Case: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited (1995) 132 ALR 514
Outcome: followed
to filing its motion, GE Capital's solicitors sought particulars and details of the arrangements pursuant to which new Boston claimed to be entitled to sue in respect of the representations made to and conduct experienced by old Boston and to exercise old Boston's rights under the GE Capital contract. They also pointed out that in National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited (1995) 132 ALR 514 Lindgren J had held that causes of action under the Act were not assignable. Eventually, new Boston provided GE Capital with a copy of the sale agreement. On 20 July 2006, GE Capital's solicitors sought particulars of the statement of claim. When the matter came on for hearing, I was informed that although the letter had been received on 25 July 2006, no particulars had been supplied. The solicitor for new Boston asserted, but GE Capital does not accept, that this was because he had been engaged in settlement discussions from July 2006 and in preference to answering formal legal letters he had sought to concentrate on those discussions which were ongoing. This assertion was made during the hearing and confirmed in Mr Gower's affidavit, which was filed on the following day. GE Capital objected to the affidavit being read as its contents were not accepted as accurate. Given that the way in which new Boston's claims were being put was in issue on the return of the motion I will read the affidavit but limit its use under s 136 of the Evidence Act 1995 (Cth) to evidence of an assertion of Mr Gower's state of mind and not as evidence of the truth of the assertion. GE Capital has not had an opportunity to test Mr Gower's assertion. In any event, I regard the assertion as providing no adequate explanation of the failure to provide particulars in a serious piece of contested commercial litigation. The provision of particulars of the way in which new Boston claimed its case was being put would obviously have assisted, if it were possible, new Boston's case in resisting the motion. New Boston sought to resist the application but propounded a fallback position that should be granted leave to amend its claims for relief in s 51AC to include an allegation of unconscionable conduct in respect of itself and, to plead continuing representations by GE Capital. I was informed that there were emails between GE Capital and both new Boston and old Boston addressing the issue of the agreed amount of referrals and the number actually provided. New Boston also made an oral application to plead a claim in quantum meruit on the basis that if there were no contract between GE Capital and new Boston for the services provided after 1 July 2005, then new Boston should be allowed to make such a claim. New Boston argued that the less generous negotiated rate between GE Capital and old Boston for the provision of field calls (calculated on the basis of the volume of 282 per month) could be revisited based on the higher fixed costs and lower number of referrals which new Boston had in carrying out those field calls. Beaumont J agreed saying that in his view the contrary was not reasonably arguable. Lindgren J followed both these decisions in National Mutual Property Services (Australia) v CitiBank Ltd (1995) 132 ALR 514 at 539, as did von Doussa J in Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at 116-117 [204] - [207] . And, in Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218F-G Branson J (with whom Spender and Olney JJ agreed) applied the reasoning of Davies and Lindgren JJ to hold that the estate of a deceased person could not satisfy the statutory requirement of s 82 of being a 'person' who suffered loss or damage. Her Honour also held that the estate could not satisfy the statutory requirements of s 87 of the Act of being 'a person who is a party to the proceeding' or 'a person who has suffered, or is likely to suffer, loss or damage'.