Re Western Australia v Bond Corporation Holdings Ltd [1991] FCA 45; 28 FCR 68/5 ACSR 245 (22 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: STATE OF WESTERN AUSTRALIA
And: BOND CORPORATION HOLDINGS LTD
Nos. WA G116 and 118 of 1990
FED No. 54
[1991] FCA 45; 28 FCR 68/5 ACSR 245

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

HEARING

PERTH
22:2:1991

Counsel for the Applicant: Mr E.M. Heenan QC with Mr R. Cock

Solicitors for the Applicant: State Crown Solicitor

Counsel for the First Respondent: Mr C.D. Steytler with Mr A. Siopis

Solicitors for the First Respondent: Parker and Parker

Counsel for the Second and Mr C.J.L. Pullin QC with
Fourth Respondents: Ms A. Kennedy (on 24/1/91) and

Mr J. Chaney (on 29/1/91)

Solicitors for the Second and Northmore Hale Davy and Leake

Fourth Respondents:

Counsel for the Third Respondent: Mr M.J. Stevenson

Solicitors for the Third Respondent: Jackson McDonald

DECISION

SUPPLEMENTARY REASONS FOR JUDGMENT ON MOTIONS TO DISMISS APPLICATION OR STRIKE OUT STATEMENT OF CLAIM
It has been drawn to my attention by the solicitors acting for Bond Corporation Holdings Ltd that the judgment on their motion delivered on 15 February 1991 did not deal with one particular submission relating to what is called, in the amended statement of claim, the Bond Sunday Representation, and in particular the allegation at para.16(b) that Beckwith represented that the guarantee or indemnity which the State was requested to provide would not be called upon. This representation is said to have been misleading because Rothwells was not a sound financial institution and did not have substantial assets at the time. Bond Corporation Holdings submitted that the plea was deficient because no sufficient basis was established for characterising the representation as misleading. In my opinion however, it is not necessary in every case of misleading or deceptive conduct to plead an express or implied representation to be logically negatived by the true facts as pleaded. In my opinion, in this case, the relationship between paras. 16(b) and 21 of the amended statement of claim is clear enough to support an argument that the representation alleged in para.16(b), in the circumstances pleaded in para.21, was misleading or deceptive. Further elaboration may be sought by way of particulars. I had come to that view prior to delivering judgment, but accept that it should have been dealt with expressly in the reasons. The orders made on 15 February therefore remain unchanged.