IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 496 of 1987

BETWEEN:

BARCLAY BROTHERS LIMITED
Plaintiff

AND:
GRAHAM STANLEY WHITFORD
First Defendant
LEON SAMSONENKO
Second Defendant
VITAUTS ZIRNIS
Third Defendant
ANTHONY PETER POLLARD
Fourth Defendant

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 4 December 1987)

The defendants apply pursuant to Order 23.02 to have the Statement of Claim struck out.	Upon the hearing it became clear that the application did not relate to the whole of the Statement of Claim but rather to certain parts of it, which the defendants claimed might prejudice, embarrass or delay the fair trial of proceedings (Order 23.02(c)).	The summons should have made that clear.

The Statement of Claim was specially indorsed upon the writ issued on 31 July 1987.	Broadly, it purported to

show that a company, Grinet Pty Ltd, owed the plaintiff a substantial sum of money arising from an agreement between that company and the plaintiff, that the agreement had been varied by a mortgage whereby Grinet agreed to pay the plaintiff interest on money owing, that the defendants had guaranteed the payments to the plaintiff of all monies due by Grinet to it and that the defendants had failed in that obligation.

The pleading of the primary liability of Grinet to the plaintiff is set out hereunder and will be seen ventures into a degree of particularisation.

Appearances were entered on 17 September 1987.	An amended Statement of Claim was delivered prior to 16 October 1987 and there was a further amended Statement of Claim at a later date, but none of the amendments relate directly to those parts of the pleadings about which the defendants complain.

The plaintiff took out a summons for summary judgment on 5 October 1987, and it was listed for hearing before me on 19 November.	It was then further adjourned pending the outcome of the defendants' application to strike out the Statement of Claim.

'I"he defendants sought particulars from the plaintiff by notice dated 30 October 1987 and on 4 November filed a defence to the plaintiff's action, although a reply to the defendants' request for particulars was not given by the plaintiff until 12 November 1987.	The defendants took out the summons to strike out the Statement of Claim on
18 November 1987 which was heard by me on 19 November, the same date upon which the plaintiff's application for suw ary judgrnent had been set down for hearing.

The difficulty which the defendants say they have with the Statement of Claim goes to the pleaded contractural basis for, and the quantification of, the indebtedness of Grinet to the plaintiff.	That company is not a defendant.

The Statement of Claim in that regard is as follows -

"2.		By an agreement in writing dated 23rd July, 1986 ("the agreement") between the plaintiff and Grinet Pty Ltd ("Grinet") the plaintiff agreed to provide construction management services in respect of the construction of the Four Seasons Motel in Alice Springs in the said Territory for a fee calculated therein.

PARTICULARS

The agreement in writing may be inspected by appointment at the offices of the plaintiff's solicitors.

Terms and conditions of the agreement contained, inter alia, the following:

By clause 5 thereof, the Plaintiff was responsible for the timely completion of the works.

By clause 5(c) thereof, the plaintiff was to arrange trade contracts, with the approval of the architect, trade contractors to perform parts of the works.

By clause 3 thereof, Grinet was to pay to the plaintiff:-

a fee for the construction management services provided by the plaintiff;

all amounts which the plaintiff became liable to pay to trade contractors in respect of the works;

additional performance allowances as defined therein.

In pursuance of the agreement the plaintiff carried out its obligations completed the works and handed them over to Grinet.

Pursuant to. the terms of the agreement, Grinet owes the plaintiff the sum of one million three hundred and twenty eight thousand one hundred and twenty eight dollars and fifteen cents ($1,328,128-15).

PARTICULARS
Subcontracts.
original scope of work
approved variations
other variations

Construction management fee:
original construction

$4,360,148-00
$	372,454-00
$	315,486-00

$5,048,088-00

management fee	$	632,160-00
adjustment for cost

over runs
adjustment for savings

Amounts paid to date

$	16,443-00
$	6,993-00

$	655,596-00 ($4,375,555-85)

$1,328,128-15

Documentation particularising the subcontracts and construction management fee may be inspected by appointment at the office of the plaintiff's solicitor."

By its amended Statement of Claim the last sentence of the original, as set out above, was amended to read "Documentation further particularising the subcontracts and construction management fee is delivered herewith".

The defendants have argued their application by pointing to a number of words and phrases in the Statement of Claim which they say are confusing or ambiguous when considered against the terminology employed in the agreement, but in so doing did not refer me to the tender made by the plaintiff which it appears forms part of, or at

least, must be read with the agreement.	Nor did counsel for the defendants refer me to the particulars quantifying the plaintiff's claim which were delivered with the amended Statement of Claim.	The plaintiff says that when the agreement, tender, amended Statement of Claim and particulars supplied with it are read together, what it claims is made clear.

The defendants' request for further and better particulars of the Statement of Claim was directed to the issues it raised in argument and it has had a reply.	As to the reply, the defendants say that it further confuses rather than clarifies what is set out in the Statement of Claim.

I do not think that the defendants, having embarked upon seeking particulars, ought now to be allowed to seek to have parts of the statement of claim struck out.	The appropriate course, if the defendants say they still do not understand what is claimed, is to seek further and better particulars.	The contract, tender, particulars delivered with the amended Statement of Claim and any response to the request for the particulars may be confusing, given the wording in the agreement and tender, but the plaintiff may put his case on what he perceives his claims to be arising from those documents.	If the defendants take a contrary view as to what they mean, then they deny the plaintiff's

claim, or so much of it as they wish, and the matter will be dealt with at trial.

It is not for a Judge dealing with an interlocutory application to determine what is meant by the wording of complex and inter-related commercial documents, and then to ascertain whether or not a pleading correctly sets out their effect.	That is a matter to be dealt with at trial and the plaintiff may be at risk if what it pleads to be the position is not.

The defendants' complaints regarding the Statement of Claim were put at length and the plaintiff respo,nded in some detail, but given what was said it seems to me that the defendants are now better aware of what the plaintiff intended to convey by the amended Statement of Claim and particulars delivered with it and in the reply to the request for particulars.	Likewise, the plaintiff has been pointed to the difficulties which the defendants say they face.	The real issues between them should now be apparent and capable of being resolved by the request for and giving of further and better particulars.

I do not consider that this is a case for striking out part of the Statement of Claim.	An application of this type should be made promptly and not, in my opinion, after the defendants have embarked upon seeking further and better

particulars.	If, as a result of that process, the plaintiff can see that his Statement of Claim needs further amending, then absent consent, I would expect leave to be granted.	If it does not amend, then it will run the usual risks.

The function of particulars "is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.	But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping" per Scott L.J. in Bruce v Odhams Press Ltd (1936) 1 K.B. 697 at 712-713.

In Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1985) 2 N.S.W.L.R. 340 at 351, Waddell J., commenting on authorities, spoke of an applicant for particulars, who would have been entitled to apply to have a pleading struck out as embarrassing, contenting himself with an application for particulars.	I consider this to be a similar case.

The defendants' application is dismissed.	I consider that in all the circumstances the costs of this application should be costs in the cause.	Certified fit for counsel.