Case: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles. 19 As to MRPL, the ACCC pleads at para 4 that MRPL was a broker and supplier of loan arrangement services to members of the public in Australia including Queensland. By para 4.5, MRPL supplied all of the loan arrangement services described within the definition of that term. By para 4.6, MRPL was not a supplier of loan products and by para 4.7, MRPL was authorised by Australian Finance Group Ltd ("AFG") to submit loan applications on behalf of customers in respect of loan products to loan providers and to supply loan arrangement services to customers in respect of those products. By para 4.8, MRPL was remunerated for its supply of loan arrangement services by commission paid by a loan provider through AFG if the customer acquired the loan product of that provider. By para 4.9, MRPL from February 2003 was accredited by ANZ through AFG to submit loan applications to ANZ for ANZ loan products and by para 4.10, in the case of ANZ loan products, MRPL was paid commission for its loan arrangement services by ANZ through AFG if its customers acquired an ANZ loan product. By para 4.11, MRPL was not an agent of ANZ. 20 As to AFG, the ACCC pleads that it was an aggregator with contracts with loan providers for its accredited member brokers to submit loan applications on behalf of customers for the loan provider's loan products (para 5.2). It contracted with loan providers to ensure member brokers complied with the loan providers' standard procedures and requirements in submitting loan applications (para 5.3). From November 2002, AFG was the aggregator through which MRPL was accredited to submit loan applications on behalf of customers for loan provider's loan products (para 5.4) and from on or about February 2003, AFG was the aggregator through which MRPL was accredited to submit applications on behalf of customers to ANZ for an ANZ loan product (para 5.5). By para 5.6, AFG was remunerated by retaining a proportion of the commission payable by the loan provider to the broker who provided loan arrangement services. 21 As to the market, the applicant pleads: 6. At all material times: 6.1 there was and is a demand, from members of the public seeking to choose and acquire loan products, for loan arrangement services in Australia or, alternatively, in Queensland; and 6.2 loan arrangement services are and were supplied by, inter alia, brokers and loan providers, including ANZ 7. At all material times there was a market in which: 7.1 loan arrangement services were supplied to members of the public; 7.2 from February 2003 [MRPL] competed with, inter alia, ANZ to supply loan arrangement services, or alternatively loan arrangement services in respect of ANZ loan products; and 7.3 ANZ competed with, inter alia, [MRPL] to supply loan arrangement services, or alternatively loan arrangement services in respect of ANZ loan products. 27 First, there is a market for services described as loan arrangement services . They are services offered by a supplier to customers . A customer is a potential acquirer of both a residential home loan (a loan product ) from a provider of residential home loans, and a loan arrangement service from a supplier of that service. The content of a loan arrangement service is defined as a service supplied to such customers of assisting them in choosing a particular residential home loan offered by a provider of such loans (i.e., a residential home loan lender). However, that service, by definition (para 1) has a number of component parts. A supplier of a loan arrangement service is someone that does these things: first, advises customers as to the features of available loan products from one or more residential home loan lenders; secondly, advises a customer of the available products that best suit the customer; thirdly, assists customers to complete and lodge an application for a loan which meets the lender's requirements; fourthly, acts as a facilitator or liaison between the customer and the lender in the transaction for the acquisition of a loan; and fifthly, manages the ongoing relationship between the customer and the lender after the loan has been taken up. This definitional statement of the content of loan arrangement services offered by suppliers of such services is expressed to be inclusive of these component parts. There may be other component services making up loan arrangement services but loan arrangement services at least include these elements. MRPL is a supplier of all of these services. ANZ however is not a supplier of loan arrangement services as defined by para 1. By para 3, ANZ is said to be a provider of loan arrangement services confined to its own loan products, their features, availability, terms and conditions, particular suitability to the customer's needs and the provision of assistance in the completion and lodging of applications to ANZ that meet the requirements stipulated by ANZ for such applications and the subsequent management of the banker/customer relationship in relation to that loan. 28 Secondly, the market for loan arrangement services is characterised by demand for these services in Australia or alternatively in Queensland from members of the public seeking to acquire a separate service, i.e., the acquisition of a residential home loan. 29 Thirdly, on the supply side, loan arrangement services are provided to those on the demand side by brokers (that is, a supplier not an agent of the lender, remunerated directly by the customer or by commission from the lender should the customer take up a loan (or a combination of both)) and by ANZ , among others .