Melbourne IT (ARQ Group) v Maverick HR Pty Ltd [2018] QDC 229 (13 November 2018)

Last Updated: 15 November 2018

DISTRICT COURT OF QUEENSLAND

CITATION:	Melbourne IT (ARQ Group) v Maverick HR Pty Ltd [2018] QDC 229
PARTIES:	Melbourne IT (ARQ Group) ABN 21073716739 (applicant) v Maverick HR Pty Ltd (respondent)
FILE NO/S:	3516/18
DIVISION:	Civil
PROCEEDING:	Application to strike out
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	13 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2018
JUDGE:	Richards DCJ
ORDER:	That the statement of claim be struck out. The plaintiff must file a new statement of claim within 28 days of this order. That judgment be entered against the plaintiff in respect of paragraph one of the claim. That the plaintiff is to pay the defendants costs of and incidental to this application to be assessed unless otherwise agreed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where there is an application for summary judgment - whether the statement of claim should be struck out - where the pleadings are not clear – whether the inconsistencies in the statement of claim would cause prejudice or delay - where a new statement of claim is appropriate.
COUNSEL:	Edmund Robinson for the applicant
SOLICITORS:	Johnson Winter & Slatery Lawyers for the applicant Ms Uttara Chavan appeared unrepresented on behalf of the respondent

[1] This is an application to strike out a pleading and for summary judgment to be entered in respect of certain parts of the statement of claim filed by the plaintiff on 20 September 2018. The plaintiff is a company who, at the hearing of this application, was represented by Ms Chavan who is the director and owner of Maverick HR Pty Ltd.

[2] On 17 February 2015 the plaintiff signed a contract for the purchase of a business from Wendy Parker and Harry Xazz trading as Xazz Media Group and Web Design. A payment of $30,000 was made on that date. Contained within the agreement was a restraint of trade clause that ran for 60 months from the date of payment of $30,000. From what can be ascertained from the material there was a breach of that contract in that it seems that the sellers did not abide by the restraint of trade clause and began approaching their old customers to come across to a new business. Accordingly the plaintiff sued them in the Magistrates Court in Brisbane and obtained judgment in the sum of $150,000 against the sellers. The sellers have since gone into bankruptcy.

[3] The plaintiff sought help from the police as she maintained a fraud was perpetrated against her. The police declined to prosecute and advised the plaintiff that it was a civil matter. As a consequence Ms Chavan filed a claim against the defendant in this court.

[4] The applicant/defendant has asked for the statement of claim to be struck out on the basis that it does not disclose a cause of action and even if it does the terms of the claim are so unclear and lacking in detail as to make it embarrassing for the defendant to plead to the statement of claim. This is despite a defence having been filed.

[5] Ms Chavan on behalf of the plaintiff seemed intent on submitting that there had been criminal activity going on in relation to the business and that she had been the subject of fraudulent activity by the defendant. She filed two affidavits in relation to this application however they are difficult to understand. It is not exactly clear what the fraudulent activity was or how the defendant is responsible for the fraudulent activity. It is unclear what the relationship between the defendant, the plaintiff and the sellers was.

[6] Rule 171 of the UCPR allows the strike out of a pleading where a pleading discloses no reasonable cause of action or has tendency to prejudice or delay the fair trial of the proceeding. In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, White JA noted: “Nonetheless any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding...”

[7] I agree with the applicant that the statement of claim in this case is difficult to follow and does not disclose a cause of action. It is unclear from the pleadings what Melbourne IT does other than something to do with computers or web design. It is also unclear from the pleadings what relationship the defendant had with the sellers or why the plaintiff holds the defendant responsible for the actions of the sellers. It may be that there is a case that the defendant was acting as an agent for the sellers and therefore responsible in some way for their actions, or that they did not exercise due diligence in relation to their business. The plaintiff in pleading a case makes allegations against the sellers but does not then link the defendant to those actions, or makes allegations against the defendant with no detail so that meeting the allegation is impossible. Without knowing more about the case it is difficult to see that any action arises, however the defendant, appropriately, does not press for any other order other than to have the statement of claim struck out.

[8] There are small formal portions of the statement of claim that could survive this application but in my view they are minor and the more appropriate action is to simply strike out the whole of the claim and to give the plaintiff the opportunity to start again.

[9] The applicant/defendant has also asked for summary judgement for parts of the claim namely paragraphs 1, 2 and 6. Ms Chavan stated in her submissions clearly that there was no contract between the plaintiff and the defendant. She cannot therefore claim damages for breach of contract namely the $33,400 she paid to the sellers from the defendant as it is acknowledged they had nothing to do with the contract. In any event she seems to have an order against the original sellers in relation to the breach of contract. Accordingly it is appropriate to strike out that claim.

[10] In relation to the loss incurred in running the business, depending on how that is pleaded there may be a case for damages for losses incurred, so at this stage I am not inclined to strike out that claim. Similarly, in relation to the damages for harm to the goodwill of the business, at the moment there is very little to connect the defendant with damage to reputation or goodwill but at this stage I am not prepared to enter judgment for that claim without giving the plaintiff a chance to re-plead and perhaps establish a connection between Melbourne IT and the damages that she claims.

[11] Accordingly I order that the statement of claim be struck out. The plaintiff must file a new statement of claim within 28 days of this order. I further order that judgement be entered against the plaintiff in respect of paragraph one of the claim. The plaintiff is to pay the defendants costs of and incidental to this application to be assessed unless otherwise agreed.