Assoc Food v Baxter [1999] NSWSC 236

Assoc Food v Baxter [1999] NSWSC 236

Proposed paragraph 29A adequately pleaded a course of dealing based on an assumption that ABC had been substituted for ATS as a Joint Venturer, but did not sufficiently plead the material facts establishing change of position or detrimental reliance necessary to make it unjust or unconscionable for ATS to resile from the convention. The particulars were only particulars of dealings and did not cure that omission. Proposed paragraph 112A was sufficient because it pleaded termination by a specified notice and identified clause 11.3 of the First Joint Venture Agreement in the context of the pleading.

Jurisdiction
Australia
Judgment Date
17 March 1999
Procedural Posture
Application by the Plaintiffs for Leave to Amend the Statement of Claim / Hearing of Amendment Application
Outcome
Application for leave to amend the statement of claim adjourned.
Legal Topics
['pleading' 'amendment of Statement of Claim' 'estoppel by Convention' 'particulars' 'change of Position or Detrimental Reliance']
['practice and Procedure' 'equity'] ['pleading' 'amendment of Statement of Claim' 'estoppel by Convention' 'particulars' 'change of Position or Detrimental Reliance']

Case Brief

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Procedural Posture

Application by the Plaintiffs for Leave to Amend the Statement of Claim / Hearing of Amendment Application

Legal Issues

  1. 1 ['Whether the plaintiffs should have leave to amend the statement of claim to plead estoppel by convention in proposed paragraph 29A and related particulars.' 'Whether proposed paragraph 29A pleaded the material facts necessary for estoppel by convention, including change of position or detrimental reliance.' "Whether proposed paragraph 112A sufficiently pleaded termination of ATS's rights under clause 11.3 of the First Joint Venture Agreement." 'Whether proposed prayers 8B and 8C were supported by pleaded material facts.']

Ratio Decidendi

Proposed paragraph 29A adequately pleaded a course of dealing based on an assumption that ABC had been substituted for ATS as a Joint Venturer, but did not sufficiently plead the material facts establishing change of position or detrimental reliance necessary to make it unjust or unconscionable for ATS to resile from the convention. The particulars were only particulars of dealings and did not cure that omission. Proposed paragraph 112A was sufficient because it pleaded termination by a specified notice and identified clause 11.3 of the First Joint Venture Agreement in the context of the pleading.

Court Disposition

Application for leave to amend the statement of claim adjourned.

Orders

  • ['Counsel for the plaintiffs was allowed time to consider whether to press the application to introduce prayers 8B and 8C and to review the draft amendment in paragraph 29A and its particulars in light of the reasons.' 'The Court indicated that an amendment to introduce prayer 8A would be allowed.']