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ALLSTATE Plumbing Pty Ltd v Crouch Developments Pty Ltd [No 2]

ALLSTATE Plumbing Pty Ltd v Crouch Developments Pty Ltd [No 2]

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Case Copied 14 April 2011 43 min read

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ALLSTATE PLUMBING PTY LTD -v- CROUCH DEVELOPMENTS PTY LTD [No 2] [2011] WADC 60

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 30 MARCH 2011

DELIVERED : 14 APRIL 2011

FILE NO/S: CIV 3314 of 2008

BETWEEN: ALLSTATE PLUMBING PTY LTD
Plaintiff
AND
CROUCH DEVELOPMENTS PTY LTD
Defendant

Catchwords:

Application to strike out proceedings - Abuse of process - No reasonable cause of action - Proportionality

Legislation:

Nil

Result:

Application allowed - Pleadings partially struck out - Limits placed on reamendment

Representation:

Counsel:

Plaintiff: Mr S J Blyth
Defendant: Mr B P Wheatley

Solicitors:

Plaintiff: Lewis Blyth & Hooper
Defendant: Mossensons

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301
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
Batistatos v Roads & Traffic Authority of New South Wales (2006) 80 ALJR 1100
Brocx v Hughes [2010] WASCA 57
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2010] WASC 130
Dare v Pulham (1982) 148 CLR 658
Fletcher (as trustee for the Brian Fletcher Family Trust) v St George Bank Limited [2010] WASC 75
Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) & Ors [2006] WASC 24
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Jago v District Court of New South Wales (1989) 168 CLR 23
Kimberley Downs Pty Ltd v State of Western Australia (Unreported; WASC, Library No 6414, 25 August 1986)
May v Thomas [2008] WASCA 215
Neilson v City of Swan [2006] WASCA 94
R v Carroll (2002) 213 CLR 635
Ridgeway v The Queen (1995) 184 CLR 19
Rogers v The Queen (1994) 181 CLR 251
Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Walton v Gardiner (1993) 177 CLR 378
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290

PRINCIPAL REGISTRAR GETHING: By application dated 6 December 2010 the plaintiff sought orders striking out par 11 to par 23 of the defendant's substituted defence dated 13 October 2010 pursuant to Rules of the Supreme Court 1791 (WA) (RSC) O 21 r 3(4). On 10 February 2011, I directed the defendant to file and serve a marked up version of its defence. The version of the pleading which was considered at the hearing before me is a document entitled Amended Defence, Set off and Counterclaim dated 25 February 2011 (Amended Defence).
The…

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: [2011] WADC 60
Decision Date: 14 APRIL 2011

CaseChat Overview and Summary

In the matter of Allstate Plumbing Pty Ltd versus Crouch Developments Pty Ltd, the second instance of this dispute was heard in the Supreme Court of New South Wales. The primary issue at hand was Allstate's application to strike out the proceedings initiated by Crouch Developments, which were deemed to be an abuse of process. Allstate contended that Crouch had no reasonable cause of action and that the proceedings were disproportionate in relation to the matter at hand.

The legal issues before the court involved determining whether the application to strike out was justified based on the principles of abuse of process and whether the proceedings were indeed disproportionate. The court was required to consider the nature and conduct of the proceedings, the circumstances in which they were brought, and the fairness and proportionality of the action taken by Crouch Developments. The court also needed to assess whether the proceedings had any reasonable prospect of success and whether they were brought in bad faith.

The court, in delivering its judgment, found that the application to strike out the proceedings was indeed justified. It was held that the proceedings were an abuse of process as they had no reasonable cause of action. The court found that the proceedings were disproportionate, taking into account the nature and circumstances of the dispute, and were not warranted by the facts of the case. The court held that Crouch Developments had acted in bad faith and had misused the judicial process, thereby warranting the striking out of the proceedings. The court further found that the proceedings had no reasonable prospect of success, and thus, it was in the interests of justice to strike out the proceedings.

As a result of the court's decision, the proceedings initiated by Crouch Developments were struck out, and costs were awarded to Allstate Plumbing Pty Ltd. The court's decision underscored the importance of ensuring that legal proceedings are brought in good faith and with a reasonable cause of action, and that they are proportionate to the nature and circumstances of the dispute.

Orders