Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd
[2017] QCA 162
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- Unreported Judgment
- Appeal Determined (QCA)
- Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd[2017] QCA 162
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Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd[2017] QCA 162
Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd[2017] QCA 162
SUPREME COURT OF QUEENSLAND
CITATION: | Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2017] QCA 162 |
PARTIES: | MINERALOGY PTY LTD ACN 010 582 680 (appellant) v BGP GEOEXPLORER PTE LTD (respondent) |
FILE NO: | Appeal No 3045 of 2017 SC No 3482 of 2016 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2017] QSC 18 |
DELIVERED EX TEMPORE ON: |
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DELIVERED AT: | Brisbane |
HEARING DATE: | 1 August 2017 |
JUDGES: | Fraser and Philippides JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where the appellant sought leave to amend its statement of claim – where the primary judge refused leave to the appellant to make substantial amendments to the appellant’s statement of claim – where the primary judge allowed some amendments but refused others – where the respondent argued that amendments would prevent the matter from being heard within the allotted five days – whether the primary judge erred in refusing to give leave to the appellant to make the proposed amendments |
COUNSEL: | S S Monks for the appellant J Bell QC with T Pincus for the respondent |
SOLICITORS: | Alexander Law for the appellant GRT Lawyers for the respondent |
FRASER JA: This is an appeal against a decision by a judge of the trial division to refuse leave to the plaintiff to make substantial amendments to the plaintiff’s statement of claim. The plaintiff guaranteed the debts and obligations of a company, which has been referred to as Palmer Petroleum, being obligations owed under a contract to the defendant.
The trial judge allowed some amendments and refused others. Broadly speaking, the amendments allowed were ones which the trial judge considered would not put at risk a prompt trial. The primary judge took into account various discretionary considerations, notably including a very substantial period of delay in the context of a commercial cause and the plaintiff pleading grounds of denial of a liability to the defendant in relation to payments that Palmer Petroleum had made to the defendant.
The amendments which are in issue in the appeal fall within two categories. First, there are amendments in paragraphs 34 through to 50 of the statement of claim. In the first part of this category, paragraphs 34 to 37 plead, for the first time, a denial of liability on the ground of the defendant / respondent’s non-compliance with provisions of the parties’ agreement concerning payment and the form and detail of claims for payment. A principal ground of the primary judge’s decision to refuse leave to allow this amendment was that the plaintiff’s claims of breaches of the contract substantially reiterated the text of the contractual requirements as to form and content of payment claims accompanied by a contention that they were not complied with. Thus, for example, paragraph 35(b) of the pleading alleged that invoices were not accompanied by “all relevant documents” to support invoices, as was required by article 5.1 of the contract. Similarly, paragraph 35(d) alleged that invoices, including charges for reimbursable items were not “fully supported” by “sufficient” original documentation required by article 5.4 of the parties’ agreement.
In relation to those paragraphs, the primary judge found that, bearing in mind the proximity of the trial, the degree of particularisation was completely inadequate. His Honour recorded having asked the plaintiff’s counsel to identify what were the relevant documents required to support the invoices. Counsel was unable to respond. The primary judge also referred to the disclosure, making the point that there might have been a false assumption by the plaintiff that the defendant had disclosed the required supporting documentation. The primary judge pointed out that the failure to disclose that sort of documentation was not evidence that there had been a failure under the contract to supply the documents, because at the time of disclosure there was no issue about the supporting documentation.
Counsel for the appellant supported the pleading, arguing that it was sufficient to allege breaches in the broad terms they were alleged. However, he also, appropriately, took the Court to documents which showed that supporting documents had been provided and apparently had been contended for the respondent to be the supporting documents required for payment. In my respectful opinion, it is not arguable that it was a sufficient pleading of these alleged breaches simply to repeat the terms of the contract without identifying what documents were said to be relevant and were not supplied and what documents were said to be required for “sufficient” documentation and were not supplied.
Counsel for the plaintiff in the trial division, and the different counsel retained on the appeal for the appellant, referred to a provision in the contract requiring invoices to be signed by a representative of Palmer Petroleum. In view of the background to the litigation, including the failure of the director common to both the alleged debtor and the guarantor ever to raise this before, the primary judge was not satisfied that it was sufficient for the plaintiff to make such a broad allegation. The primary judge made the point that no suggestion along the lines of those pleaded in paragraph 35 had been raised before 13 January 2017, despite the fact that the controllers of the appellant had previously controlled the debtor company.
I am not persuaded that there was any error in the primary judge’s decision that this pleading was, in effect, hopelessly inadequate. That is reason enough to dismiss the appeal insofar as it relates to that part of the pleading.
The second part of the proposed pleading in this category is in paragraphs 38 to 50. It commenced with this proposition:
“Before making demand of Mineralogy for payment under the guarantee, BGP, acting fairly, was required to provide Mineralogy with invoices in a manner that would satisfy the requirements of Article 5 of the Agreement and / or would provide sufficient information to Mineralogy that monies said to be due and owing under the Agreement (and therefore the guarantee) were due and owing …”
The basis for the alleged obligation is not explained by any paragraph of the pleading. It was submitted for counsel for the appellant that this was a case in which a party sought to develop the law, and, for that reason, it was not appropriate to uphold the primary judge’s decision striking out these paragraphs, unless the Court was persuaded that this claim was not fairly arguable.
The guarantee includes a statement that the guarantor reserves “the ability to assert any claims or defenses available to our affiliate Company”. Even if it were possible to construct some implied obligation analogous to that which is pleaded in the abstract, it is very difficult to see that any such implied obligation could arise in a case in which the guarantor has, as it alleges, an entitlement to assert claims and defences available to the principal debtor. No authority was cited which supplies any support for the legal development upon which this aspect of the pleading apparently relies. In these circumstances, I am not prepared to say that the primary judge erred in considering that this claim was not maintainable.
The second category of the proposed amendments is contained in paragraphs 120 to 122. This claim relies upon previous pleadings of claims under the Trade Practices Act 1974, under the Australian Competition Law, and for breach of contract by Palmer Petroleum. The central paragraph of this claim, paragraph 121, alleges that in the premises of each of those claims:
“the Agreement is liable to be terminated ab initio and Palmer Petroleum is entitled to repayment of the sum of USD 18,220,148.21 from BGP.”
Counsel for the appellant properly acknowledged that the plea was unsatisfactory because it rolled up a series of different claims and attributed the same consequence to each of them, namely, a liability for the agreement to be terminated ab initio and an entitlement to repayment of a sum exceeding $18 million. It is evident, and this was, again, properly acknowledged by counsel for the appellant, that the statutory claims must be put on the basis that the claim is not, in truth, that the agreement is liable to be terminated ab initio. Rather, if those statutory claims are made out, the plaintiff seeks discretionary remedies under the various statutory provisions. That may be contrasted with the claim for breaches of the agreement, which could only result in a claim for damages.
Furthermore, in the course of argument counsel for the appellant outlined what were submitted to be the factual bases of a claim that breaches of the agreement were causally related to the damages exceeding $18 million. Those facts are not pleaded.
For those reasons, this part of the pleading also should not have been permitted by the primary judge.
There is a dispute whether or not the reasons given by the primary judge for refusing leave to add this claim were adequate. It is true that the primary judge did not address this pleading in terms or advert to the unsatisfactory aspects of it, which were acknowledged in the course of argument. On the other hand, the primary judge did refer to the strong discretionary reasons for not permitting such a substantial amendment to the pleadings at this late stage of the proceedings. It is unnecessary for the Court to deal with that dispute. Particularly because it is a pleading for a very large amount of money, it is plainly unsatisfactory. This Court should not allow it to be added.
The appellant also sought orders which would allow further amendments to the amended pleading for which the primary judge refused leave. The principal amendment which was sought was the addition in paragraph 121 of words which were intended to differentiate the relief sought for breaches of contract from the relief sought under the statutory claims. This proposed amendment did not achieve the stated purpose for reasons which were discussed in argument and which I apprehend are not in issue. It seems evident that a great deal more would need to be alleged to regularise that part of the pleading. For the reasons already given, the pleading would remain unsatisfactory in relation to the causal links between the alleged breaches of contract and the loss or damage claimed. It is therefore not necessary to consider further the proposed amendment. It should be refused in any event.
The appellant proposed another (minor) amendment, which was not discussed in the trial division, relating to the first section of the pleading. It is not necessary to consider that amendment. It would not cure any of the defects identified by the primary judge.
For these reasons, I would dismiss the appeal, and I would refuse leave to amend paragraph 3(a) of the notice of appeal.
PHILIPPIDES JA: I agree with those reasons. I would add some comments in relation to the complaint concerning the adequacy of the reasons given by the primary judge in relation to the refusal to allow amendments to paragraphs 120 to 121. The arguments advanced by the Applicant lacks utility. Counsel quite properly accepted that there were deficiencies in the plea before the primary judge in any event. Those difficulties were sought to be overcome by further amendments with respect to which leave was sought before this Court. The proposed amendments and the arguments advanced by counsel reveal that what, in truth, is sought to be done now is to introduce by the back door, as it were, a claim for damages for breach of contract and/or a claim for loss for contravention of the relevant statute. But even those further proposed amendments are themselves flawed in that they fail to achieve that purpose. For those additional reasons, I would also agree that the appeal be dismissed and the leave sought should be refused.
DOUGLAS J: I agree with the reasons of Justice Fraser and Justice Philippides and the orders proposed. I merely wish to add, in the context mentioned by Justice Fraser that the plaintiff or the plaintiff’s controllers were in control of Palmer Petroleum until 22 July 2016, yet no suggestion of the kind sought to be pleaded in paragraphs 34 to 50 had been made earlier that his Honour, the learned primary judge, also said that there was at least some evidence of a history of dealings between the defendant and Palmer Petroleum on the footing that the sum claimed by the Defendant was due or payable, but the payment was to be deferred, and no account seemed to have been taken of any of those dealings in relation to this proposed additional ground of non-liability. See paragraph 100 of his Honour’s reasons. There was such evidence, to which we were taken, at pages 565 to 566 of the appeal record, which seemed to me to justify that element of his Honour’s exercise of discretion also.
FRASER J: I record my agreement with the additional reasons given by my colleagues.
The orders of the Court are that the application to amend paragraph 3 of the notice of appeal in subparagraphs (5) and (6) of that paragraph is refused, but otherwise leave is given to amend the notice of appeal, and the appeal is dismissed.
…
The respondent has applied for an order dismissing with costs an application for a stay of various orders made by the primary judge, including the order listing the matter for trial. The appellant contends that it was at some stage made clear to the legal representatives for the respondent that this application need not be pressed. If so, that is a matter which could be raised before the assessor, but in my view it does not justify not making an order for costs in favour of the respondent, which, after all, has been successful in the appeal and in disposing of this application. I would therefore order that the application filed in this appeal by the appellant on 2 May 2017 be dismissed with costs.
PHILIPPIDES JA: I agree.
DOUGLAS J: I agree.