Adelaide Hills Council v T & R Nominees Pty Ltd - [2020] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ADELAIDE HILLS COUNCIL v T & R NOMINEES PTY LTD
[2020] SADC 145
Decision of His Honour Judge O'Sullivan
22 October 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - GENERALLY
The respondent applied for summary dismissal of the applicant’s claim or in the alternative seeks an order that the applicant’s Second Statement of Claim be struck out.
The applicant concedes that the Second Statement of Claim should be struck out and seeks leave to replead.
In December 2012 the applicant entered into a consultancy contract with the respondent in relation to remediation work required to a waste disposal site on which there had been a land slip. A remediation design was prepared by the respondent. The other work was and carried out by a civil works contractor under a separate contract.
In 2015 a further slip occurred, requiring remediation work. The applicant commenced proceedings seeking the cost of that remediation work.
Three main issues arose:
i) Whether multiple contracts existed between the parties;
ii) Whether a three-year limitation period applied in the consultancy contract; and
iii) Whether a cap on any damages applied.
Held:
1. The respondent’s application for summary dismissal of the applicant’s claim is refused;
2. The applicant’s Second Statement of Claim is struck out with leave to replead; and
3. The parties to be heard as to costs and date for filing of a Third Statement of Claim.
Uniform Civil Rules 2020 (SA); District Court Civil Rules 2006 (SA), referred to.
Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; Bradman v Allens Arthur Robinson (2009) 103 SASR 438; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; Amcor Limited v Peter J Ramsay & Associates Pty Ltd [2018] VSC 75; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500, considered.

ADELAIDE HILLS COUNCIL v T & R NOMINEES PTY LTD
[2020] SADC 145
Introduction

This is the respondent’s (‘Tonkin’) application[1] seeking summary dismissal of the applicant’s (‘Council’) claim.
[1] FDN18.
During the hearing of the application, Tonkin made an oral application that in the alternative the Council’s Second Statement of Claim[2] filed 12 February 2019 be struck out.
[2] FDN6.
Mr Floreani of counsel, who appeared for the Council conceded, quite properly, that in light of the matters raised by Tonkin during the course of argument the Second Statement of Claim should be struck out. He sought leave to replead.
The remaining issue is whether instead of striking out the Council’s Second Statement of Claim, the Court should make an order for summary dismissal of the Council’s claim.
For the reasons I set out below, I decline to order summary dismissal of the Council’s claim. There will be an order that the Council’s Second Statement of Claim be struck out with leave to replead. I will hear the parties as to the time required and also the question of costs.
Background
The background facts are largely, although not entirely, uncontroversial.
The summary I set out below is generally drawn from the pleadings and reflects allegations rather than findings of fact.
In about 1975 the Council acquired land near Ashton, South Australia. Between then and March 2006, the Council used the site for waste disposal and landfill (‘Site’).
In or about January 2007, the Council engaged Tonkin to prepare what is referred to as a ‘closure and post closure plan’ (‘CPCP’) for the purpose of closing the Site. The CPCP was prepared in or about January 2009 and included a design to ‘cap’ the Site. The Site was capped in 2009 by a civil works contractor. Tonkin had no role in the contract for carrying out that work.
The Council sold the Site on or about 30 April 2007 with the purchaser granting to the Council a lease over the Site. Express terms of the lease permitted the Council to continue to use the Site for solid waste landfill and as a waste transfer station.[3]
[3] Second Statement of Claim [7]-[12], Defence [11]-[12].
During 2011 and 2012, four slips occurred on the northern battered slope of the Site, two in 2011 and two in 2012. The 2011 slips and the first slip in 2012 were repaired by the Council. The second 2012 slip, which occurred in winter 2012, was not repaired by the Council. In these reasons, the expression ‘2012 slip’ is a reference to the second slip which occurred in winter 2012.
The 2012 slip was repaired by Schwarz Excavations and Civil Pty Ltd (‘Schwarz’).
In 2015 there was a further slip on the northern battered slope of the site (‘2015 slip’). The Council alleges that slip occurred in September 2015. Tonkin pleads there was a slip between 28 June 2015 and 14 September 2015 but is unable to plead as to the extent and location of the slip.[4]
[4] Second Statement of Claim [19], Defence [19].
Contract(s) between the Council and Tonkin
There is an issue between the Council and Tonkin[5] as to the formation of a contract or contracts between the parties and the extent of that contract.
[5] Second Statement of Claim [13]-[15], Defence [13]-[15].
It is sufficient for the purposes of this application to proceed on the basis that in or about December 2012, Tonkin entered into a contract with the Council in relation to the 2012 slip (‘December 2012 Contract’). There is a dispute between the Council and Tonkin as to the scope of Tonkin’s contractual obligations arising out of the December 2012 contract.
The Council alleges that in January 2013, it engaged Tonkin by a separate contract to administer the tender for, and supervision of, the work required to remedy the 2012 slip. That allegation is denied by Tonkin who plead that in January 2013, rather than there being a separate contract, there was a variation to the December 2012 contract. Tonkin alleges that on 10 January 2013, it offered to vary the December 2012 contract to perform certain additional services which offer, it says, was accepted by the Council on or about 25 January 2013.
There follows disputes on the pleadings[6] as to what was agreed in January 2013 in relation to the scope of work that Tonkin was to carry out apart from whether there were one or two contracts. Those disputes include it would seem, whether it was an express term of the contract or contracts that Tonkin was to provide what is referred to as the ‘design services’ and the ‘project management services’ with such skill, care and diligence as is generally exercised by competent members of the consulting engineering profession performing any services of a similar nature at the time the service is provided. In fairness to Tonkin, it responds to this plea, in effect, by referring to what was required of Tonkin under the terms of the contract(s).
[6] Second Statement of Claim [16]-[17], Defence [16]-[17].
There is no dispute that Tonkin carried out what is described in the Second Statement of Claim[7] as a ‘remediation design’ between January 2013 and March 2014.
[7] Second Statement of Claim [18], Defence [18].
Schwarz carried out remediation work as a result of the 2015 slip. The Council claim for the cost of carrying out the remediation work as a result of the 2015 slip from Tonkin. It pleads breach of contract, breach of duty of care and misleading and deceptive conduct contrary to s 18 of schedule 2 to the Australian Consumer Law. Tonkin deny those allegations.
The Legal Principles
As a preliminary point, Tonkin’s application was filed on 15 April 2020 which was before the Uniform Civil Rules 2020 (‘2020 Rules’) came into force.
Accordingly, I determine this matter in accordance with District Rules 232 and 233 of the District Court Civil Rules 2006 (‘2006 Rules’).
Although there are some differences between the 2020 Rules and the 2006 Rules, the primary question as to whether the Court should order summary judgment remains the same namely, whether in the case of an applicant there is no reasonable basis for defending the applicant’s claim or, if a respondent, there is no reasonable basis for the claim brought by the applicant.
The result is that whichever rules are applied the test is the same.
The principles applicable to an application for summary dismissal are well settled.
Both parties refer to and rely upon the judgment of Debelle J in Ceneavenue Pty Ltd v Martin[8] in which his Honour when referring to R232 of the 2006 Rules said:
While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant, and the second is whether the test is materially different from the test of a real question to be tried. The fact that the expression “no reasonable basis” is used in both paras (a) and (b) of r 232(2) suggests that the same test applies both when considering whether there is no reasonable basis for defending the plaintiff’s claim and when considering whether there is no reasonable basis for the claim against the defendant. The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.
…
For these reasons, r 232(2)(a) does not represent a significant departure from the previous practice in relation to an application for summary judgment by a plaintiff on the ground that the defendant has no arguable defence. On an application for summary judgment by a plaintiff, the court will examine whether the asserted defence is real or fanciful. It will consider whether the defence is bona fide. It will assess whether the defendant has a real as opposed to a fanciful case. It will have regard to the injunction in Fancourt which is in similar terms to that in Agar v Hyde. The applicant for summary judgment must show that it is clear that the other party has no arguable case. The test does not require the court to determine whether the defendant will succeed. Instead, the court must consider only whether the ground or grounds relied on by the defendant are reasonably arguable. The test in r 232(2)(a) is not, I think, materially different from the test whether there is a real question to be tried.
[8] (2008) 106 SASR 1 [81], [82].
The reference by his Honour to Fancourt is a reference to the High Court’s Statement in Fancourt v Mercantile Credits Ltd:[9]
The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
[9] (1983) 154 CLR 87 [99].
The Council also refer to and rely upon Spencer v The Commonwealth of Australia[10] where the High Court said:[11]
…Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law…
[10] (2010) 241 CLR 118.
[11] [25].
In Bradman v Allens Arthur Robinson[12] Kourakis J (as he then was) discussed the principles governing summary judgment. His Honour referred[13] to Three Rivers District Council v Bank of England (No 3)[14] and the judgment of Lord Hope where his Lordship said:
It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.
[12] (2009) 103 SASR 438.
[13] Ibid [26].
[14] [2003] 2 AC 1 [95].
Issues and Documents relied upon
The parties have identified three issues for determination:
1Whether there a one single contract or two;
2Whether under the terms of the contract(s) a three-year limitation period applies; and
3Whether a cap on damages applies?
Tonkin reads and relies upon the affidavit of Adam Scott Rosser sworn 9 April 2020, filed 15 April 2020[15] as well as its written submissions.
[15] FDN17.
The Council reads and relies upon two affidavits of Stephen Bradley Williams, the first sworn 26 May 2020 and filed 28 May 2020[16] (‘First William Affidavit’) and the second sworn and filed 25 June 2020[17] (Second William Affidavit) as well as its written submissions.
[16] FDN19.
[17] FDN22.
In its written submissions, Tonkin objected to parts of the Second Williams Affidavit being received into evidence on the basis that the matters deposed to by Mr Williams were inadmissible. At the hearing, Mr Duggan QC whilst not abandoning the objections did not press them. I note that in its written submissions, Tonkin submits in the alternative that the parts to which objection is taken should not be relied upon by the Court as evidence of the truth of the matters but as a submission on behalf of the Council. Further, Tonkin did not object to the exhibits to the Second Williams Affidavit being received into evidence as business records of both the Council and Tonkin, subject to relevance.
I will receive the Second Williams Affidavit into evidence including those parts to which objection is taken. As to those parts, I will treat them not as evidence of the truth of the matters deposed to but as a submission on behalf of the Council. I will receive the exhibits to the Second Williams Affidavit as business records of the Council and Tonkin.
Ultimately however, as will become apparent, apart from the history, little turns on the matters raised in the Second Williams Affidavit.
First Issue - Was there a single Contract?
This issue does not go to the question of whether the Court should order summary judgment but is pursued because in its application, Tonkin seeks declarations in terms of paragraphs 29.4.1, 29.4.2 or 29.4.3 of its defence filed 15 May 2019. Those paragraphs provide:
29.4.1Tonkin is discharged from all liability in relation to or arising out of the Services and the Contract;
29.4.2In the alternative, Tonkin’s liability, if any, is limited to $300,000 (all inclusive); and
29.4.3In the further alternative, Tonkin’s liability, if any, is limited to the cost of having the Services performed again.
The declarations sought in paragraphs 29.4.2 and 29.4.3 are not matters which are related to the issue of summary dismissal. The only declaration that goes to whether an order for a summary dismissal should be made is the declaration sought in paragraph 29.4.1.
With respect, I do not understand how answering this issue at this stage will determine if the declaration in paragraph 29.4.1 of Tonkin’s defence should be made, given that any contractual limitation provision, if it applies, may have expired in the circumstances of this matter irrespective of the number of contracts.
On the material available to me, I am unable to determine whether there is one contract or two and that question should await trial and the benefit of evidence as to the genesis of both contracts. Accordingly, I do not determine this issue.
Second issue – Does a three-year limitation period apply?
This issue is the central issue for the purpose of the application.
The documents said to comprise the December 2012 contract, excluding for the purposes of this discussion the January transaction, are variously according to:
1The Council:[18]
a)A letter from Tonkin to the Council dated 4 December 2012 and an accompanying short form contract;[19]
b)The Council’s purchase order number 25238 dated 10 December 2012 and the accompanying terms and conditions of contract;[20] and
c)An email from Mr Heath Sandland of Tonkin to Mr Geoff Hood of the Council dated 20 December 2012.[21]
2Tonkin – the documents identified at paragraphs 1(a) and (b) above only.
[18] Second Statement of Claim [13].
[19] Exhibit ASR 1 to the Rosser Affidavit, pp 9-13.
[20] Ibid, pp 14-15.
[21] Ibid, p 16.
At the heart of this issue is clause 8 of the document titled ‘Short Form Contract’.[22] That document accompanied Tonkin’s letter to the Council dated 4 December 2012[23] in which it is described as Tonkin’s ‘Proposed terms and conditions’. That letter concludes with a paragraph headed:
[22] Ibid, p 13.
[23] Ibid, pp 9-12.
Terms and conditions of engagement
We propose to undertake this project in accordance with Consult Australia Short Form Contract – Agreement for Provision of Consulting Service Version 6 dated March 2010 which is attached. Please return a signed copy of this agreement with your instruction to proceed. This proposal is open for acceptance for a period of 30 days.
There is no dispute that the Council issued purchase order number 25238 dated 10 December 2012 to Tonkin (‘First Purchase Order’). Tonkin alleges in its defence that by issuing the First Purchase Order, Council accepted Tonkin’s proposal set out in its letter dated 4 December 2012.
Accompanying the First Purchase Order is a document titled ‘Terms and Conditions of Contract’, clause 1 of which reads:
1. CONTRACT
These conditions together with any specifications (‘the Specification’) provided by Council in connection with the supply of the goods or services (‘the Materials’) and the attached order shall constitute the contract documents (‘The Contract’) and the entire terms of the agreement.
Clause 10 reads:
10. WARRANTY
The Contractor warrants that all of the Materials delivered to the Council:
10.1 will conform to the relevant description of the same contained in the Contract;
10.2 shall be of good merchantable quality and for the known purpose for which it is sold;
10.3 are new (unless specified);
10.4 are free from all liens and encumbrances and the Contractor has a good marketable title thereto;
10.5 shall be delivered by the due delivery date specified on the attached order.
These warranties are in addition to any warranty or guarantee provided by the Contract in respect of the relevant element of the Materials or implied by law.

The First Purchase Order gives as its reference Tonkin’s letter dated 4 December 2012, and cites Tonkin’s letter reference. It identifies a product code ‘100034’ however there is no evidence as to what that code refers.
Tonkin’s Submissions
Clause 8 of the Short Form contract provides:
To the maximum extent permitted by law:
a)   subject to paragraphs (b), (c) and (d) below, the Consultant’s liability to the Client arising out of or in connection with this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, shall be limited in aggregate to the amount specified in the accompanying letter or $300,000, if no amount is stated in the letter.
b)   …
c)   The Consultant shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the period specified in the accompanying letter, or if no date is specified, on the expiration of 3 years from the completion of the Services.
d)   …
Tonkin refers to and relies on Amcor Limited v Peter J Ramsay & Associates Pty Ltd.[24]
[24] [2018] VSC 75.
In Amcor, the defendant, an environmental consultant, applied for summary dismissal of a claim which had been brought by Amcor and another plaintiff, Amcor Packaging.
The plaintiffs alleged Ramsay had been negligent in failing to identify asbestos on the plaintiffs’ site. Claims were brought in contract, tort and under the Australian Consumer Law.
The defendant relied on a limitation clause in precisely the same terms as clause 8(c) of the Short Form Contract (it is likely it is the same document but the judgment does not identify if that is the case or not).
In determining the application, Kennedy J went through each of the pleaded causes of action. In relation to clause 8(c) her Honour found that there were conflicts in the evidence before her as to whether there were subsequent Short Form Contracts entered into between the parties. Accordingly, her Honour could not be satisfied that was not the case which in turn affected when the three-year limitation period expired.
Further, as part of her Honour’s consideration, she addressed the question of whether the second plaintiff, Amcor Packaging was a party to the contract in question. Her Honour referred[25] to Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd[26] where the High Court said that where ambiguity arises in a contract, it may be necessary to have recourse to events, circumstances and matters external to the contract. Under those circumstances, her Honour held that it was not appropriate for a court to resolve a question of construction without hearing relevant evidence at trial and that to make orders summarily dismissing the plaintiffs’ claim in such circumstances gave rise to a serious risk of injustice to the plaintiffs.
[25] Ibid [72]-[73].
[26] (2015) 256 CLR 104.
As to clause 8(1)(c), Tonkin submits that its Services are those defined in clause 1 of the Short-Form Contract as:
… The Consulting Services described in the accompanying letter together with such other services as may be agreed from time to time (the ‘Services’).
Tonkin continues by submitting that what is in issue is whether the ‘Services’ were completed more than three years before these proceedings were commenced on 23 November 2018, ultimately submitting that the services were completed on or before the date Tonkin issued the Certificate of Final Completion dated 31 July 2015[27] which was issued by Tonkin to Schwarz.
[27] Exhibit ASR 8 to the Rosser Affidavit.
I do not know what form of contract was entered into between Council and Schwarz but it is clear from the terms of the document that the certificate was issued under that contract.
Tonkin refers to the minutes of a Site Meeting at which representatives of Schwarz and Council were present held 4 March 2014.[28] Those minutes record at item 2.1 that:
All earthworks have been completed. The date of the meeting and walkover, i.e. 4 March 2014, is considered practical completion. All remaining actions, i.e. hydroseeding and the necessary corrective actions as determined during walkover, will be undertaken within contractor’s defects liability period (12 months).
[28] Exhibit ASR 5 to the Rosser Affidavit.
Tonkin also refers to the Certificate of Practical Completion issued to Schwarz, dated 4 March 2014.[29] Again, that is a document issued under the contract between the Council and Schwarz. By itself, these documents do not establish if the Services to be provided by Tonkin had been completed.
[29] Exhibit ASR 7 to the Rosser Affidavit.
Finally, Tonkin refers to its letter to the Council dated 24 June 2014 in which Tonkin states that the defects liability period (under the contract between the Council and Schwarz) ends on 3 June 2015.
Tonkin invites the Court to find that on the basis the documents to which it has referred, Tonkin’s Services were completed by 31 July 2015, i.e. the date the Certificate of Final Completion was issued by Tonkin to Schwarz.
Council’s Submissions
The Council submits that an alternative construction of clause 8(c) to that put forward by Tonkin is that the clause operates such that if no defect or deficiency appears in the Works within three years of the Certificate of Completion being issued, Tonkin is deemed to be discharged from any liability.[30] I assume that the reference in the Council’s Written Submissions to ‘the Certificate of Completion’ is a reference to the ‘Certificate of Final Completion’ exhibited to Mr Rosser’s Affidavit.[31]
[30] Council’s Written Submissions [12].
[31] Exhibit ASR 8 to the Rosser Affidavit.
The Council also submits that if the work done by Tonkin was in breach of its contractual obligations or its duty of care then the services were never completed.
It submits further that there is an issue as to which of the terms govern the contract(s).
The Council refers to Darlington Futures Ltd v Delco Australia Pty Ltd[32] where the High Court said in relation to both limitation and exclusion clauses:
These decisions clearly establish that the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. Notwithstanding the comments of Lord Fraser in Ailsa Craig (31), the same principle applies to the construction of limitation clauses. As King C.J. noted in his judgment in the Supreme Court, a limitation clause may be so severe in its operation as to make its effect virtually indistinguishable from that of an exclusion clause. And the principle, in the form in which we have expressed it, does no more than express the general approach to the interpretation of contracts and it is of sufficient generality to accommodate the different considerations that may arise in the interpretation of a wide variety of exclusion and limitation clauses in formal commercial contracts between business people where no question of the reasonableness or fairness of the clause arises.
[32] (1986) 161 CLR 500 [510].
It submits Amcor Limited v Peter J Ramsay & Associates Pty Ltd does not assist Tonkin. I accept that submission. In my view Amcor highlights the care that must be taken on an application such as this where there are issues going to the inter-relationship between various terms and conditions.
Consideration
The Short Form contract attached to Tonkin’s letter dated 4 December 2012 has been signed by Mr Hood for the Council and it seems someone on behalf of Tonkin although I do not know who that person is. Clause 8(1)(c) of the Short Form Contract, has a number of parts:
First, it provides that Tonkin ‘shall be deemed to have been discharged from all liability in respect of the Services whether under contract, tort, in equity, under statute or otherwise…’.
That passage begs the question that if there is a discharge of liability, then presumably there must have been a liability from which Tonkin is discharged. That has yet to be determined.
Second, the clause continues ‘at the expiration of the period specified in the accompanying letter[33] or if no date is specified on the expiration of three years from the completion of the Services.
[33] There is no period specified in Tonkin’s letter dated 4 December 2012.
On its face, the ‘Terms and Conditions of Contract’ attached to the First Purchase Order relates to the provision of ‘goods or services’ which is defined as ‘Materials’. Since the ‘Terms and Conditions of Contract’ attached to the First Purchase Order deal with both goods and services, its clauses are necessarily somewhat obtuse but are capable of being read in context insofar as services are being considered.
The question is when the Services were completed.
Assuming for the purposes of this application only, that the Services were completed on 31 July 2015 (which I emphasise I do not find), I accept the Council’s submission that there is an issue over which terms guide the contract(s). In particular, there is a question as to how the warranty provision in clause 10.1 of the Terms and Conditions of Contract attached to the First Purchase Order fit with the Short Form contract (if at all).[34]
[34] T53.12-26.
In my view, that issue is a matter that will require evidence as to the factual matrix surrounding the formation of the relevant contract or contracts.
Further, I consider without deciding, that the alternative construction advanced by the Council is not without merit and indeed, depending on how it is that the contractual terms interrelate with the Terms and Conditions of Contract attached to the First Purchase Order, if at all, there is an ambiguity in the wording of the clause. In particular the use of the expression ‘discharged from all liability’ either presupposes an existing liability which may or may not have been found to exist or alternatively which may have been alleged within three years from completion of the Services (whenever that may have been) or alternatively represents a complete discharge from any liability whether past, present or future. That will require the Court to consider the circumstances addressed by the contract(s) and the commercial purpose or objects to be secured by the contract(s).
The Council advances a claim in Contract, Tort and under the Australian Consumer Law.
Insofar as the claim in Contract and Tort are concerned, I am satisfied that there is a reasonable basis to advance a claim. As to the claim under the Australian Consumer Law, it is alleged by the Council that in an email dated 20 December 2012 from a representative of Tonkin to a representative of the Council, Tonkin represented that the Remediation Design would meet certain requirements. It is alleged that the Council relied on the representation in continuing to deal with Tonkin and that the representation was misleading or deceptive or likely to mislead or deceive contrary to s 18 of Schedule 2 to the Australian Consumer Law.
Given the way the claim has been pleaded in the Second Statement of Claim, there are significant difficulties with this plea. In view of the Council’s concession that the Second Statement of Claim should be struck out with leave to re-plead, I consider the appropriate course is not to order summary dismissal of this part of the claim but to allow the Council to address the difficulties with the cause of action as part of re-pleading the Statement of Claim.
Third Issue – Does a cap on damages apply?
This issue does not go to the question of whether there should be an order for summary dismissal.
In my view, it is inappropriate for the Court to provide an opinion on this point in an application for summary dismissal. Under those circumstances I decline to determine that issue but in any event, even were I persuaded to do so, for the same reasons I have advanced in relation to issue two, I do not consider that question can be answered without receiving evidence as to the genesis of the contract(s). This is particularly the case if, as the Council submits, there are two contracts that may have an impact on application of the damages cap in clause 8(a) of the Short Form Contract which I have set out above. Further, there is a question of how that clause co-exists, if at all, with the Terms and Conditions of Contract which are attached to the Council’s First Purchase Order and in particular the warranties contained in clause 10 of the document.
Conclusion
In the circumstances, I will order:
1The Council’s Second Statement of Claim filed 12 February 2019 be struck out;
2The Council have leave to file and serve a Third Statement of Claim;
3Tonkin’s Interlocutory Application filed 15 April 2020[35] be dismissed;
[35] FDN 18.
4I will hear the parties as to the date by which the Council is to file a Third Statement of Claim and the question of costs.