Cornerstone Investment Aust Pty Ltd (In Liquidation) v Tom Seymour

HIS HONOUR: Para 62 of Practice Note SC Eq 3 provides that:

The plain object of the Practice Note is to discourage such applications except in the clearest of cases. It is inimical to the efficient operation of the Commercial List (where strict pleading is not required) for the Court to be detained by such applications, other than in those type of cases.

Before the Court is an application to strike out the plaintiff’s Amended Commercial List Statement, filed on 10 December 2021. An earlier emanation of the List Statement was struck out by Williams J, with leave to replead, on 16 November 2021, after the plaintiff conceded that it had deficiencies.

The new List Statement has significant difficulties in structure and articulation, some but not all of which were the subject of debate during the hearing of the application. It is not necessary to repeat them here, suffice it to say that the plaintiff brings claims in contract and tort but has not opted to plead these causes of action in the way in which this is traditionally and appropriately done. The List Statement contains numerous allegations which are not properly part or any element of a cause of action. One of the defendant’s complaints, which is not without substance, is that the plaintiff has not adequately particularised allegations of knowledge of various things said to have been held by the plaintiff.

Whilst its inadequacies do not rise to the level of making it a plain case where it should be struck out, the instrument is, in my view, likely to cause difficulties, in particular for the plaintiff, especially when this matter comes to trial. In a case such as this, it is incumbent on the plaintiff to articulate its case with precision: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [5]-[7]; Swiss Re International SE v David Simpson [2018] 354 ALR 607, 611 at [31]-[35].

I invited the plaintiff to consider repleading but perceived some reluctance on its part to accept. Nevertheless, I propose to afford it that opportunity whether it wishes to take it up or not. Also, despite it not being the general practice in this List, but given the nature of the complaints made by the defendant and the debate which took place, I propose to permit the defendant to request, and to require the plaintiff to provide, further particulars.

Given the mixed success of the parties, the application will be dismissed but the costs will be costs in the cause.

I note that I did give the plaintiff leave to make a minor amendment to para 94(c).

The court makes the following orders:

Liberty to apply may be utilised for the purposes of bringing any application for leave to amend consequent upon any refusal to consent to the subject of order (3).