Aimtek Pty Ltd v Brisbane Ship Constructions Pty Ltd - [2010] QSC 160

SUPREME COURT OF QUEENSLAND

CITATION:

Aimtek Pty Ltd v Brisbane Ship Constructions Pty Ltd [2010] QSC 160

PARTIES:

AIMTEK PTY LTD
ACN 009 679 207
(plaintiff)
v
BRISBANE SHIP CONSTRUCTIONS PTY LTD
ACN 010 621 275
(defendant)

FILE NO/S:

BS 10771 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2009

JUDGE:

Daubney J

ORDERS:

1.    The plaintiff’s application to strike out paragraph 8 of the fifth amended defence is dismissed.

2.    Within 21 days of today, the defendant shall provide the plaintiff with further and better particulars of:

      (a)   The allegation in paragraph 8(a)(iv)(B) of the fifth amended defence that the defendant was “totally reliant upon the plaintiff” as alleged in that paragraph;

      (b) The “build program” referred to in paragraph 8(a)(iv) of the fifth amended defence.

3.    The costs of and incidental to the application will be reserved.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – where the plaintiff has sued the defendant for monies alleged to be owing under a design contract – where the plaintiff claimed they provided technical and support services outside the scope of supply under the design contract at the request of the defendant – where the defendant pleads in paragraph 8 of the defence that the plaintiff made certain representations in relation to the services provided which induced the defendant to assume the plaintiff would provide the services to the defendant as part of the scope of supply under the design contract – where the plaintiff has applied for paragraph of the defence to be struck out on the grounds that no reasonable defence is disclosed, prejudice and delay, or that the pleadings are unnecessary or embarrassing – whether paragraph 8 of the defence should be struck out

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – where the plaintiff seeks, in the alternative, for the defendant to provide further and better particulars of paragraph 8 of the defence – whether the defendant should be required to provide further and better particulars

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, applied
Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104, cited
Dey v Victorian Railway Commissioners (1949) 78 CLR 62, cited
Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164, cited
Walton v Gardiner (1993) 177 CLR 378, cited

COUNSEL:

DR Cooper, SC for the plaintiff
M Johnston for the defendant

SOLICITORS:

Morrow Petersen for the plaintiff
O’Reilly Lillicrap Solicitors for the defendant

The plaintiff has sued the defendant for monies alleged to be owing under a design contract dated 23 September 2006 in relation to the construction of six vessels by the defendant for a third party.

In that regard, the statement of claim pleads:

“2.By a written…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QSC 160
Decision Date: 18 May 2010

CaseChat Overview and Summary

Aimtek Pty Ltd sued Brisbane Ship Constructions Pty Ltd for monies claimed to be owed under a design contract. Aimtek contended that it provided technical and support services beyond the scope of the contract at the request of Brisbane Ship. Brisbane Ship argued in its defence that Aimtek had made certain representations that induced it to believe the services would be part of the scope of supply under the design contract. Aimtek sought to strike out this paragraph of the defence, claiming it disclosed no reasonable defence, caused prejudice and delay, or that the pleadings were unnecessary or embarrassing. Alternatively, Aimtek sought further and better particulars of the defence.

The court considered whether paragraph 8 of the defence should be struck out or if the defendant should provide further and better particulars. The court dismissed the application to strike out the paragraph. However, the court ordered that within 21 days of the judgment, Brisbane Ship must provide Aimtek with further and better particulars of certain allegations in the defence. The costs of and incidental to the application were reserved.

In summary, the court rejected the plaintiff's application to strike out the defendant's paragraph but required the defendant to provide further and better particulars of specific allegations. The costs of the application were reserved for later determination.

Orders

Orders of the court

1. The plaintiff’s application to strike out paragraph 8 of the fifth amended defence is dismissed.

2. Within 21 days of today, the defendant shall provide the plaintiff with further and better particulars of:

(a) The allegation in paragraph 8(a)(iv)(B) of the fifth amended defence that the defendant was “totally reliant upon the plaintiff” as alleged in that paragraph;

(b) The “build program” referred to in paragraph 8(a)(iv) of the fifth amended defence.

3. The costs of and incidental to the application will be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Aimtek Pty Ltd v Brisbane Ship Constructions Pty Ltd [2010] QSC 160
PARTIES:	AIMTEK PTY LTD ACN 009 679 207 (plaintiff) v BRISBANE SHIP CONSTRUCTIONS PTY LTD ACN 010 621 275 (defendant)
FILE NO/S:	BS 10771 of 2007
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	18 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	4 December 2009
JUDGE:	Daubney J
ORDERS:	1. The plaintiff’s application to strike out paragraph 8 of the fifth amended defence is dismissed. 2. Within 21 days of today, the defendant shall provide the plaintiff with further and better particulars of: (a) The allegation in paragraph 8(a)(iv)(B) of the fifth amended defence that the defendant was “totally reliant upon the plaintiff” as alleged in that paragraph; (b) The “build program” referred to in paragraph 8(a)(iv) of the fifth amended defence. 3. The costs of and incidental to the application will be reserved.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – where the plaintiff has sued the defendant for monies alleged to be owing under a design contract – where the plaintiff claimed they provided technical and support services outside the scope of supply under the design contract at the request of the defendant – where the defendant pleads in paragraph 8 of the defence that the plaintiff made certain representations in relation to the services provided which induced the defendant to assume the plaintiff would provide the services to the defendant as part of the scope of supply under the design contract – where the plaintiff has applied for paragraph of the defence to be struck out on the grounds that no reasonable defence is disclosed, prejudice and delay, or that the pleadings are unnecessary or embarrassing – whether paragraph 8 of the defence should be struck out PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – where the plaintiff seeks, in the alternative, for the defendant to provide further and better particulars of paragraph 8 of the defence – whether the defendant should be required to provide further and better particulars Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, applied Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104, cited Dey v Victorian Railway Commissioners (1949) 78 CLR 62, cited Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164, cited Walton v Gardiner (1993) 177 CLR 378, cited
COUNSEL:	DR Cooper, SC for the plaintiff M Johnston for the defendant
SOLICITORS:	Morrow Petersen for the plaintiff O’Reilly Lillicrap Solicitors for the defendant