 3 may provide a good defence to Mr Skliar's action in contract. In my opinion, however, it is reasonably open for Mr Skliar to argue that clause 3 recognises that he is not excluded from complaining about representations that are conditions of the contract, and that the answers to requisitions are such representations. In my opinion, the existence of clauses 2 and 3 of the special conditions does not lead to the conclusion that Mr Skliar's cause of action for breach of contract is hopeless.

62 As indicated above, to obtain judgment under r 23.01 or r 23.02, the defendants in essence bear the onus of establishing the plaintiff's case is hopeless, does not admit of argument and can not be saved by amendment. In my opinion, the defendants have not satisfied this test.

63 With regard to the application to strike out the statement of claim, I find that the contract claim of Rise Home should be struck out. I am not prepared to strike out the tortious claims of Rise Home.

64 Accordingly, I allow the appeal and in lieu of the orders made, I make the following orders:

• That the applications by the defendants for judgment be dismissed;

• That the contract claim of the plaintiff be struck out.

65 As to the plaintiff's summons, I give leave for Mr Skliar to be joined as an additional plaintiff and for the plaintiffs to amend the statement of claim in relation to the tortious claims of Rise Home. I also give leave to the plaintiff to make a claim for breach of contract by Mr Skliar as discussed above.

[1] Rise Home Loans Pty Ltd v Dickinson [2009] VSC 555.

[2] 428 Little Bourke Street Pty Ltd v Lonsdale Street Café Pty Ltd [2009] VSC 133; and the cases Judd J cites therein including: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; Little v Law Institute of Victoria (No 3) [1990] VicRp 25; [1990] VR 257; Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd (1899) 1 QB 86; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129, 130; Mutual Life and Citizens Assurance Co Ltd v Evatt [1970] UKPCHCA 2; (1970) 122 CLR 628; Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256, 275.

[3] [2009] VSC 133 ('428 Lt Bourke Street').

[8] Ibid. See also, Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205, 211 where Lord Maugham said that the representation must be 'made with the intention that it should be acted upon by the claimant, or by a class of persons which will include the claimant'.

[16] The Medina [1900] AC 113 at 116 per Lord Halsbury LC; Marzetti v Williams [1830] EngR 839; (1830) 1 B & Ad 415.

[17] Gartside v Inland Revenue Commissioners [1967] UKHL 6; [1968] AC 553 at 617 per Lord Wilberforce.

[21] Ibid at 510. Citing Allen v Empire Life and General Assurance Co Ltd (1926) 22 Tas LS 9; Suburban Homes Pty Ltd v Topper (1929) 35 ALR 294; Snarski & Snarski v Barbarich [1969] WAR 46; Wehr v Thom [1969] WAR 39.

[23] Ibid at 68. See also 76-8 (Lord Hoffmann); 81 (Lord Hobhouse) and 84-5 (Lord Scott, dissenting).

[24] Davis v Pearce Parking Station Pty Ltd [1954] HCA 44; (1954) 91 CLR 642, 649; Wilson v Darling Island Stevedoring & Lighterage Co Ltd [1956] HCA 8; (1956) 95 CLR 43, 70; Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346, 359 (Samuels JA), 367 (Mahoney JA).

[25] Davis v Pearce Parking Station Pty Ltd [1954] HCA 44; (1954) 91 CLR 642, 649; Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346, 359 (Samuels JA), 367 (Mahoney JA).

[27] Wilson v Darling Island Stevedoring & Lighterage Co Ltd [1956] HCA 8; (1956) 95 CLR 43, 67 and 80.

Court (General Civil Procedure) Rules 2005

Planning and Assessment Act 1979

At a glance

Court

Decision date

Before

Source

Judgment (125 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)