Tycoon Holding Pty Ltd & Anor v Trencor Jetco Inc & Anor [1995] FCA 232

CATCHWORDS PRACTICE and PROCEDURE - motion for leave to amend a statement of claim - adding new claims against corporation outside jurisdiction - other claims modified CORPORATIONS - CONTRACTS - NEGLIGENCE - whether collateral contracts or tortious duties apply to a body not yet incorporated - pre-incorporation representations actions or statements later accepted or ratified by corporation PLEADING - whether pleadings disclose cause of action - embarrassing and prolix pleadings - effect of failure to plead damages adequately - permitting pleading when particulars or further amendment sufficient to clarify allegations being made DAMAGES - entitlement of company to damages incurred pre-incorporation - negligence and contractual measure of damages Trade Practices Act (Cth) 1974 ss 51A, 52, 53, 82 Fair Trading Act (WA) 1987 ss 4(2), 5 Hire Purchase Act (WA) 1959 Sale of Goods Act (WA) 1895 Hoyts Pty Ltd v Spencer [1919] 27 CLR 133 Hall v Nominal Defendant [1966] 117 CLR 423 Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] 136 CLR 529 Carr v Finance Corporation [1981] 147 CLR 246 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [1986] 162 CLR 340 T.C. Industrial Plant Pty Ltd v Roberts Queensland Pty Ltd [1963] 37 ALJR 289 Yamaji v Westpac Banking Corporation Ltd (No 2) [1993] 42 FCR 436 Heilbut, Symons & Co v Buckleton [1913] AC 30 TYCOON HOLDINGS PTY LTD & KANGARILLA PTY LTD v TRENCOR JETCO INC & MOLE ENGINEERING PTY LTD WAG 41 OF 1991 EINFELD J CANBERRA (heard in Perth) 5 APRIL 1995

IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY) No. WAG 41 of 1991 GENERAL DIVISION ) Between: TYCOON HOLDINGS PTY LTD First Applicant KANGARILLA PTY LTD Second Applicant And: TRENCOR JETCO INC First Respondent MOLE ENGINEERING PTY LTD Second Respondent REASONS FOR JUDGMENT EINFELD J CANBERRA 5 APRIL 1995 (heard in Perth) These proceedings arise out of the supply to the first applicant (Tycoon) by the first respondent, a United States corporation, (Jetco) of what is known as a trencher, a large earthmoving machine used for digging drainage channels on agricultural properties. The second applicant (Kangarilla) was the builder of such channels and became the operator of the trencher which was purchased by Tycoon in Western Australia from Jetco's Australian distributor, the second respondent (Mole). Tycoon hired the trencher to Kangarilla. I am indebted to the applicants for the general chronology of the main events giving rise to the proceedings which with minor emendations is attached to these reasons as a schedule.