ACT Commercial Builders Pty Ltd v BBSJ Partners Pty Ltd
[2020] ACTMC 28
•18 December 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Commercial Builders Pty Ltd & Anor v BBSJ Partners Pty Ltd & Anor |
Citation: | [2020] ACTMC 28 |
Hearing Date(s): | 8.9.2020 – 11.9.2020 |
DecisionDate: | 18 December 2020 |
Before: | Magistrate Stewart |
Decision: | See [13] – [23] |
Catchwords: | CIVIL JURISDITION – Contract – pleadings – application to exclude evidence contained in filed statements |
Legislation Cited: | Court Procedure Rules 2006 |
Cases Cited: | Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82, [5] – [8]. Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883. McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 |
Texts Cited: | Zuckerman, A., et al., Zuckerman on Australian Civil Procedure (Lexis Nexis, 2018) |
Parties: | ACT Commercial Builders Pty Ltd (First Plaintiff) Ian Hoare (Second Plaintiff) BBSJ Partners Pty Ltd (First Defendant) Qian Xiao (Second Defendant) |
Representation: | Counsel D. Robens (Plaintiffs) M. Noakhtar (Defendants) |
| Solicitors Harrington Hall (Plaintiffs) McInnes Wilson (Defendants) | |
File Number(s): | CS 43 of 2019 |
MAGISTRATE STEWART:
In this matter, parties seek determination of a preliminary matter, namely the admissibility of evidence in respect of alleged deficient pleadings on the part of the plaintiff.
I have received written submissions from counsel on the issue, arising out of an application on the first day of hearing.
Background and summary of submissions
This matter is a contractual dispute between the builder (Plaintiffs) and the owner (Defendants). The dispute is based on the builder’s claim for partial non-payment for near completed works relating to a restaurant fit-out, with a defence and counter-claim alleging (amongst other things) delay and partial non-completion of the contract.
The issue for preliminary determination is a defective pleadings argument made by the owners in an attempt to preclude the consideration of delay caused by their own defective architectural plans. The contract for the construction stipulated that the owner was to provide the plans for the works. When the builder attempted to commence works, he ascertained that the initial plans were grossly defective and not able to be used. The builder alleges that it is a core part of his case that this caused a significant delay whilst accurate plans were drafted. The owner’s architect – and drafter of all of the plans - has not been joined by either party.
In their application, the owners submit that the builder’s case of delays being caused by matters out of the builder’s control (including those caused by defective plans by architects), were not encompassed in the builder’s pleadings. The defendants therefore submit that their inclusion in the matter at hearing have ‘taken them by surprise’ and have objected to the admissibility of that evidence, referring to those materials as ‘unpleaded evidence’. [1]
The builder submits that timing issues, including delays caused by the owner’s architects have been an issue in contention prior to hearing, well and truly disclosed and particularised in witness statements and seek that the owner’s application be dismissed. In the alternative, the plaintiffs propose to provide an amendment to their Reply to Amended Defence and Counterclaim to include the issues as foreshadowed above.
I have included a court file chronology here because the issue of provision of statements appears to be directly relevant to the issue for resolution:
Date Event 7.3.2019 Originating application filed 9.4.2019 Notice of intention to respond filed 24.4.2019 Defence & Counterclaim filed 9.7.2019 Directions hearing questionnaire filed 10.7.2019 Amended Originating Claim and Statement of Claim filed 14.8.2019 Amended Defence filed 6.9.2020 Reply to amended defence filed 18.10.2019 Affidavit re: list of documents for defendants filed 22.10.2019 Affidavit re: list of documents for plaintiffs filed 20.1.2020 Orders re: filing/serving 11.3.2020 Listing hearing questionnaire plaintiff filed 18.3.2020 Listing hearing questionnaire defendants filed 03.6.2020 First statement of builder 13.7.2020 Order re: serve witness statements
Def to serve by 17.7.2020
Plaintiff to serve by 7.8.2020
Def to serve in reply 21.8.202017.7.2020 Date for defendant to serve witness statements 4.8.2020 Notice of change of solicitor filed 7.8.2020 Date for plaintiff to serve witness statements in reply 12.8.2020 Date of plaintiff’s statement in reply. 21.8.2020 Defendant to serve witness statements in reply in relation to counterclaim 27.8.2020 Court book filed 28.8.2020 Application in proceeding (Def to appear by AVL re: Covid-19) filed 28.8.2020 Affidavit re: application in proceeding filed 1.9.2020 Affidavit re: application in proceeding filed 2.9.2020 Application in proceeding allowed re: AVL appearance 7.9.2020 Hearing callover 9 – 11.9.2020 Hearing 25.9.2020 Plaintiff e-tender of submissions on pleadings argument 11.10.2020 Defendants e-tender of submissions on pleadings argument 27 – 29.4.2021 Listed for further 3 days of hearing
Pleadings and case management
Pleadings are the necessary starting point for civil proceedings: [2]
“A clear and precise understanding of the issues is essential to the effective conduct of the proceedings, since it guides the parties in the preparation of their evidence and enables the court to manage the case efficiently.”
It is uncontroversial that civil litigation has developed with the intention to operate with a ‘cards on the table approach,’ thereby encouraging a ‘just, quick and cheap disposal of the proceedings.’ [3] To that end, the law of pleadings has simplified in ways over some time:
The function of pleadings is to state with sufficient clarity the case that must be met…pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. [4]
Whilst the clarity offered by pleadings is an important aspect to civil litigation generally, [5] the court has increasingly played a role in case management of disputes arising out of pleadings on technicalities: [6]
Provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment [to contemporary times]. [7]
In this matter substantial and detailed witness statements have been filed and served as part of the case management process of the matter. The material objected to in this application is contained in the plaintiff builder’s statements.
This process is directed in accordance with the Practice Direction in Civil Matters that commenced on 01 January 2019. That notice says at footnote 2:
These statements are not affidavits, (sic) and provide opposing parties with notice about who the witnesses will be and what they are expected to say orally during the hearing. Those statements, or parts thereof, may be admitted into evidence by consent.
Decision
If there was a failure to particularise, other than by filing and serving witness statements, the parties did not use the processes of the Court to resolve those issues prior to the directed serving of witness statements. Such processes are there to clarify the issues and stop the unnecessary wastage of time at hearing. Utilised properly they have the ability to shorten summary hearings and reduce costs.
The topic of delay is inevitably going to be dealt with in the defendant owners liquidated damages claim as they have to show, pursuant to the contract, that they did not cause delay by their own ‘action or inaction’. Even if I found in the owner’s favour on this application, the same material would be legitimate material for cross-examination of the owners. The allegations of owner-caused delays are always going to be relevant to this matter.
I decline to address the parties submissions in blow by blow detail. Enough time has been taken out of the hearing time of this matter on this topic which seems to me to be well settled by the case law when considered with the case management approach of this court to witness statements.
I find that the filed witness statements resolved any proper complaint about deficient pleadings. The filing and serving of those statements enlarged the pleadings [8] and apprised the parties of the case that had to be met. [9] I therefore decline the owner’s application for exclusion.
Vide rr 426 of the Court Procedure Rules 2006, I consider that the issues between the parties are sufficiently defined between the pleadings and witness statements and order that pursuant to r 426(2) that the proceeding may be properly tried without further pleadings.
I direct the parties in accordance with r 426(3) to prepare a joint statement of facts and issues to be filed prior to 27 February 2021.
The parties are, of course free, to seek clarification of particulars or aspects of their cases if they consider that they are not already clear in the pleadings and witness statements. If there ever was a time for ‘cute’ or circular responses to such requests that time has now well passed.
I grant leave to both parties to apply to seek the limited recall of any witness if I can be persuaded of any embarrassment or other necessity.
I order that the plaintiff builder prepare and file a “Scott Schedule” pursuant to rr 431 by close of business 12 February 2021. The defendant owners are to complete and file that schedule by the close of business 26 February 2021.
I again implore the parties to resolve this matter. It seems to me that given the amount of hearing time expended so far and the listed hearing time to be expended in the future, the fact that counsel are briefed and the small quantum sought in the claims that there is a high likelihood that the victor will be rewarded with a victory akin to that of Pyrrhus of Epirus.
I award the costs of this application against the defendant owners as agreed or assessed.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart Associate: Date: 18 December 2020 |
[1] Defendants Submissions on the Application of Pleadings 11.10.2020.
[2] Zuckerman on Australian Civil Procedure, p247.
[3] Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61.
[4] Zuckerman on Australian Civil Procedure, p297; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279.
[5] Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883.
[6] McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775.
[7] Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82, [5] – [8].
[8] Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490.
[9] Hamilton v the ACT & Anor [2011] ACTSC 45.
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