Hi-Tech Telecom Pty Ltd v NEC Australia Pty Ltd (No 2) [2012] FCA 991

FEDERAL COURT OF AUSTRALIA

Hi-Tech Telecom Pty Ltd v NEC Australia Pty Ltd (No 2) [2012] FCA 991 Citation: Hi-Tech Telecom Pty Ltd v NEC Australia Pty Ltd (No 2) [2012] FCA 991

Parties: HI-TECH TELECOM PTY LTD (ACN 098 008 587) v NEC AUSTRALIA PTY LTD (ACN 001 217 527)

File number: NSD 336 of 2012

Judge: ROBERTSON J

Date of judgment: 7 September 2012

Catchwords: PRACTICE AND PROCEDURE – pleadings – application to strike out statement of claim or specified paragraphs of the statement of claim – further or alternative application that applicant provide supplementary further and better particulars – particulars in part provided by reference to numerous paragraphs of affidavit material

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M

Date of hearing: 5 September 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 48

Counsel for the Applicant: Mr GA Laughton SC

Solicitor for the Applicant: Axis Legal (Australia) Pty Ltd

Counsel for the Respondent: Mr DA Klempfner

Solicitor for the Respondent: Middletons

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 336 of 2012

BETWEEN: HI-TECH TELECOM PTY LTD (ACN 098 008 587)

Applicant

AND: NEC AUSTRALIA PTY LTD (ACN 001 217 527)

Respondent

JUDGE: ROBERTSON J DATE OF ORDER: 7 SEPTEMBER 2012 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Paragraph 10 of the applicant's statement of claim filed on 1 March 2012 be struck out. 2. By 28 September 2012, the applicant: (i) re-plead paragraph 10 and provide the usual particulars as sought in paragraph 15(c) of the respondent's request for further and better particulars filed on 30 April 2012; (ii) amend paragraphs 12, 18, 25, 30, 31, 32, 33 and 35; (iii) provide further and better answers to the requests in the following paragraphs of the respondent's request for further and better particulars filed on 30 April 2012: 3(b), 4(b), 5(b), 6(c) to 11(c), 12(b), 13(a), 13(g), 14(a), 14(b), 16(a)-(h), 17(a), 17(b), 18(a)-(c), 20(a)-(c), 21(a)-(d), 22(a)-(d), 24(a), 24(b), 26(b), 26(c), 27, 28 and 29-33; (iv) provide by way of particulars to paragraph 5 the end point for the enquiries and indications referred to in that paragraph; (v) provide by way of particulars to paragraph 8: (a) an explanation of what it is alleged constitutes the joint venture referred to in that paragraph; (b) the usual particulars, as defined in the respondent's request for further and better particulars filed on 30 April 2012, of the alleged representation or representations; (vi) by way of particulars to paragraph 11 inform the respondent: (a) whether the joint venture referred to in this paragraph is the same as the joint venture defined in paragraph 8 of the statement of claim; (b) how it is said that the representations alleged in paragraphs 6, 7 and 8 give rise to the contractual duties pleaded in this paragraph; (c) if the applicant contends that each of the duties pleaded are imposed by law then any facts matters and circumstances relied on for that conclusion should be specified; (vii) give the respondent by way of particulars to paragraph 17 the usual particulars as defined in the respondent's request for further and better particulars filed on 30 April 2012 of: (a) the request of the respondent; (b) the knowledge of the respondent; (c) the purposes referred to; (d) the reliance; and (e) the representations; (viii) inform the respondent by way of particulars to paragraph 30 as to the specific matters referred to in paragraphs 5 to 29 which are alleged to constitute a breach of contract; (ix) in relation to paragraph 34, provide to the respondent the basis upon which it is alleged that: (a) the respondent was a fiduciary; and (b) was under the obligations set out in paragraph 11.a.-11.h.; (x) in relation to paragraph 42: (a) identify to the respondent the misrepresentations referred to; (b) specify the facts, matters and circumstances relied on for the allegation that the respondent did not have reasonable grounds for making the representations; (xi) inform the respondent by way of particulars to paragraph 46 whether it is alleged that the respondent was also estopped from departing from the promises and representations pleaded in paragraph 6 of the statement of claim. 3. The respondent's interlocutory application filed on 29 August 2012 be otherwise dismissed. 4. By 26 October 2012, the respondent file and serve its defence to the statement of claim as amended. 5. By 30 November 2012, the respondent file and serve the affidavit evidence on which it intends to rely at trial. In the case of disputed conversations the respondent should file and serve proofs of the evidence proposed to be adduced at trial. 6. Each party bear its own costs of the interlocutory application filed on 29 August 2012. 7. The matter be listed for directions at 9.30am on 5 December 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 336 of 2012