Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd
[2009] QSC 390
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd[2009] QSC 390
- Add to List
Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd[2009] QSC 390
Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd[2009] QSC 390
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 4 December 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 August 2009 |
JUDGE: | Martin J |
ORDER: | 1. The plaintiffs are, by 18 December 2009, to give further particulars of the allegations at paragraphs 10 and 11 of the FASOC in accordance with paragraphs 3 and 5 of the defendants’ request for particulars dated 12 July 2007. 2. Paragraphs 30 – 33 are struck out. The plaintiffs have leave to replead by 18 December 2009. 3. Paragraph 39 is struck out. The plaintiffs have leave to replead by 18 December 2009. |
CATCHWORDS: | PRACTICE – PLEADING – STATEMENT OF CLAIM – STRIKE OUT - PARTICULARS - Where plaintiffs bring action against defendants – Where defendants bring an application for further and better particulars – Where defendants bring an application for the striking out of certain paragraphs of the FASOC – Whether the plaintiffs should be ordered to provide further particulars of matters pleaded - Whether certain paragraphs of the plaintiffs’ FASOC should be struck out. Uniform Civil Procedure Rules 1999 (Qld), r 155 Friend v Brooker (2009) 255 ALR 601 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 State of Western Australia v Bond Corporation Holdings Ltd (1990) 99 ALR 125 Street & Ors v Luna Park Sydney Pty Ltd & Ors [2006] NSWSC 533 |
COUNSEL: | D. Cooper SC with C. Wilson for the plaintiffs K. Barlow for the defendants |
SOLICITORS: | Tucker & Cowan Solicitors for the plaintiffs Attwood Marshall Lawyers for the defendants |
[1] This is an application by the defendants seeking further particulars of some paragraphs and to strike out other paragraphs of the Fourth Amended Statement of Claim (“FASOC”).
[2] The matter has been before the court on a number of occasions when other interlocutory relief has been sought. In Ross Cook and Brett Cook Pty Ltd v Bli Bli #1 & Anor [2009] QSC 300, I summarised the issues raised in the FASOC in the following way:
“[6]Bli Bli’s claim was filed in the Supreme Court on 14 June 2007. Pursuant to it, Bli Bli and Bli Bli #2 Pty Ltd (“Bli Bli #2”) sought declarations that:
a)a fiduciary relationship existed between Kimlin and PUGS and each of the plaintiffs,
b)Kimlin and PUGS breached fiduciary duties arising out of this relationship;
c)by reason of these breaches, RCBC holds one third of any benefits and advantages acquired by reason of it being knowingly concerned in the breaches of the fiduciary duties on constructive trust for the plaintiffs; and
d)RCBC holds one third of its interest in Lot 4, or in a portion of Lot 4 described in the statement of claim as the “JV Land,” on constructive trust for the plaintiffs.
[7]The essence of Bli Bli’s claim is that it was the assignee of an aliquot part-interest in an option to acquire Lot 4. The other interest holders in the option were Kimlin Pty Ltd (Mr Ross Cook’s company) (“Kimlin”) and PUGS Pty Ltd (Mr Brett Cook’s Company) (“PUGS”). It is alleged that RCBC was aware of the interest of Bli Bli, agreed to protect its interest and indicated that the option would be exercised to obtain the land. This was never done.
[8]Bli Bli alleges that the indication given by RCBC was dishonest, that the defendants (Kimlin, Mr Ross Cook, PUGS and Mr Brett Cook) intentionally did not exercise the option but instead incorporated Ross Cook and Brett Cook Pty Ltd, negotiated the sale of Lot 4 to RCBC and then dishonestly caused the title in Lot 4 to be transferred into RCBC’s name. It is alleged that the dishonesty accompanying this transfer is a “fraud” within the meaning of s 184(3)(b) of the Land Title Act 1994 (“the Act”).”
[3] The application by the defendants can conveniently be divided into three sections.
Paragraphs 10 and 11 of FASOC
[4] In paragraphs 10 and 11 of the FASOC, the plaintiffs plead that there was an oral agreement by R Cook, B Cook, and Ben Rubin to enter into a joint venture to acquire and develop the joint venture land. Paragraph 11 pleads that certain terms of the joint venture were also orally agreed between those persons.
[5] The defendants have sought, among other things, particulars of the conversations alleged to contain the agreements and seek with respect to each conversation: the date, the location, the mode, the name of each person representing Kimlin or Pugs, and the subject and effect of each such conversation.
[6] With respect to paragraph 11, the defendants seek the same particulars of each conversation.
[7] The plaintiffs have provided the following particulars of paragraph 10:
“2.As to paragraph 10 of the Statement of claim:-
(a)As regards the Co-Venturers’ oral agreement, the best particulars that the Plaintiffs can presently provide are that:-
(i)The conversation or conversations took place:-
(1)in or about December 2004 and/or January 2005, but before January 2005; and
(2)between Ben Christopher Rubin, and the Fourth Defendant and/or the Fifth Defendant; and
(ii)the cumulative subject and effect of the conversation or conversations was the:-
(1)proposal by Ben Christopher Rubin that the Fourth Defendant and the Fifth Defendant (or entities associated with them respectively) enter into a joint venture with him (or an entity associated with him) to develop, subdivide and sell Lot 4 or a part thereof as an industrial subdivision;
(2)agreement of the Fourth Defendant and the Fifth Defendant that entities associated with them, namely the First and Second Defendants respectively, would enter into the said joint venture with Rubin; and
(3)agreement between the respective parties of the terms pleaded in paragraph 11 of the Statement of Claim
(b)The JV Land is that part of Lot 4 marked ‘proposed Lot 3’ on the plan attached and marked ‘A’.”
[8] With respect to paragraph 11, the plaintiffs have provided the following particulars:
“3.As to paragraph 11 of the Statement of Claim, as regards the Co-Venturers' oral agreement of the terms of the Joint Venture, the best particulars that the Plaintiffs can presently provide are that:-
(a)the conversation or conversations took place:-
(i)in or about December 2004 and/or January 2005, but before 10 January 2005; and
(ii)between Ben Christopher Rubin, and the Fourth Defendant and/or the Fifth Defendant; and
(b)the cumulative subject and effect of the conversation or conversations was the agreement between the respective parties of the terms pleaded in sub-paragraphs 11(a) to (f) of the Statement of Claim.”
[9] The defendants complain that the particulars are inadequate in that they do not provide information about how many conversations there were, when they were, who were the parties to the conversations and what was the subject and effect of each conversation.
[10] The plaintiffs’ response is that, as they were not parties to the relevant conversations, they cannot give any further particulars and they rely upon the principle that the obligation of a party to supply particulars of an allegation is only to supply the best particulars that they can give: Street & Ors v Luna Park Sydney Pty Ltd & Ors [2006] NSWSC 533 at [15]. In that case, Brereton J said that the circumstance that “the facts are in the knowledge of the defendants is relevant in deciding the extent to which an allegation has to be particularised and the extent to which it is reasonable to defer the provision of further particulars until after discovery has been had”. In that case the provision of particulars was deferred until after discovery had been given. The plaintiffs in this case, though, do not seek to defer the provision of particulars. They say they have provided the best particulars that they can. There was no suggestion that anything more could be provided after disclosure.
[11] The plaintiffs also rely on the admission by the defendants of paragraph 10. That admission, though, was with respect to an earlier version of the statement of claim and, in my view, should not stand in the way of the defendants obtaining further particulars of the FASOC if they are otherwise entitled to them.
[12] The allegations in paragraphs 10 and 11 of the FASOC are central to the claim by the plaintiffs. The defendants are entitled to know what, it is said, gives rise to the joint venture upon which the pleading is based. The current set of particulars does not do that. If the plaintiffs cannot properly particularise this essential part of their claim, then it may be that other action needs to be taken by way of amendment.
[13] The defendants sought, in the alternative, that these particular paragraphs be struck from the FASOC. I do not think that it would be appropriate to do that at this stage. The plaintiffs should have one more opportunity to put their pleading in order and to provide proper particulars of the claim which they make. Should that not be possible then the defendants can take such further action as they see fit. I will order that the plaintiffs give further particulars of the allegations at paragraphs 10 and 11 of the FASOC in accordance with paragraphs 3 and 5 of the defendants’ request for particulars dated 12 July 2007.
Paragraphs 30, 31, 32, and 33
[14] The defendants seek an order striking these paragraphs out of the FASOC. These paragraphs plead that a fiduciary relationship existed among the first plaintiff or the second plaintiff or both and the first defendant, second defendant, R Cook and B Cook. It is then alleged that by reason of that fiduciary relationship each of the first and second defendants owed to the first plaintiff certain duties and, similarly, the first and second defendants owed those duties to the second plaintiff. The defendants rely upon the recent decision of the High Court of Australia in Friend v Brooker (2009) 255 ALR 601. In particular, the defendants rely on the court’s finding that equity does not impose fiduciary duties between the parties to a deliberate commercial decision to adopt a corporate structure in which they would owe duties, but to the corporation only as directors.
[15] The plaintiffs resist the application on the basis that whether or not there is a fiduciary relationship (and, if so, its scope) is a question which will be determined principally by the terms of the joint venture agreement, the nature of the relationship between the parties and the surrounding facts and circumstances: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 102.
[16] There may be grounds for pleading that a fiduciary relationship has arisen. However, the decision in Friend v Brooker militates against the manner in which the plaintiffs have pleaded the existence and scope of the duty in this case. I will order that the paragraphs 30 to 33 be struck out on the basis that the relationship pleaded cannot arise in the context of the pleading as it presently stands. I will, though, give leave to the plaintiffs to replead.
Paragraph 36
[17] Paragraph 36 refers to representations which are pleaded in paragraphs 25A and 25B. Paragraph 36 pleads that, insofar as those representations related to future matters:
(a) B Cook did not have reasonable grounds for making them, and
(b) They constituted misleading and deceptive conduct within the meaning of that term in s 52 of the Trade Practices Act 1974 by virtue of s 51A of that Act.
[18] The objection taken by the defendants to this part of the pleading is that the plaintiffs, having pleaded that B Cook did not have reasonable grounds for making the representations, must fully articulate why it is said that there was such an absence of reasonable grounds.
[19] The defendants complain that the pleading is unclear as to whether the plaintiffs are making a positive case that B Cook did not have reasonable grounds for making the representations or whether they are relying on s 51A of the Trade Practices Act and the reversal of onus of proof for which it provides.
[20] It was also argued by the defendants that none of the pleaded representations have any element of futurity.
[21] Paragraph 25, so far as is relevant to this part of the application, pleads:
“At the Meeting, B Cook orally represented to Ryder that:-
…
(b)the interests of Rubin in the joint venture had been that Rubin was entitled to one third of the profits of the joint venture, had a one third interest in the JV Land and the lease land, and upon sale of the JV Land was entitled to receive one third of the proceeds of the JV Land after costs (prior to the first assignment and the second assignment) and was entitled to one third of the profits derived from the lease land;
…
(f)the joint venture would proceed, as between the New Co-Venturers, and the first plaintiffs’ and second plaintiffs’ interests would be ‘looked after’.”
[22] It was submitted on behalf of the plaintiffs that the representation of a future matter was to be drawn from a combination of paragraph 25(b) and (f).
[23] A party which seeks to invoke s 51A of the Trade Practices Act should make clear that it is doing so. That duty is satisfied if the pleadings makes clear that the representor did not have reasonable grounds for making the representation and that it is misleading and deceptive because of that: State of Western Australia v Bond Corporation Holdings Ltd (1990) 99 ALR 125. That requirement has been met by the pleading in the FASOC.
[24] Further, from the submissions made by the plaintiff in this application, it is clear which of the representations in paragraph 25 are those said to be representations as to a future matter.
Paragraph 38
[25] Paragraph 38 pleads that the third defendant has received and retained all of the benefits and profits arising from the JV Land. Further particulars of that pleading have been sought. This is a claim which is obviously within the knowledge of the defendants and should be particularised in the light of disclosure. If no further particulars can be given then, in the ordinary course, the plaintiffs will be confined to their pleaded case.
Paragraph 39
[26] This paragraph pleads that the plaintiffs have suffered damage as a result of the matters pleaded earlier in the FASOC. The defendants have sought particulars of that allegation and assert that the plaintiffs have failed to comply with r 155 of the Uniform Civil Procedure Rules. The paragraph does not comply with that rule but the plaintiffs say that the defendants have not made full disclosure, thereby inhibiting a better particularised pleading.
[27] This trial should not proceed until there is compliance with r 155. If the plaintiffs cannot plead properly then they will have to amend the way in which they approach this issue. This paragraph is struck out. I give leave to replead.
Orders
[28] The plaintiffs are, by 18 December 2009, to give further particulars of the allegations at paragraphs 10 and 11 of the FASOC in accordance with paragraphs 3 and 5 of the defendants’ request for particulars dated 12 July 2007.
[29] Paragraphs 30 – 33 are struck out. The plaintiffs have leave to replead by 18 December 2009.
[30] Paragraph 39 is struck out. The plaintiffs have leave to replead by 18 December 2009.
[31] I will hear the parties on costs.