R.A.T. Nominees Pty Limited v Investment Traders Pty Limited. [1999] NSWSC 382

New South Wales Supreme Court CITATION : R.A.T. Nominees Pty Limited v Investment Traders Pty Limited. [1999] NSWSC 382 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1359/98 HEARING DATE(S) : 27 April 1999 JUDGMENT DATE : 27 April 1999

R.A.T Nominees Pty Limited (P) Investment Traders Pty Limited (D1) Registrar General (D2) ICA Mortgage & Finance Pty Limited (D3) Peter John Turnbull (D4) Robert Miles, Brad Hazzard and Mary Bova t/as Marks Griffiths Hazzard & Bova (D5) Peter John Turnbull (1st Cr-cl) PARTIES : ICA Mortgage & Finance Pty Limited (1st Cr-D) ICA Mortgage & Finance Pty Limited (2nd Cr-cl) R.A.T. Nominees Pty Limited (2nd Cr-D) Investment Traders Pty Limtied (3rd Cr-D) Gregory Hall (4th Cr-D) Richard Harold George (5th Cr-D) ICA Real Estate (Texas) Inc (6th Cr-D) Dartmouth Project Pty Limited (7th Cr-D)

JUDGMENT OF : Master McLaughlin

COUNSEL : R. Perrignon M. Foley (D3) SOLICITORS : A. Rath (4D) A Harpur (5D) CATCHWORDS : DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 27 April 1999

1359/98 R A T NOMINEES PTY LIMITED -v- INVESTMENT TRADERS PTY LIMITED & ORS JUDGMENT

1 MASTER: By Notice of Motion filed on 12 April 1999, the plaintiff, R A T Nominees Pty Limited, seeks, substantively, an order that the defence of the third defendant, ICA Mortgage and Finance Pty Limited, be struck out, pursuant to Part 15 rule 26 of the Supreme Court Rules; or, alternatively, that the third defendant provide the plaintiff with further and better particulars sought in a request dated 26 November 1998. 2 The basis of the first item of relief is that it is submitted that, in light of the response to a request for particulars dated 26 November 1998, the defence of the third defendant, in the words of subrule (1) of rule 26 in Part 15, has a tendency to cause prejudice, embarrassment or delay in the proceedings. 3 The defence of the third defendant was filed on 20 October 1998. The particulars, of that defence were sought by letter dated 26 November 1998. It is unnecessary to set forth the procedural history of the matter, especially in relation to directions concerning the provision of particulars since the request was originally made. However, by letter dated 28 March 1999, that is some four months after the request was originally made, the third defendant responded to that request. 4 It is submitted on behalf of the plaintiff that the responses to a number of the items of particulars sought are so inadequate that the plaintiff is entitled to seek, in the alternative, either that the defence be struck out, or that an order of the Court be made requiring the third defendant to provide the particulars sought. 5 It should, at the outset, be emphasised that the purpose of particulars of a pleading is to enable the opposing party to know the nature of the case to be presented against it and which the opposing party must meet, and to confine the case of the party pleading to the case presented in that pleading. It is not a sufficient response to a request for particulars for a party to say that the requesting party already knows the answers or has sufficient information to enable it to answer the request for itself. 6 In the instant case items 1, 2, 3, 4 and 5 relate to paragraph 5 of the defence. That paragraph refers to an arrangement that the third defendant had with an entity referred to therein as "ICA Real Estate (Texas) Inc". 7 The response made by the third defendant to items 1, 2, 3 and 5 is that those requests are not proper requests of the third defendant and that it is more appropriate for those requests to be made directly to ICA Real Estate (Texas) Inc. Since the third defendant has in its defence referred to an arrangement between itself and that entity, which (although it may subsequently have become a party to the proceedings as a cross-defendant) was not joined as a defendant by the plaintiff, it is obvious that the plaintiff is entitled to further and better particulars concerning the arrangement asserted by the third defendant to have come into existence between the third defendant and that entity. 8 Item 4 seeks further and better particulars of the alleged arrangement between the third defendant and that entity. There is a response to the query: "What were the terms of the arrangement?" It seems to me, however, that the response does not address itself to the request for particulars. It is for the third defendant, if it chooses to plead an arrangement between itself and some other entity, to provide the particulars sought concerning that arrangement. 9 Item 8 of the request for particulars relates to allegations contained in paragraph 10 of the defence. The relevant allegation is as follows:- The Third Defendant's [ sic ] says that between 19th December 1996 and 20th December 1996 the negotiations and discussions that subsequently lead [ sic ] to the parties entering into the Deed changed significantly. 10 It will be appreciated that the parties referred to in that pleading are, relevantly, the plaintiff and the third defendant. The response to the request for particulars concerning that allegation relates essentially to arrangements between the plaintiff and another entity, Dartmouth Project Pty Limited, which was not named as a defendant to the proceedings but has subsequently been joined as a cross-defendant. I consider that the third defendant has not adequately responded to the request for particulars contained in Item 8. 11 Item 9 relates to the allegation contained in paragraph 11 of the defence that:- The whole basis of the negotiations changed on or about 20th December 1998 [ sic , although apparently "1996" was intended] and the Deed properly reflects the agreement finally reduced to writing. 12 The essential response to that request for particulars contained in item 9 is to refer to the responses to items 8(a) and (b). I have already expressed my view concerning the adequacy of those responses. 13 Item 10 relates to paragraph 12 of the defence and to the allegation that:- The Plaintiff has wholly failed to perform its obligations pursuant to the Fairmont Condominium Contract of Sale (hereinafter referred to as the "Fairmont Condominium contract" and the Third Defendant craves leave to refer to the whole of that Contract as if it were fully set out herein). 14 The response to item 10 is that that is not a proper request of the third defendant and that it is more appropriate for such request to be made to ICA Real Estate (Texas) Inc directly. 15 The fact that the plaintiff may be aware of the existence of a contract of the nature of that referred to in paragraph 12 of the defence is not, of itself, an answer to the request for particulars. As I have already observed, the purpose of such particulars is to delimit the case for the party pleading and to enable the opposing party to know the case which it must meet. 16 I am satisfied that the responses of the third defendant to Items 1, 2, 3, 4, 5, 8, 9 and 10 in the letter of 26 November 1998 from Harris Lieberman Boyd, the solicitors for the plaintiff, to Foleys, the solicitors for the third defendant, are not adequate. 17 I do not, however, consider that it is appropriate at this stage that I should strike out the defence on account of the inadequacy of those particulars. I do, however, propose to make an order that the third defendant within a specified period furnish adequate particulars responding to those requests. I will hear the representatives of the parties on an appropriate period. 18 The Notice of Motion of the plaintiff filed on 12 April 1999 also seeks an order that the second cross-claim of the third defendant filed on 14 December 1998 be struck out, pursuant to Part 15 rule 26 of the Rules. By paragraph 1 of that second cross-claim the third defendant, as second cross-claimant, repeats its defences to the plaintiff's statement of claim and second further amended summons and first cross-claim. 19 At the outset it seems to me that the incorporation by reference of the defences to the statement of claim incorporates those very problems to which I have already referred in the earlier part of my judgment herein. The third defendant seeks leave to amend the second cross-claim without, as I understand it, definitely stating that it will avail itself of such leave. However, it seems to me that it is appropriate that I should grant that leave. In the light of further particulars to be provided by that cross-claimant, the situation concerning the form of the present second cross-claim or of any amendment thereto which might be filed should be reviewed. 20 (Mr Perrignon applied for costs. Mr Foley sought that costs to the plaintiff be costs in the cause.) 21 MASTER: I make the following orders:- (1) I order that the third defendant on or before 11 May 1999 provide adequate responses to items 1, 2, 3, 4, 5, 8, 9 and 10 in the letter of 26 November1998 from Harris Lieberman Boyd to Foleys. (2) I grant to the third defendant/second cross-claimant leave to file an amended cross-claim on or before 18May 1999. (3) I order that paragraph 3 of the Notice of Motion filed by the plaintiff on 12 April 1999 be stood over generally with liberty to restore to the Registrar's list on seven days notice. (4) I order that the third defendant pay the costs of the plaintiff of the aforesaid Notice of Motion to date. (5) I grant leave to the plaintiff to proceed forthwith to assessment of the foregoing costs. The various exhibits may be returned, gentlemen. 22 (Mr Perrignon sought that the matter be referred back to the Registrar.) 23 MASTER: For what purpose should it be referred back to the Registrar? It seems appropriate to me that it should not be referred back to the Registrar until the particulars are provided and any cross-claim is filed and then you will have liberty to apply to the Registrar. **********