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CITE

Unreported Judgment

Robielle Pty Ltd v Pilsack Pty Ltd (No 2)[2010] QDC 339Dodds DCJ
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Robielle Pty Ltd v Pilsack Pty Ltd (No 2)[2010] QDC 339

DISTRICT COURT OF QUEENSLAND

CITATION:	Robielle Pty Ltd v Pilsack Pty Ltd & Ors (No 2) [2010] QDC 339
PARTIES:	ROBIELLE PTY LTD ACN 111 205 282 Plaintiff v PILSACK PTY LTD ACN 065 055 389 First Defendant and BARRY ROBERT FISHER Second Defendant and AAA ACCOUNTING PTY LTD ACN 078 837 000 Third Defendant and RODNEY SOMERVILLE Fourth Defendant
FILE NO:	304 of 2006
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	3 September 2010
DELIVERED AT:	Maroochydore
HEARING DATE:	9 July 2010, 5 August and 20 August 2010
JUDGE:	K S Dodds, DCJ
ORDER:	I order the plaintiff’s application filed 8 June 2010, the subject of my reasons delivered 5 August 2010, be dismissed. I order that the first and second defendants have leave to withdraw the deemed admissions identified in the reasons of the court in this proceeding, delivered on 5 August 2010. I order that the first and second defendants have leave to file a second further amended defence of the first and second defendants in terms of exhibit 1 to the affidavit of Christopher Robert Sutton filed 18 August 2010. I order the application by the first and second defendants for further and better particulars be dismissed.
CATCHWORDS:	APPLICATION – by defendant for leave to withdraw deemed admissions – application for leave to file an amended defence Uniform Civil Procedure Rules 1999 r 5, r 166, r 188, r 190 r 292, r 375 Cases cited: Cassie v Bogdan & Anor [2004] QSC 275 Coopers Brewery v Panfida Foods Ltd (1992) 26 NSWLR 738 Equuscorp Pty Ltd v Orazio [2000] QCA 117 Equuscorp Pty Ltd v Orazio [1999] QSC 354 House v the King (1936) 55 CLR 499 Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
COUNSEL:	J W Lee for the plaintiff S M Gerber for the first and second defendants No appearance for the third and fourth defendants
SOLICITORS:	Adrian Hawkes Lawyers for the Plaintiff Sutton’s Law for the first and second defendants No appearance for the third and fourth defendants

[1]
On 5 August 2010 I published my reasons in the matter of an application by the plaintiff company for judgment against the first and second defendants (the defendants) for $93,000 for breach of a compromise agreement. The application was based upon deemed admissions – rules 166 (4) and (5) of the Uniform Civil Procedure Rules 1999 (UCPR) with respect to the plaintiff’s pleading of the compromise agreement.

[2]
I concluded that the defendants were to be taken to have admitted certain allegations of fact:

the first and second defendants offered the plaintiff $93,000 in full and final settlement of the claim;
the plaintiff accepted the offer by executing an acceptance where required on the letter, signing it and returning it;
it was an implied term of the contract the sum of $93,000 would be paid within a reasonable time;
the first and second defendants had not paid the sum of $93,000 as promised or at all.

[3]
I indicated I would receive further submissions from the parties about orders, to be made in the light of my reasons.

[4]
On 18 August 2010 the defendants filed an application for orders that:

pursuant to rule 188 UCPR they be granted leave to withdraw the deemed admissions;
pursuant to rule 375 UCPR they have leave to file a second further amended defence in terms of a draft provided;
for certain particulars;
for costs of the application.

[5]
The defendants have exhibited a draft further amended defence which they seek leave to file (exhibit 1 to the affidavit of Christopher Robert Sutton, file 18 August 2010). It contains proposed amendments which if permitted, address the deemed admissions the subject of my reasons of 5 August 2010.

[6]
The plaintiff opposed the application. It sought judgment for $93,000 pursuant to rule 190(1) UCPR with costs of the action. Its opposition to the application by the first and second defendants was:

the first and second defendants had not satisfactorily shown the exercise of the court’s discretion in favour of leave to withdraw the submission should go in its favour;
additionally the pleading of the first and second defendants contained additional deemed admissions fatal to their defence to the plaintiffs claim for $120,000. There would therefore be no utility in giving leave since the pleadings otherwise show the first and second defendants are deemed to have admitted facts fatal to their defence.

[7]
Rule 188 UCPR provides “A party may withdraw an admission made in a pleading or under rule 187 only with the court’s leave.”

[8]
Rule 190 UCPR provides:

“(1)If an admission is made by a party whether in a pleading or otherwise after the start of the proceedings the court may on the application of another party, make an order to which the party applying is entitled on the admission.

(2)The court may give judgment or make another order even though other questions in the proceeding have not been decided---”

Background

[9]
The plaintiff’s claim and statement of claim was file on 12 November 2006. The compromise was not pleaded.

[10]
The defence of the defendants was filed on 7 December 2006.

[11]
On 12 December 2008 the plaintiff filed an application to dispense with the signature of the first and second defendants on the request for trial date. By consent that application was dismissed with the defendants to pay the plaintiff’s costs of the application.

[12]
On 29 May 2009 on the plaintiff’s application an order was made for mediation and the plaintiff was given leave to amend its claim and statement of claim within 14 days.

[13]
On 4 June 2009 the plaintiff’s amended statement of claim was filed. The compromise was pleaded for the first time. Notice of intention to amend to plead the compromise had been provided to the defendants in a letter from the plaintiff’s solicitor to the defendants’ solicitor dated 17 March 2009.^[1]

[14]
On 5 August 2009 the amended defence of the defendants was filed. Regarding the alleged compromise it denied offer and acceptance as pleaded by the plaintiff, asserted that the first defendant volunteered to make certain payments without obligation on conditions which were not complied with, denied there was any settlement as alleged or otherwise at law, said that even if there was a contract of compromise, the plaintiff did not comply with or satisfy the preconditions for payment under that contract.

[15]
On 18 December 2009 the plaintiff was given leave to further amend its claim and statement of claim. The compromise was pleaded as in the earlier amended pleading with some added allegations including that it was an implied term of the agreement of compromise that the sum of $93,000 would be paid within a reasonable time and that the first and second defendants had failed to pay the $93,000 or any part of it.

[16]
A further amended defence of the defendants was filed on 11 March 2010. It dealt with the alleged compromise in the further amended statement of claim in the way described in the reasons I delivered on 5 August 2010.

The Law

[17]
Whether leave be granted lies in the court’s discretion to be exercised judicially. That requires consideration of all relevant circumstances.^[2]It is a matter for the court. It is not a matter for consent although consent by the opposing party means that party does not contend they will be prejudiced if leave is granted.

[18]
As was said in Rigato Farms Pty Ltd v Ridolfi^[3]an admission, whether made or deemed to have been made by operation of the rules, should not be permitted to be withdrawn just for the asking or payment of costs. See also Equuscorp Pty Ltd v Orazio.^[4]The rules of procedure are important as is the philosophy underlying the rules setting procedure. As to admissions, their purpose is to ensure the court is called upon to determine only “bona fide questions in dispute” Coopers Brewery v Panfida Foods Ltd^[5]per Rogers CJ. McKenzie J adopted that statement in his determination in Equuscorp Pty Ltd.^[6]

[19]
In Cassie v Bogdan & Anor^[7]Chesterman J, as he then was, gave leave to a defendant to withdraw an admission made in the defence. He had concluded that there was a real question to be tried, the resolution of which may determine the proceeding in the defendant’s favour and there was no relevant prejudice to the plaintiff. In his reasons for his conclusion His Honour set out the principles which in his view governed the application to withdraw the admission. In that regard His Honour referred to the judgment of Bowen CJ in Cropper v Smith^[8]referred to with approval by the High Court in State of Queensland v JL Holdings Pty Ltd.^[9]

[20]
What seems to me emerges from the cases I have touched upon is that in an application such as this all the circumstances are to be considered; matters such as:

that the court’s role in any proceeding so far as is possible, is “to ascertain the facts and base its judgment upon them”;^[10]
the rules of procedure which are intended to operate to expose the real questions in issue. It will ordinarily be necessary for an applicant, on oath, to satisfy the court that the admission sought to be withdrawn is important to an issue in the trial and at trial will be the subject of sworn evidence;
the philosophy underlying the rules;
an explanation on oath explaining how the admissions came to be made;
prejudice/injustice to a respondent to the application if an admission is permitted to be withdrawn.

Discussion

[21]
Attention to the requirements of the pleading rules is important. What may once have been accepted practice in pleading denials is no longer. The new rules are to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.^[11]

[22]
In this case the deemed admissions arise from the lack or inadequacy of a direct explanation of denials of allegations in the plaintiff’s statement of claim. While the defence of the defendants the subject of the earlier application did not plead in accordance with the rules, it did expose that the defendants contested there was an offer of compromise which was accepted, alternatively that if there was an offer of compromise it was conditional and the conditions were not met. The plaintiff has been aware of these contentions since about 5 August 2009 when the first amended defence was filed. The contentions have been the subject of affidavit evidence by the second defendant.

[23]
As I observed in my earlier reasons it may be arguable at trial, if the deemed admissions are withdrawn, whether the offer relied upon as an offer of compromise is enforceable as such. It may also be arguable whether the offer was made on behalf of the defendants or only the first defendant. These questions can only be determined at a trial after a consideration of the evidence.

[24]
The matter has not been given a trial date although it seems to me it should be very close to being ready for trial.

[25]
There is no express explanation why the defendants’ pleading was in a form resulting in deemed admissions. It may be remarked the whole of the defendants’ pleading is diffuse, and is difficult to relate to the allegations of fact in the plaintiff’s pleading. It seems plain however that the defendants considered, wrongly, their pleading complied with the pleading rules. An opportunity existed in the face of the plaintiff’s application for judgment to further consider the matter and bring an application in similar term to that now before me. They chose rather to contend their further amended defence complied with the pleading rules.

Are there additional deemed admissions fatal to the defence of the first and second defendant?

[26]
The plaintiff’s further amended claim for $120,000:

as against the first defendant is:

for money had and received to the use and benefit of the plaintiff:

for damages or compensation pursuant to the Trade Practices Act 1974 (Cth);
equitable compensation

against the second defendant:

for damages or compensation pursuant to the Trade Practices Act 1974 (Cth).

[27]
Relevantly it was admitted in the pleadings:

that the first defendant was a company incorporated according to law, was the trustee of the BR Fisher Family Trust, was a corporation within the meaning of that term in the Trade Practices Act 1974 (Cth), was engaged in trade and commerce, the second defendant was a director and duly authorised agent of the first defendant;
that the plaintiff and first defendant in its capacity as trustee of the BR Fisher Family Trust, were parties to a business sale contract dated 1 November 2004 which was an agreement for sale of a business described as “marketing rights to sell listed products of registered builders” for $120,000;
that the first defendant was vendor and the plaintiff was purchaser;
that the plaintiff paid the first defendant $120,000;
that the business sale contract contained a special condition rendering it subject to and conditional on the plaintiff and the first defendant entering into a consultant agreement attached to the contract;
the plaintiff and first defendant executed the consultant agreement (the collateral agreement) which contained the following:

“Recitals

A. The company has a sales consultants agreement (the agreement) with inter alia Tamawood SEQ Franchise Pty Ltd ACN 097 179 121 (the franchisee);

B. The agreement allows the company on a non-exclusive basis to sell products of the franchisee;

C. The parties have agreed that the consultant shall on an non-exclusive basis sell products of the company pursuant to the agreement---”.

[28]
The basis of the plaintiff’s claim for $120,000 is that the plaintiff entered into the business sale contract with the first defendant for the purchase by the plaintiff of the business mentioned above for $120,000 induced by reliance upon representations, in particular the sales consultancy agreement in recital A of the collateral agreement, by the second defendant on behalf of the first defendant which were misleading, deceptive, likely to mislead, likely to deceive, made in breach of duties owed to the plaintiff by the second defendant as promoter of the plaintiff and a person in a fiduciary relationship with the plaintiff.

[29]
Paragraph 13 of the statement of claim pleaded that contrary to the representations by the second defendant on behalf of the first defendant, the first defendant did not have the benefit of the sales consultant agreement referred to in the collateral agreement.

[30]
Paragraph 13 of the statement of claim is denied in paragraph 24 of the defendants’ further amended defence. The direct explanation for the denial is that the allegations in paragraph 13 “are untrue and on the basis of the defence of the first and second defendants as pleaded in paragraphs 3 to 20 above”.

[31]
The denial puts in issue the truth of the assertion in paragraph 13 of the statement of claim. The contrary of the assertion is that the first defendant did have the benefit of the sales consultant agreement “as referred to in the collateral agreement” that is, a sales consultant agreement with Tamawood SEQ Franchise Pty Ltd.

[32]
When a reader wades through the volume of material in paragraphs 3 to 20 of the defence in an attempt to find a direct explanation for the defendant’s belief that the assertion in paragraph 13 is untrue, there are assertions that:

the first defendant at the time of making the contract and for many years previously had conducted the business of marketing and selling the listed products of registered builders including Dixon Homes, Tamawood Homes, Cut Price Homes, Remington Steel Homes, Tim Jensen Pty Ltd One Off Designs and entities associated with these builders;
the schedule to the consultant agreement refers to the marketing and sale of products of builders including Dixon Homes, Tamawood Homes, Cut Price Homes, Remington Steel Homes, Tim Jensen Pty Ltd One Off Designs and entities associated with these builders;
the first defendant did have agreements either oral or written or comprised by a course of conduct with builders including Dixon Homes, Tamawood Homes, Cut Price Homes, Remington Steel Homes, Tim Jensen Pty Ltd One Off Designs and entities associated with these builders;

There is also an admission (paragraph 12 of the defence) by the defendants in response to paragraphs 9B and 9C of the further amended statement of claim, that the first defendant represented to the plaintiff that it had a consultancy agreement with various builders including Tamawood SEQ Franchise Pty Ltd.

[33]
There is no direct explanation that I can detect about the defendant’s apparent belief that the allegation in paragraph 13 is untrue. The assertions I have identified in paragraphs 3 to 20 of the defence do not address the specific allegation in paragraph 13 that the first defendant did not have the benefit of a sales consultant agreement referred to in the collateral agreement, that is, a sales consultant agreement with Tamawood SEQ Franchise Pty Ltd. The closest the defence comes to addressing the allegation is in paragraph 10(f) of the defence, where it asserts the reference to Tamawood SEQ Franchise Pty Ltd in recital A of the consultant agreement is neither an essential or fundamental term of the contract or consultant agreement.

[34]
It follows that the first and second defendants are taken to have admitted the allegation in paragraph 13 of the statement of claim, that the first defendant did not have the benefit of the sales consultant agreement referred to in the collateral agreement, namely with Tamawood SEQ Franchise Pty Ltd. They must therefore seek to defend upon the assertion in their defence that the reference to Tamawood SEQ Franchise Pty Ltd in recital A of the consultant agreement is neither an essential or fundamental term of the contract or consultant agreement.

Should the defendants’ application succeed?

[35]
The admissions in issue in this application are deemed admissions. In Equuscorp Pty Ltd McKenzie J at paragraph 9, referring to Coopers Brewery Pty Ltd said “Rodgers CJ poses the question whether justice required leave to be given to withdraw the admissions. He also thought it legitimate to consider whether the admissions were made in error in a case where the admissions were express, not deemed. In a case of deemed admissions, the reason for the failure to dispute matters in the notice to admit facts would be one relevant factor but not necessarily decisive.”
[36]
It seems to me that on this occasion the defendant’s application to withdraw the deemed admissions should succeed and they should have leave to file a second further amended defence in terms of the draft, exhibit 1 to the affidavit of Christopher Robert Sutton filed 18 August 2010. The deemed admissions in question I think are likely a consequence of the drafting of a defence of the nature I earlier described. The proceeding generally appears to have meandered without a great deal of urgency on both sides since it was commenced in 2006, although there has been a deal of interlocutory exchanges which should have been unnecessary. There are matters in dispute about the deemed admissions sought to be withdrawn which are arguable. There does not seem to me to be any relevant prejudice to the plaintiff if leave is given. The matter in issue regarding the claim for $120,000 should be resolved at trial.

[37]
The application for judgment on the deemed admissions was not promptly brought by the plaintiff after the defendants’ defence to the amended statement of claim. Ultimately it was brought on 8 June 2010. It succeeded in its contention about the deemed admissions with the result that the present application by the defendants in now before the court.

[38]
The defendant’s application also sought orders that the plaintiff provide the particulars requested by a letter from the defendants’ solicitor to the plaintiff’s solicitor dated 10 August 2010. The letter requested further and better particulars of paragraphs 26(c), 27 and 29 of the plaintiff’s further amended statement of claim.

[39]
The plaintiff’s solicitor responded by letter on 16 August 2010 pointing out that consequent upon the court’s publication of its reasons on 5 August 2010, the parties were to be before the court again to make further submissions on 20 August 2010. He suggested that the matter should await the outcome of that further hearing. If the court gave leave to the defendants to withdraw the deemed admissions and further amend their defence then the plaintiff agreed to provide the further and better particulars. The defendants’ solicitor’s response was to serve a rule 444 letter regarding the plaintiff’s failure to provide the particulars requested.

[40]
It seems to me the plaintiff’s solicitor’s response was an eminently sensible one. There was no need to write and serve a rule 444 letter or to make the application to the court for an order. Apart from that it seems to me that for the most part the particulars sought are not proper requests for particulars.

Orders

[41]
I order the plaintiff’s application filed 8 June 2010, the subject of my reasons delivered 5 August 2010, be dismissed.

[42]
I order that the first and second defendants have leave to withdraw the deemed admissions identified in the reasons of the court in this proceeding, delivered on 5 August 2010.

[43]
I order that the first and second defendants have leave to file a second further amended defence of the first and second defendants in terms of exhibit 1 to the affidavit of Christopher Robert Sutton filed 18 August 2010.

[44]
I order the application by the first and second defendants for further and better particulars be dismissed.

Footnotes

[1] Exhibit AFH2 to the affidavit of Adrian Francis Hawkes filed 23 August 2010.

[2] House v the King (1936) 55 CLR 499; Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292.

[3] [2000] QCA 292.

[4] [1999] QSC 354; [2000] QCA 117.

[5] (1992) 26 NSWLR 738.

[6] [1999] QSC 354.

[7] [2004] QSC 275.

[8] (1884) 26 Ch D 700 at 710.

[9] (1997) 189 CLR 146 at 152-153.

[10] Coopers Brewery v Panfida Foods Ltd (1992) 26 NSWLR 738.

[11] Uniform Civil Procedure Rules 1999 rule 5(1).

Editorial Notes

Published Case Name:
Robielle Pty Ltd v Pilsack Pty Ltd, Barry Robert Fisher, AAA Accounting Pty Ltd and Rodney Somerville (No 2)
Shortened Case Name:
Robielle Pty Ltd v Pilsack Pty Ltd (No 2)
MNC:
[2010] QDC 339
Court:
QDC
Judge(s):
Dodds DCJ
Date:
03 Sep 2010

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Cassie v Bogdan	[2004] QSC 275	2 citations Jump To Cite 1 - [2004] QSC 275 Cite 2 - [2004] QSC 275
Coopers Brewery Ltd v Panfida Foods Ltd	View on:NSWLR(1992) 26 NSWLR 738	3 citations Jump To Cite 1 - (1992) 26 NSWLR 738 Cite 2 - (1992) 26 NSWLR 738 Cite 3 - (1992) 26 NSWLR 738
Cropper v Smith	(1884) 26 Ch D 700	1 citation Jump To Cite 1 - (1884) 26 Ch D 700
Equuscorp Pty Ltd v Anthony Orazio	[1999] QSC 354	3 citations Jump To Cite 1 - [1999] QSC 354 Cite 2 - [1999] QSC 354 Cite 3 - [1999] QSC 354
Equuscorp Pty Ltd v Orazio	[2000] QCA 117	2 citations Jump To Cite 1 - [2000] QCA 117 Cite 2 - [2000] QCA 117
House v The King	View on:JADE(1936) 55 CLR 499	2 citations Jump To Cite 1 - (1936) 55 CLR 499 Cite 2 - (1936) 55 CLR 499
Ridolfi v Rigato Farms Pty Ltd	[2001] 2 Qd R 455; [2000] QCA 292	3 citations Jump To Cite 1 - [2000] QCA 292 Cite 2 - [2000] QCA 292 Cite 3 - [2000] QCA 292
State of Queensland v J L Holdings Pty Limited	View on:JADE(1997) 189 CLR 146	2 citations Jump To Cite 1 - (1997) 189 CLR 146 Cite 2 - (1997) 189 CLR 146

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

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Robielle Pty Ltd v Pilsack Pty Ltd (No 2)[2010] QDC 339