Paragraph 87(b)
30 Paragraph 87 of the Amended Statement of Claim claims:
'87. By:
(a) making the Co-operation Representation and the Notification and Extension Representation;
(b) continuing to accept and acknowledge the informal arrangement whereby the Applicant kept the Respondent fully informed of all relevant matters and developments and continuing to deal with the Applicant on that basis; and
(c) subsequently seeking to resile from the Co-operation Representation and the Notification and Extension Representation,
the Respondent has engaged in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the TPA [Trade Practices Act].'
(Sub-paragraph (c) was inserted by the Amended Statement of Claim.)
31 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote:
'87(b) This global allegation is not otherwise a subject of specific paragraphs which contain the material facts on which the Applicant sets up basis for allegation of this type. We require the following further and better particulars.
As to the "informal arrangement":
(i) does the applicant allege that an arrangement arose as a result of some communication or communications between the parties?
If YES, was the communication oral, written, or partly oral and partly written?
If oral, who were the parties of the conversation, what was the substance of each conversation, and when did the conversation(s) … occur?
If written, provide copies of all documents which form the written communication.
(ii) If NO, what are the facts, matters and circumstances which the applicant alleges gave rise to the informal arrangement?
(iii) The only term of the "informal arrangement" that appears in the pleading is one where it is maintained that the Applicant kept the Respondent "fully informed" of "all relevant matters and developments".
With respect, the generality of this assertion makes it impossible to understand the case that the Applicant is seeking to make.
It would be surprising that the Court would allow such an allegation to move forward without its full elaboration by allegations of the material facts.
Unless we receive particulars that assist us in appreciating the case that is sought to be made we will move to strike out paragraph 87(b) and will amend the Notice of Motion accordingly.
In an attempt to avoid further dispute your client may wish to reconsider its position and the answer that it has provided.
The Respondent is entitled to know what "relevant matters" is said to encompass.
The Respondent is entitled to know what "developments" is intended to refer to.
The Respondent is entitled to know how the applicant maintains it "kept the Respondent full[y] informed" of these matters.
Please provide the necessary information that we sought to expose by our original request for further and better particulars without delay, and which we repeat:
In relation to each of the alleged acceptance and acknowledgment referred to in paragraph 87(b), was the acceptance or acknowledgment respectively:
(iv) Express; or
(v) Implied?
If it was express, was it:
(A) Written;
(B) Oral:
(C) Partly written and partly oral?
If it was written or partly written, please identify the documents and provide copies.
If it was oral or partly oral, pleases identify the parties to, date and location of, and substance of, any alleged conversation.
If the alleged acceptance and acknowledgement was implied, please provide full particulars of the facts, matters and circumstances the Applicant asserts gives rise to that implication.
(vi) As to paragraph 87(c) and (d), please provide full particulars of the facts, matters and circumstances forming the basis upon which you allege that the Respondent formed an intention to resile from its alleged position, and then intentionally conceal that intention.'
32 In its response, Doyles, on behalf of Sides Engineering, responded:
'The informal arrangement arose by way of oral and written communications between the parties details of which are matters of evidence.
Generally, the relevant matters and developments of which the Respondent was kept informed relate to the repair of the barge and anticipated return to work.
Evidence of how the Applicant kept the Respondent fully informed is not a proper matter for particulars. Notwithstanding this please refer to the Affidavit of Graham Van Damme dated 17th June 2005 filed in support of the Adjudication Application.
The remainder of this Request has been replied to. See Replies to Particulars dated 15th September 2005 and 27th September 2005, and the further particulars herein.'
33 Again, I am not satisfied that Sides Engineering's response is adequate. It is not a proper response to what, in large part, are proper requests for further and better particulars. This certainly applies to the requests made in (i), (ii), (iii) (iv) and (v) of 87(b) and Sides Engineering must provide the best particulars it can of these matters.
34 The request made in (vi) has its own problems of comprehension. First, there is no sub-par 87(d) in the Statement of Claim and sub-par 87(c) was only inserted by the Amended Statement of Claim. Second, the request seeks particulars of matters going to Energetech's intention, but sub-par 87(c) does not contain any allegations going to Energetech's intention - whether to resile from a position or to conceal that anterior intention. I will not direct Sides Engineering to respond to this request.