20 January 2020

International Cases

Technip Oceania pty Ltd v. Cutmere Pty Ltd




A statement of claim must state the material facts to support the claim for relief, but not the evidence by which those facts are to be proved

In present case, on 20 December 2019, the application filed by the Defendant, Cutmere Pty Ltd, to strike out part of the statement of claim. The application was filed, by chamber summons, on 16 October 2019. Two paragraphs of the statement of claim were challenged on the grounds that, they disclose no reasonable cause of action, alternatively, may prejudice, embarrass or delay the fair trial of the action.

The Plaintiff, Technip Oceania Pty Ltd, claims damages for breach of a Lease, alternatively for misleading or deceptive conduct, alternatively for restitution of sums paid under the Lease which it pleads were an unjust enrichment of the lessor, Cutmere. It is not in dispute that, Technip Oceania and Cutmere were parties to a Lease, dated 6 July 2012, and a Deed of Variation, dated 13 April 2016. The Lease and the Deed of Variation were expressed to be entered into by Cutmere only in its capacity as trustee of the 333 Trust, and Cutmere has now pleaded that in its defence.

On an application to strike out pleadings, the court must apply case management principles and attain the objects set out in Order 1 Rule 4B of the Rules of the Supreme Court, 1971. The court may adopt a more robust attitude to pleadings in the context of case management, including other pre-trial procedures. And the court discourages needless interlocutory applications.

But the observance of rules of pleading is not antithetical to case management. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance; and it is the pleadings which determine the matters in issue for the purposes of discovery. Properly defining the issues, and confining them to those that need to be resolved, assists in meeting the objects of Order 1 Rule 4A and 4B.

To ensure a basic requirement of procedural fairness, a pleading must state the case sufficiently clearly to allow the other party a fair opportunity to meet it. A statement of claim must state the material facts to support the claim for relief, but not the evidence by which those facts are to be proved and the pleadings must define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court.

Pleadings that raise immaterial or irrelevant issues, or fail to confine the issues or state the case of the party in question with reasonable particularity, may be struck out on the ground that they may prejudice, embarrass or delay the fair conduct of the proceedings. A defendant may not plead 'irrelevant facts, opinions, arguments, reasons or rhetoric under the guise of background facts or narrative'. The pleading of such matters may improperly enlarge the ambit and range of discovery and make it difficult to determine the admissible evidence which a party is entitled to adduce at the trial.

It is in issue whether Cutmere was a trustee of the 333 Trust, but the 'pleaded fact' on which Technip relies - the evidence that has been provided to it to date - is not a material fact. Paragraph 2(c)(iii) is a combination of evidence and argument, aggravated by the inclusion of the words 'credible or admissible' that have no place in the statement of claim. Paragraph 2(c)(iii) should be struck out as embarrassing.

The sections of the Corporations Act pleaded in par 10(b) are irrelevant to whether Cutmere contracted as a trustee or in its own right. It is not in dispute that Cutmere executed the Lease. The issue Technip seeks to address is the prospect that Cutmere was not a trustee, and whether the statutory presumptions will enable it to establish liability in its personal capacity. It is not apparent how Technip can relate the statutory assumptions to the capacity in which Cutmere contracted, or whether the company was authorised to contract in its own right.

Cutmere contracted as lessor. It either is or is not a trustee. If it is, whether it limited its liability to the extent of the assets of the trust is a question of construction of the Lease and Deed of Variation, applying well settled principles on the construction of commercial agreements. Assumptions by Technip about Cutmere's authority to contract in its own right and capacity are irrelevant to whether Cutmere is a trustee and are irrelevant to the question of construction. Both challenged paragraphs are strike out

Tags : Pleadings Paragraphs Striking off

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