Charlwood Industries Pty Limited & anor v Brent [2001] NSWSC 606

New South Wales Supreme Court

CITATION : Charlwood Industries Pty Limited & anor v Brent [2001] NSWSC 606 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13192/00 HEARING DATE(S) : Friday 13 July 2001 JUDGMENT DATE : 13 July 2001

PARTIES : Charlwood Home Improvements Pty Limited & Charlwood Industries Pty Limited v Nick Brent JUDGMENT OF : Michael Grove J at 1

COUNSEL : M. Lynch (Plaintiff) S. Hodges, solicitor (Defendant) SOLICITORS : Schrader & Associates (Plaintiff) Stephen Hodges (Defendant) CATCHWORDS : DEFAMATION - ASSOCIATED CORPORATIONS WITH SIMILAR NAMES - CAPACITY OF READER TO IDENTIFY BOTH IN PUBLICATION - IMPUTATION - "IN A DISHONEST DAY" TO BE UNDERSTOOD AS "DISPOSED TO CHEATING" DECISION : Orders Made

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 13 July 2001

13192/00 - CHARLWOOD INDUSTRIES PTY LIMITED & ANOR v NICK BRENT

JUDGMENT

1 HIS HONOUR: Two matters have arisen for argument. The first relates to the identity of the plaintiffs and the second to one of the imputations which has been pleaded in respect of each of the two plaintiffs. 2 The essence of the complaint concerning the plaintiffs is that the matter complained of adverted to what might be described as the disappointment of the defendant in relation to certain work carried out by way of extension of his home. It is contended that the corporation identified as the one which actually did that work is the only one in respect of whom defamatory imputations could arise out of the matter complained of. 3 The publication seems to make undistinguished reference between what is called Charlwood Homes and Charlwood Industries. In the reproduction of a guarantee there is a description of Charlwood Industries Pty Limited. The two plaintiffs are companies respectively entitled Charlwood Home Improvements Pty Limited and Charlwood Industries Pty Limited. 4 The plaintiffs argue that the publication is capable of defaming each of them. To the contrary the defendant argues that an ordinary reasonable reader would understand that the only company being referred to was the one with whom the defendant contracted. 5 The ordinary reasonable reader would I apprehend, be well aware that there are numerous corporate structures whereby operations are conducted by various arms bearing similar names. I am unpersuaded that it is not open to a tribunal to find that the publication defamed more than one of such entities. 6 Application was made that I either put the plaintiff to election in the sense that only one of the plaintiffs could sue or otherwise make orders having effect so as to bind the plaintiff to suing essentially on behalf of one of the plaintiffs namely the party with whom the defendant contracted. As I have said, I do not regard a case for such order or direction as made out. 7 The second matter of complaint which was listed for argument related to an imputation said to arise in the same terms concerning each of the plaintiffs. That imputation is that the matter complained of conveyed that each plaintiff operates a business of home renovations in a dishonest way. It was pointed out that another imputation said to arise in common in respect of each of the plaintiffs was expressed in terms that the respective plaintiffs lie to its customers. 8 As I understand it, I was invited to find those imputations did not differ in substance. I am of the view that there is a difference in substance in that lying to customers and operating a business in a dishonest way are not necessarily synonymous. 9 The principal focus of the argument of the defendant was that the inclusion in the pleaded imputation of the phrase "in a dishonest way" was ambiguous in that it would be open to multiple interpretations and applications. I observe that in a written submission it was put that such multiple interpretations and applications would be open "according to the contract". It is not clear to me why that qualification should be of any relevance. 10 The plaintiffs accept and have confirmed in submissions that the meaning upon which they rely as conveyed by the phrase which I have expressed is that "in a dishonest way" is to be understood as "disposed to cheating". It seems to me that so understood the imputation is appropriately pleaded and capable of arising from the publication of the matter complained of. In order to avoid any possible ambiguity which I have said I am unpersuaded exists, the plaintiffs should be limited to that expressed interpretation of the phrase. 11 Accordingly, I decline to give any direction in relation to the identity of the plaintiffs. I decline to strike out either of imputations 3 (b) or 4 (b) in the statement of claim and I direct that at the trial under section 7A the plaintiffs be limited to arguing that the expression in those imputations "in a dishonest way" is to be construed as meaning "disposed to cheating". 12 The defendant is ordered to pay the plaintiffs costs of the hearing today. The defendant is directed to file and appropriate defence to matters to be tried pursuant to section 7A within 28 days of today. The matter is referred to a call-up list for the purpose of the allocation of a date of such hearing. **********