Howard Charles Grant, John Whitton Haslem, Cecil John Louttit and Laurus Vant Westende v Estill Holding Pty Limited [1989] ACTSC 27 (16 June 1989)

SUPREME COURT OF THE ACT

HOWARD CHARLES GRANT, JOHN WHITTON HASLEM, CECIL JOHN LOUTTIT
and LAURUS VANT WESTENDE v. ESTILL HOLDING PTY LIMITED
S.C. No. 172 of 1989
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Practice and Procedure - particulars of allegations in Statement of Claim - whether request proper - no new question of principle involved.

Devon Gold N.L. v. Wilson (1950) ALR (CN) 1002

Pinson v. Lloyds and National Provincial Foreign Bank, Limited (1941) 2 KB 72

Commercial Bank of Australia v. Thomson (1964-5) NSWR 410 p 415.

HEARING

CANBERRA
16:6:1989

ORDER

The appeal be allowed.

The order of the Registrar ordering further and better particulars be set aside.

Costs reserved.

DECISION

By an agreement, the making of which on 18 July 1986 is not, for the purposes of this matter, in dispute, the plaintiffs agreed to sell and the defendant agreed to purchase all the residue unexpired of the lease to be registered in respect of Unit 3 in Units Plan for Block 84 Section 37 at Deakin in the Australian Capital Territory for the sum of $500,000. Clause 30 of the agreement provided that the agreed deposit of $50,000 was to be paid in two instalments of $25,000, the first payable on the signing of the agreement, the second payable when the whole of the premises being erected on the said Block 84 should reach "lock-up stage". The clause provided that the certificate of Costain Australia Limited should be conclusive evidence as between the parties that that stage had been reached.

2. Clause 29 of the agreement was in the following terms:
"The seller warrants that on completion the

improvements erected on Block 84 Section 37
Deakin shall be in accordance with plans and
specifications approved by the Building
Controller under the Building Ordinance of the
Australian Capital Territory and that the
schedule of finishes to such building shall be as
near as possible to those contained in the
schedule annexed hereto and marked with the
letter "B" and that the seller will on the
written request of the buyer exercise all its
rights in relation to Development Agreement
between the sellers and Costain Australia Limited
dated the 4 (sic) day of June 1986 in respect of
any defects or faults in workmanship appearing
within a period of ninety (90) days from the date
of registration of the units plan respect to the
unit hereby sold."

3. It appears that the word "in" should have appeared in the clause immediately after the word "plan" where last used in the clause.

4. Clause 31 of the agreement reads:

"The Seller acknowledges that the Buyer shall
have the use of the function room on the ground
floor of Block 84 Section 37, as identified in
the plan annexed "C" at all reasonable times and
at no charge other than reimbursements of power,
cleaning, breakages and repairs and the Seller
acknowledges that they will enter into a Deed of
Agreement in relation thereto on or before
completion hereof."

5. The text of attachment "B" to the agreement was headed:
"DEAKIN OFFICE BUILDING FINISHES SCHEDULE"

6. I annex a copy of that attachment to these reasons.

7. By writ issued on 22 March 1989, the plaintiff claimed, inter alia, specific performance of the agreement.

8. The defendant entered an appearance by its solicitors on 4 April 1989. On 11 April 1989 they wrote to the plaintiffs' solicitors requesting particulars. The requests with which I am concerned were as follows:

"3. In relation to paragraph 3 sub paragraph 6 of
the Statement of Claim:
(a) When was the said $25,000 paid to the
stakeholder?
(b) With what Bank/Financial Institution was
the said deposit invested?
(c) At what interest rate has the said
deposit been invested?
(d) At what date was the said deposit
invested?
(e) How much interest has accrued on the
deposit to date?
4. In relation to paragaraph 3 and in reference
to reaching lock up stage, look at annexure
"B" to the Agreement for Sale (the Finishes
Schedule) and say:
(a) In relation to each service particularised
therein:
(i) upon what date was the service
completed;
(ii) who performed the service?
(b) In relation to each good referred
therein:
(i) when was it installed on the premises?
(ii) what is the brand name of each good
supplied?
6. In relation to paragraph 5 sub paragraph 3 in
relation to the participation referred therein:
(a) When did the act of participation take
place;
(b) How did the defendant or its representatives
participate?
7. In relation to paragraph 5 sub paragraph 4
and in respect to contributions to the body
corporate referred therein:
(a) When was each contribution paid?
(b) Was each contribution pursuant to a request?
(c) If yes to (b):
(i) who made the request?
(ii) what was the amount of the request?"

9. The letter went on to say that the defendant's solicitors assumed that, unless advised to the contrary, they would not be required to file a defence until they had a reasonable time to consider the answers to the request for particulars. They reserved their rights to request further particulars upon perusal of the answers.

10. The plaintiffs' solicitors refused to answer the request for particulars just referred to, saying that they were not proper requests for further and better particulars. In their letter of 28 April 1989 they went on to say:

"We draw to your attention that the Writ of
Summons & Statement of Claim was served on your
office on the 23rd March 1989 and that over a
month has passed without your clients have
(sic) pleaded their defence (if any). In the
light of this fact we are instructed by our
client to require your client to file and
deliver its Defence by 4.00 pm on Friday the
12th May 1989. Our clients reserve the rights
in default. Our clients are concerned at the
delay and specifically draw your attention to
Clause 28 of the Agreement."

11. That clause provided that, notwithstanding any provision in the agreement to the contrary, in the event that the buyer did not complete the agreement within fourteen days of the registration of the Units Plan and issue of the certificate of title then, in addition to all other moneys payable by the buyer, the seller should be entitled to interest on the balance of the purchase money then outstanding at the rate of twenty percent per annun from the date of registration of the Units Plan and the issue of the title in respect of the unit sold to the date when the buyer actually completed the agreement.

12. On 2 May 1989 the defendant's solicitors wrote to the plaintiffs' solicitors disputing the claim by the latter that the particulars sought in paragraphs 3, 4, 6 and 7 were not the subject of a proper request for particulars. In a further letter of 10 May 1989 the defendant's solicitors gave notice that they proposed to seek an order for further and better particulars unless those requested were supplied by midday on 11 May 1989 or the plaintiffs' solicitors indicated that the answers would be provided within a reasonable time.

13. The defendant filed its notice of motion seeking an order for further and better particulars on 16 May 1989. Within the hour the plaintiffs served a summons seeking summary judgment for specific performance.

14. On 18 May 1989 the plaintiffs' solicitors sought advice from the defendant's solicitors as to whether their client was prepared to agree to an adjournment of the hearing of the summons for summary judgment to 9 June 1989. As to the motion for further and better particulars which was returnable on 22 May 1989 before the Registrar, they sought an adjournment until after the determination of the summary judgment proceedings on the basis that if those proceedings were resolved in favour of the plaintiffs the motion in respect of particulars would become unnecessary. By letter of the same day the solicitors for the defendant said that they confirmed their advice to the plaintiffs' solicitors that on 19 May 1989 they would apply for an adjournment of the application for summary judgment until 26 May 1989.

15. The hearing of the application for further and better particulars took place on 23 May 1989. The learned Registrar considered that the requests numbered 3, 4, 6 and 7 were proper requests for particulars and ordered that the particulars sought should be furnished within seven days and that the plaintiffs should pay the defendant's costs of and incidental to the application. The plaintiffs appealed. The matter comes before the Court as a rehearing de novo (O.61, r.5(f)).

16. As to sub-paragraph 3(a) of the requests in the defendant's letter of 11 April 1989 I think that the statement of claim sets out the date when the $25,000 referred to therein was paid to the stakeholder because it says that on 18 July 1986 the defendant paid the sum of $25,000 as the first half of the deposit. It seems to me that moneys paid as part of the deposit could only have been paid pursuant to the contract and therefore to the stakeholder. The remaining sub-paragraphs of paragraph 3 are not, I think, proper requests for particulars. According to the relevant clause in the agreement, the stakeholder was authorised and directed to invest the deposit and each of the parties agreed that they and it would give necessary directions and do all things to enable the stakeholder to invest the deposit in the manner authorised by the clause. The questions do not, in my opinion, go to any allegation material to the pleadings between the parties. The information sought is in the hands of the stakeholder and since the moneys are held by the stakeholder for investment at the direction of both vendors and purchaser, it seems to me that any information as to the investment should be available equally to the vendors and the purchaser. I do not see how the vendors could be said to have undertaken to provide the information requested as part of their contractual liability.

17. As to paragraph 4 of the request it is apparent that the request as framed relates to "the lock-up stage". As the certificate of Costain Australia Limited was to be conclusive evidence as between the parties that that stage had been reached the question as framed requires no answer. In any event it is plain from a cursory inspection of attachment "B" to the agreement that much of the work referred to in that attachment was intended to be carried out after "the lock-up stage".

18. As to the requests in paragraphs 6 and 7, the information is not required so that the defendant may plead properly to clause 5 of the statement of claim which merely says that "subsequent to the date of the agreement, the defendant confirmed the agreement". Particulars were then given. What is really sought is not so much particulars of the plaintiffs' pleading but particulars of their particulars. In my opinion the defendant is not entitled to them: see Devon Gold N.L. v. Wilson (1950) ALR (CN) 1002 and Pinson v. Lloyds and National Provincial Foreign Bank, Limited (1941) 2 KB 72.

19. It was apparent during the course of the hearing before me that the defendant sought particulars with a view to establishing that the plaintiffs had failed to comply with their warranty given in clause 29 of the agreement. As I understood the way its case was put, the defendant proposed to submit that if it were proved against the plaintiffs that they had not complied in substance with their obligations under clause 29 of the agreement they would not have been in a position to complete and hence the defendant would have a defence to the claim. But it is not the function of particulars to provide a party with facts upon which it may found a defence: Commercial Bank of Australia v. Thomson (1964-5) NSWR 410 p 415. I doubt whether it was necessary to plead paragraph 5 of the statement of claim at all.

20. In any event, I think enough particulars of paragraph 5 to enable the defendant to plead to it were given.

21. The appeal is allowed and the order of the learned Registrar ordering further and better particulars is set aside.

22. I reserve the question of costs of the appeal and of the hearing before the Registrar.