Hill v Gleeson[2023] QDC 227

DISTRICT COURT OF QUEENSLAND

1. Introduction

1. [1]
   Cross applications, respectively relating to the pleadings in this matter, came before this Court on 24 November 2023. Those pleadings are discussed in necessary detail below and they relate to the following claims for relief, as set out in the Amended Claim filed on 14 July 2023:

3. “1.
   From the First Defendant and Second Defendant the sum of $115,000.00 for breach of contract; and

3. 2.
   From the First Defendant and Second Defendant the sum of $38,000.00 for breach of contract to pay holding income of $500.00 per week from 30 August 2021

3. 3.
   Further or in the alternative, a declaration that the balance of the Funds advanced by the Plaintiff to the Defendants is held on constructive trust for the Plaintiff;

3. 4.
   Further or in the alternative, a declaration that the Defendants are liable to account to the Plaintiff as a constructive trustee.

3. 5.
   Further or in the alternative, damages under s 236 of the Australian Consumer Law;

3. 6.
   Interest pursuant to section 58 of the Civil Proceedings Act 2011 (QLD);

3. 7.
   Costs”

2. [2]
   The earlier made application, filed by the plaintiff on 26 October 2023, sought summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and alternatively that most of the amended defence of the defendants (being paragraphs 4 through to 35)^[1] be struck out pursuant to UCPR 171. As matters transpired and in the context of the affidavits of the parties prepared and filed in respect of it, the application for summary judgment is not pursued, in the sense of some acknowledgment that there are identified to be some triable issues in respect of the plaintiff’s claim.
3. [3]
   The application filed by the defendants on 20 November 2023, seeks that most of the Amended Statement of Claim (“ASOC”), filed 19 June 2023, be struck out or alternatively, that the plaintiff deliver further and better particulars in respect of the impugned pleadings. From the materials placed before the Court on these applications, it may be discerned that there has, from an early stage of these proceedings, been issue raised by the legal representatives of the defendants in respect of the adequacy of the pleading of the plaintiff’s claims against the defendants. 
4. [4]
   However, it is only by this cross-application that the defendants have sought remedy from this Court in respect of these complaints, as they now relate to the ASOC.  It is to be noted that leaving aside any question as to costs, it became clear that this is the substantial issue to be now determined and so that appropriate consequential orders or directions might be made, to allow for the completion of appropriate pleadings in this matter. That is, the defendants did not attempt to defend the form of pleading of largely non-admissions in the amended defence and effectively conceded that upon the determination of their application, there would need to be a further pleading of their defence, whether in response to a further ASOC or to the existing ASOC.
5. [5]
   In this respect, the defendants did not seek to engage with the particular criticisms of the plaintiff as to the mode of pleading of non-admissions in the amended defence, particularly as to lack of compliance with UCPR 166(4).  As was the contention for the plaintiff, and as is demonstrated by the evidence provided by the defendants in respect of the summary judgment application, it may be expected that contrary to a commonly adopted response in the amended defence, there are allegations as to which the defendants do not “remain uncertain as to the truth or falsity of [them]” and which are not “peculiarly within the knowledge of the plaintiff”, so as to prevent a pleading by way of denial or admission, at least by the first defendant.
6. [6]
   Accordingly, any direction of particular focus upon the application to strike out parts of the ASOC should not be regarded as detracting from some apparent force in the plaintiff’s arguments that the defendants’ pleadings may, at least in the respects which have been noted, be an inadequate response. Although the defendants’ position is also complicated by associated assertions as to lack of provision of particulars as to some of the allegations in the ASOC and assertions of bases to have parts of that pleading struck out, such an approach not only does not provide any direct explanation for the party’s belief that the allegation is untrue and cannot be admitted, in order to avoid the effect of UCPR 166(5), but can only be a viable response pending the seeking of some remedy so that the defendant can plead. Hence the need to now focus upon the complaints as to striking out parts of the ASOC.
7. [7]
   Before turning to the particular criticisms made of the ASOC, it is convenient to note that, from the available materials, the dispute between the parties arises from arrangements discussed between friends or associates, as to an opportunity to invest in the purchase of a particular property at Beerwah, with at least a representation made as to an expected rate of return on that investment.  The plaintiff’s position is broadly that:^[2]

   1. through communications in June and July 2021, a 25 per cent interest in a unit trust for the purchase of a property, was offered for $120,000, with “ongoing holding income”;
   2. on 15 June 2021, it was asserted that “I guess as an assurance to both of you, if down the line (next 6-12weeks) it was not playing out as projected then K and I would be prepared to buy your units in the property trust and you get your money back” and on 29 June 2021 there was a similar oral assertion;
   3. on 29 and 30 June 2021, it was represented that there would be a return on the investment, including that there would be a “healthy secure cash flow coming in instantly on your funds ($500 per week on $125k)”;
   4. this was accepted by the payment of that sum, in two advances of $60,000 (on 5 July and 30 August 2021) to a nominated bank account;
   5. the identified property was not purchased; and
   6. in response to the plaintiff’s request for return of $120,000, on 21 November 2021, there was a response from the first defendant, on 12 July 2022, stating “I will not let you down and you will get 100% of the committed funds back”, with a repayment of $5,000 occurring on 11 October 2022, accompanied by an assertion that “I’ve still not resolved invoicing issues which is now impacting our cash flow but that should be sorted out by the end of the month so hopefully a further increased amount can come through then”.

Applicable principles

8. [8]
   Understandably, in the outlined circumstances, the response for the plaintiff in defence of the pleadings in the ASOC refers to the following observations made in Virgtel Limited v Zabusky,^[3] after notation, there, of some of the requirements of UCPR 149 and 150 and that pleadings “are not merely formal, nor purely formulaic, documents”:

3. “[14]
   The matters of form mandated by these rules need, however, to be applied for the purpose of ensuring that the pleadings fulfil their functions. To approach pleadings otherwise would ignore the fundamental principles on which the UCPR are based:

3. - the purpose of the Rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense – Rule 5(1);

3. - accordingly, the Rules are to be applied by the courts with the objective of avoiding, inter alia, undue technicality and facilitating the purpose of the Rules – Rule 5(2).

3. [15]
   Whilst it is appropriate and necessary, therefore, to keep the functions of pleadings firmly in mind when considering their adequacy in a particular case, that must be done in a reasonable, realistic and pragmatic way. Perfection in pleading practice is a salutary aspiration, but is not an end in itself. Similarly, to the extent that pleadings are a tool to assist in facilitating ‘the just and expeditious resolution of the real issues in civil proceedings’, pleadings are an undoubtedly important, but not the exclusive, means to that end. As Millhouse J said in the Full Court of the Supreme Court of South Australia:

3. ‘The day has well passed when decisions are based on the state of the pleadings, irrespective of the facts or justice.’

3. [16]
   These considerations are, in my opinion, also relevant when a judge is called on to strike out a pleading or part of a pleading under Rule 171, particularly if it is contended that the offending pleading ‘has a tendency to prejudice or delay the fair trial of the proceeding’ – Rule 171(1)(b). This is the concept used in relation to pleadings which it is said do not state the allegations clearly against the opposing party such that the opponent is left in doubt about what is alleged. It has long been held that the power to strike out is not mandatory but permissive, and confers a discretionary exercise based on the quality and surrounding circumstances of the offending pleading, including, I might add, due regard to the function of the pleadings and appropriate observance of the fundamental principles set out in Rule 5.” (citations omitted)

8. These observations were made in the context of notation of the function of pleadings,^[4] as follows:

3. “[7]
   Under the post-Judicature Act adversarial system of civil litigation which is now regulated in this State by the Uniform Civil Procedure Rules, pleadings identify the dispute or disputes between the parties on which the Court is called to adjudicate. An integer of that process of identification is that ‘the function of pleadings is to state with sufficient clarity the case that must be met’. Brennan J (as he then was) commenced his judgment in Banque Commerciale SA en Liquidation v Arkhil Holdings by citing the following statement of Jessel MR in Thorp v Holdsworth about the object of pleadings:

3. ‘The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules of Order XIX. was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.’

3. [8]
   The term ‘issue’ in this context does not mean merely a dispute about facts; rather, an ‘issue’, adjudication of which may involve determination of disputed facts, is:

3. ‘that which, if decided in favour of the plaintiff, will itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.’

3. [9]
   After quoting this passage, McPherson J (as he then was), in In R v The Judges of the District Court Holden at Brisbane, ex parte Kruger Enterprises said :

3. ‘Under the modern system of pleading the issues are, or ought to be, ascertainable from the pleadings which allege only the ultimate facts selected by reference to principles of law giving rise to the right of relief claimed, or the defence relied upon.’

3. [10]
   The corollaries to, and consequences of, the definition of the issues in dispute between the parties through the pleadings include that:

3. (a)
   The parties are (or should be) aware of the case which each is to meet;

3. (b)
   The ambit of disclosure is limited to those documents ‘directly relevant to an allegation in issue in the pleadings’;

3. (c)
   The identified issues determine the allocation of the burden of proof in respect of those issues at trial, with each party thereby necessarily informed of the matters it must prove in its case;

3. (d)
   A matrix is provided for the determination of the relevance (or otherwise) of evidence proposed to be led at trial;

3. (e)
   The judge is informed of the issues on which adjudication is required.

3. [11]
   Points (b), (c) and (d) have obvious costs and efficiency ramifications for parties to litigation.” (citations omitted)

9. [9]
   Reference is also made to the following observations in Equititrust Limited v Tucker (No 2),^[5] after an earlier notation that the starting point for the principles to be applied in an application to strike out pleadings is UCPR 5:^[6]

3. [13]
   Where the application to strike out is on the basis of deficiency in the pleading, which may be remedied by re-pleading, the particularly cautious approach warranted in cases of summary dismissal does not apply. A pleading may be deficient, and liable to be struck out (for example on the ground that it has a tendency to prejudice or delay the fair trial of the proceeding) because it fails to fulfil the function of a pleading, which is to identify the issues which require the court’s attention and determination, provide a structure for the proceeding by providing the framework for disclosure and admissibility of evidence at trial, and to ensure a fair trial by giving the other parties fair notice of the case they must meet. The function of a pleading is discharged ‘when the case is presented with reasonable clearness’. Conversely, a pleading will be deficient if it is ‘ambiguous, vague or too general’, such that the other party does not know what is alleged against them.” (citations omitted)

9. Following that, in Equititrust Limited, it was further observed that:

3. [14]
   A pleading must contain a statement of all the material facts (that is, the facts necessary for the purpose of formulating a complete cause of action) relied upon (r 149(1)(b)). Particulars are not meant to be used to fill material gaps in a pleading. They serve a different purpose, which is “to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet”; although in practice the distinction may be difficult to discern.

3. [15]
   Importantly, though, ‘pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation’. As the Full Court of the Federal Court (Greenwood, McKerracher and Reeves JJ) observed in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13], for these reasons ‘the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings’.” (citations omitted)

10. [10]
    For the defendant, reference is made to similar statements of principle,^[7] including the following observations in Robert Bax and Associates v Cavenham Pty Ltd:^[8]

3. “[16]
   Rule 171 closely resembles the language of former O 22 r 32 Rules of the Supreme Court 1991 (Qld) which enabled a judge to strike out or amend any matter in the pleading which tended “to prejudice, embarrass, or delay, the fair trial of the action”. The word “embarrass” has not been retained. Nonetheless any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than “embarrass” the opposite party.”

Discussion

11. [11]
    As has been noted, the context for the claims made in this matter involves the necessary implications of lack of precision in the making of an investment arrangement between associates and the further complication of any agreement emerging from a sequence of partly written and partly oral exchanges. However, such considerations do not serve to lessen, but rather emphasise, the requirements for some clarity and particularity in expressing the causes of action warranting the plaintiff’s claims for relief from the Court.
12. [12]
    Accordingly, and as will be seen, the essential problems which are identified lie in the identification of the material facts necessary to formulate complete causes of action and to thereby inform the defendants for their response and in order to provide for a fair trial of the claim, if that is ultimately necessary.
13. [13]
    A substantial point made for the second defendant, in particular, is as to the absence of pleading of the material facts upon which her liability to the plaintiff is to be established. Justifiably, there is criticism directed at paragraphs 4 and 6 of the ASOC, which, as amended, read:

3. “4.
   On or about early to mid June 2021 the First Defendant and the Second Defendant approached the Plaintiff both in person verbally, and by e-mails from the First Defendant to the Plaintiff, and offered the Plaintiff the opportunity to invest in a property investment (“the Investment”).

3. PARTICULARS

3. a.
   Email from the First Defendant to the Plaintiff dated 11 June 2021;

3. b.
   Meeting between the Plaintiff, the First Defendant and the Second Defendant on 12 June 2021 at 6.00pm at Rangoli Indian restaurant, Shop 3, Buderim Shopping Centre, 7 Lindsay Road, Buderim in the state of Queensland;

3. c.
   Email from the First Defendant to the Plaintiff dated 15 June 2021;

3. d.
   Meeting between the Plaintiff and the First Defendant and the Second Defendant on 29 June 2021 at 11.30am at the residence of the First Defendant and the Second Defendant being 110 Laxton Road, Palmview in the state of Queensland;

3. e.
   Email from the First Defendant to the Plaintiff dated 30 June 2021;

3. f.
   Email from the First Defendant to the Plaintiff dated 5 July 2021.

3. …

3. 6.
   The offer in paragraph 4 above was accepted by the Plaintiff and the agreed terms of the investment were:

3. That the First Defendant and Second Defendant would cause the purchase of the Property in late June 2021;

3. a.
   That four (4) parties would each invest $120,000.00 for the purchase of the Property which would result in a 65% loan to value ratio;

3. b.
   That the Settlement Date of the Property would be 60 days from the purchase contract date;

3. c.
   That the Funds would need to be paid within that 60 days;

3. d.
   That the Property would be purchased utilising a Unit Trust;

3. e.
   That the Plaintiff would be provided with paperwork and unit trust transfers following the payment of the Funds or upon approval processes advancing favourably;

3. f.
   That the Property would provide ongoing holding income for the parties which would provide instant cashflow to the Plaintiff of $500 per week;

3. h.
   That if within 6 to 12 months of the purchase of the Property the investment was not working out then the First Defendant and Second Defendant would buy the Plaintiff’s interest in the Property and/or refund the Funds;

3. i.
   That the Plaintiff needed to deposit the Funds to a bank account titled “ADKA INVESTMENTS BSB:014512 Acc:411296598” (“the Bank Account”)

3. PARTICULARS

3. a.
   Email from the First Defendant to the Plaintiff dated 11 June 2021;

3. b.
   Meeting between the Plaintiff, the First Defendant and the Second Defendant on 12 June 2021 at 6.00pm at Rangoli Indian restaurant, Shop 3, Buderim Shopping Centre, 7 Lindsay Road, Buderim in the state of Queensland;

3. c.
   Email from the First Defendant to the Plaintiff dated 15 June 2021;

3. d.
   Meeting between the Plaintiff and the First Defendant and the Second Defendant on 29 June 2021 at 11.30am at the residence of the First Defendant and the Second Defendant being 110 Laxton Road, Palmview in the State of Queensland;

3. e.
   Email from the First Defendant to the Plaintiff dated 30 June 2021;

3. f.
   Email from the First Defendant to the Plaintiff dated 5 July 2021.

The self-evident difficulty is in discerning any material fact upon which it is contended that the second defendant “approached the Plaintiff both in person verbally, and by e-mail from the First Defendant to the Plaintiff” and so as to offer “the opportunity to invest in a property investment”. The contents of the emails identified under the heading “Particulars” are of course known but they are strictly evidence. More problematically, there is nothing pleaded by way of material fact arising out of the meetings at which the second defendant is alleged to have been present and particularly as to how the second defendant may have made any relevant offer to the plaintiff or be liable for any such offer which was communicated by the second defendant.

14. [14]
    Further, the absence of the pleading of any material facts in connection with the meetings referred to in sub-paragraphs (b) and (d), is also problematic in respect of the allegations made against the first defendant.
15. [15]
    It is also contended that a similar difficulty arises in respect of pleading the liability of the second defendant in respect of the claim for damages pursuant to the Australian Consumer Law (“ACL”).  That contention is expressed in terms of absence of any pleading that the “First Defendant was appointed as the agent of the Second Defendant and/or that the First Defendant had the authority to bind the Second Defendant”.  However that tends to overlook the pleading in paragraph 33, on the assumption that the contention therein that the “Second Defendant was knowingly involved in the contraventions of the ACL pleaded herein committed by the First Defendant”, is intended to be a reference to the concept of “being knowingly concerned in” a contravention of the ACL, which is provided as a form of accessorial liability in s 224(1)(e) of the ACL and adopted for the purposes of an action for damages, pursuant to s 236 of the ACL, by the statement in s 236(1) of ability to recover damages against “any person involved in the contravention” and the definition in s 2 of the term “involved”, as including the concept of “being directly or indirectly, knowingly concerned in or party to, the contravention”. 
16. [16]
    It is convenient to then move to some more specific issues raised by the defendant.  Leaving aside an incidental and obvious point that the reference to sub-paragraph 24(b), is to a non-existent part of the ASOC, the defendant contends that the following paragraphs do not comply with UCPR 149(1)(b) “in that they merely plead bare assertions”:

3. “31.
   Each of the representations pleaded in paragraphs 24a., 24b., 26a., 26b., 28a., 28, 30a. and 30b. (‘the Representations’) was made in trade or commerce.

3. 32.
   Each of the Representations was misleading or deceptive for the purposes of s 18 of the Australian Consumer Law (‘the ACL’).

3. 33.
   Further or alternatively, the Second Defendant was knowingly involved in the contraventions of the ACL pleaded herein committed by the First Defendant in so far as the Second Defendant was at all material times aware of the misleading or deceptive nature of each of the Representations and intended to participate in the misleading or deceptive Representations.”

17. [17]
    The reference to UCPR 149(1)(b), indicates that it is the absence of the pleading of the material facts upon which the assertions are premised, which is the suggested vice; as must be accepted for the following reasons:

3. (a)
   Whilst the assertion that each of the identified representations in paragraph 31, “was made in trade or commerce” engages a term used in s 18 of the ACL, as a limitation upon the extent of the application of the proscription provided, it is only a defined term in s 2 of the ACL, to the following extent:

3. “trade or commerce means:

3. (a)
   trade or commerce within Australia;  or

3. (b)
   trade or commerce between Australia and places outside of Australia;

3. and includes any business or professional activity (whether or not carried on for profit).”

3. As explained in Concrete Constructions (NSW) Pty Ltd v Nelson,^[9] the concept “trade or commerce” requires determination as to whether the activities or transactions in the course of which any relevant misrepresentation was made, of their nature, bear a trading or commercial character.  Accordingly and apart from identification of those activities or transactions from which such a conclusion is to be drawn, there would appear to be nothing more required to identify the relevant issue for determination.  Whilst it may be inferred that the relevant activities or transaction is that which is identified earlier in the pleading in respect of the allegations as to the formation in breach of contract, this should be made clear, including by identification of the particular aspects of those interactions which give them the necessary trading or commercial characteristic; 

3. (b)
   The complaint in respect of paragraph 32 is clear.  The basis upon which it is contended that each alleged representation was misleading or deceptive should be pleaded.  That is, in pleading the material facts providing the basis for the contention that there has been a misleading or deceptive representation, within the meaning of s 18 of the ACL,^[10] including in identification of any extent to which there is reliance upon any representation with respect to future matters and any engagement of s 4 of the ACL, by identification of the material facts upon which s 4 is so engaged;^[11]  and

3. (c)
   In addition to what has already been observed in respect of what appears to be reliance upon the concepts of accessorial liability under the ACL, in respect of paragraph 33, and whilst it is broadly asserted that the second defendant was aware of the misleading and deceptive nature of the representations and “intended to participate in the misleading or deceptive Representation”.  There is an absence of pleading of material facts as to the basis for such conclusions as to the state of mind of the second defendant. More particularly, there is an absence of what has been recognised as necessity to identify the act(s) of the second defendant, such as to show “practical connection” between her and the contravention(s).^[12]

18. [18]
    As is also correctly contended for the defendants, each of the pleadings at paragraphs 19 and 35 fail to comply with the requirements of UCPR 155(2), in simply pleading, respectively in relation to the claims for damages for breach of contract and for breach of the ACL, that “the plaintiff has suffered loss and damage”, without more.
19. [19]
    The difficulty in respect of paragraph 35 is complete, in the sense that there is simply nothing to explain the basis of the claim for damages for breach of the ACL or indeed what damage or loss is claimed in respect of any of the alleged misrepresentations.
20. [20]
    The problem as it relates to paragraph 19 is further exemplified by noting some other more specific complaints raised by the defendants and the plaintiff’s response upon the hearing of these applications.  First it may be noted that paragraphs 18 and 19, as they are directed at pleading the plaintiff’s loss and damage for breach of contract, state only that:

3. “18.
   As at the date of this claim, the First Defendant and the Second Defendant have not refunded the Plaintiff the balance of the $115,000.00 of the Funds.

3. 19.
   In the premises, the First and Second Defendants have breached the terms of the Investment and the Plaintiff has suffered loss and damage.”

Reference to the prayer for relief, discloses that the plaintiff is seeking both “the sum of $115,000 for breach of contract” and “the sum of $38,000 for breach of contract to pay holding income of $500 per week from August 2021”.

21. [21]
    However, there is nothing in the pleading to explain the exact circumstances in which the sum of $38,000 in damages was suffered and whether it is claimed as an alternative to or in addition to the claim for the refund of the balance of the consideration provided by the plaintiff.  Further and as contended for the defendants, there is an apparent inconsistency, to the extent that the basis of any such claim may lie in the term pleaded at paragraph 6(i) of the ASOC, which is expressed in terms of being dependent or conditional upon the purchase of the Property, which is otherwise pleaded, at paragraph 8, as having not occurred.  It may also be noted that to the extent that this pleaded term is drawn from the email dated 15 June 2021, it is also the subject of identification as a misleading or deceptive representation for the purpose of the claim made pursuant to the ACL; and there quoted in the following terms:

“I guess as an assurance to you both, if down the line (6-12 months) it was not playing out as projected then K and I would be prepared to buy your units in the property trust and you get your money back.”^[13]

Similarly, it is to be noted that the term pleaded at paragraph 6(g) of the ASOC, is in terms:

“That the Property would provide ongoing holding income for the parties which would provide instant cashflow to the Plaintiff of $500 per week.”

22. [22]
    A response for the plaintiff on this hearing, was to revert to the contention that the primary breach of contract was in respect of the failure to “cause the purchase of the property in late June 2021”.^[14]  However, that contention does not immediately assist, in respect of:

    1. explanation of any circumstances in which the plaintiff claims any loss of “holding income”; and
    2. as far as it relates to what appears to be a contention of failure of consideration, how that entitles the plaintiff to the return of the balance of the funds advanced, whether in reference to what appears to be pleaded as an acknowledgment of indebtedness, at paragraph 15 of the ASOC, or otherwise. 
23. [23]
    Therefore, what must necessarily be concluded is that both paragraphs 18 and 19, as well as 35 of the ASOC, are deficient in adequately meeting the requirements of UCPR 155 and most particularly in explanation of the “exact circumstances in which the loss and damage was suffered” and “the basis on which the amount claimed has been worked out or estimated”.
24. [24]
    The further complaint of the defendants, as it relates to the cause of action based in constructive trust, is misconceived.  The contention as it related to paragraphs 20-22 of the ASOC, in support of the claim for relief for “declaration that the balance of the Funds advanced by the Plaintiff to the Defendants is held on constructive trust for the Plaintiff”, is that this is inconsistent with the following pleading, at 6(j):

“That the Plaintiff needed to deposit the Funds to a bank account titled ‘ADKA INVESTMENTS BSB:014512 Acc: 411296598’ (‘the Bank Account’)”

25. [25]
    The contention and particularly as it proceeded to suggest a need to join “ADKA Investments” as a party, is entirely misconceived:

    1. the express reference in paragraph 6(j) is to “a bank account” so titled,^[15] and
    2. the pleading at paragraph 20(a) is as to the parties’ intention being that “the funds would be received by the First and Second Defendants into their nominated bank account.

Conclusion

26. [26]
    For these reasons, it has been established that paragraphs 4, 6, 18, 19 and 35 of the ASOC, should be struck out, due to those present pleadings having a tendency to prejudice or delay the fair trial of this proceeding, in terms of the absence of pleading of material facts in support of the generally pleaded contentions.
27. [27]
    As earlier noted, the complete inappropriateness of the responses in the amended defence, including in respect of but not limited to, those parts of the ASOC which remain, is such as to also warrant that most of the paragraphs from 4-35 of the amended defence be struck out, as disclosing no reasonable cause of defence and/or tending to prejudice or delay the fair trial of this proceeding.
28. [28]
    Accordingly, there will be orders pursuant to UCPR 171, that:

1. Paragraphs 4, 6, 18, 19, 31, 32, 33 and 35 of the Amended Statement of Claim, filed 19 June 2023 are struck out.
2. Paragraphs 4-8, 10-13 and 17-35 of the amended defence, filed 20 July 2023,^[16] are struck out.

Otherwise, the parties will have the opportunity to make further submissions as to the further orders for the purpose of repleading and as to costs.