ALLSTATE Plumbing Pty Ltd v Crouch Developments Pty Ltd [No 5]
[2012] WADC 145
•12 OCTOBER 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ALLSTATE PLUMBING PTY LTD -v- CROUCH DEVELOPMENTS PTY LTD [No 5] [2012] WADC 145
CORAM: REGISTRAR KINGSLEY
HEARD: 31 AUGUST 2012
DELIVERED : 12 OCTOBER 2012
FILE NO/S: CIV 3314 of 2008
BETWEEN: ALLSTATE PLUMBING PTY LTD
Plaintiff
AND
CROUCH DEVELOPMENTS PTY LTD
Defendant
Catchwords:
Practice - Application to strike out paragraphs of substituted defence and counterclaim
Legislation:
Nil
Result:
Application allowed
Leave to replead refused
Representation:
Counsel:
Plaintiff: Mr M Herron SC
Defendant: Mr B Wheatley
Solicitors:
Plaintiff: Lewis Blyth & Hooper
Defendant: Mossensons
Case(s) referred to in judgment(s):
Mehta v Commonwealth Bank of Australia (1990) ATPR 51,418
Tobin v Ezekiel [2008] NSWSC 1108
REGISTRAR KINGSLEY: Before me are two applications by the plaintiff:
(1)A chamber summons dated 4 July 2012 seeking orders pursuant to O 14 Rules of the Supreme Court and seeking to strike out par 7, 7A and 7B of the defendant's 29 November 2011 substituted defence and counterclaim (the substituted defence and counterclaim);
(2)A chamber summons dated 13 August 2012 seeking leave to amend the statement of claim.
On 31 August 2012 I gave judgment for the plaintiff on its O 14 application. In my opinion, the chamber summons dated 13 August seeking leave to amend the statement of claim falls away.
Turning to the plaintiff's application to strike out par 7, 7A and 7B of the substituted defence and counterclaim, and doing the best I can, at last count this is the sixteenth amendment to the defence and counterclaim.
The plaintiff's claim arose from a subcontract agreement between the defendant and the plaintiff. The defendant was the head contractor with a company D & M (Australia) Pty Ltd. The defendant was engaged by D & M (Australia) Pty Ltd to construct apartments on a development site owned by D & M (Australia) Pty Ltd. Paragraph 2 of the substituted defence and counterclaim states that '… D & M (Australia) Pty Ltd as the owner and developer ('the owner and developer') engaged the defendant as builder …'. The defendant engaged the plaintiff to undertake the plumbing work on the apartments.
The defendant pleads at par 6 that there were implied terms in the subcontract agreement with the plaintiff that, amongst other things, the plaintiff's costs were to be reasonably and properly incurred, and that the plaintiff would carry out the plumbing work with reasonable skill and care.
Paragraph 7 of the substituted defence and counterclaim pleads that the plaintiff in breach of the implied terms installed incorrect sized water pipes, incorrect water meters, and water and drainage pipes without acoustic lagging in breach of Australian Standards. Paragraph 7 pleads that these had to be replaced or rectified by the owner or developer at a cost of $73,376.80.
Paragraph 7A seems to refer to the four invoices pleaded by the plaintiff in its statement of claim. Paragraph 7A pleads that the amount claimed in the invoices were not reasonably and properly incurred. The pleading goes on to say that the plaintiff failed to provide any evidence and information in support of the four invoices.
Paragraph 7B pleads that by reason of the matters referred to, the plaintiff is not entitled to any payment or that the work and labour and materials were worth far less than the amount sought to be recovered by the plaintiff.
It is plainly obvious from a cursory reading of par 7 that there is no loss pleaded by the defendant. The loss is pleaded as that of the owner and developer. Owner and developer is a defined term in the pleading and means D & M (Australia) Pty Ltd.
Paragraph 7 clearly then discloses no cause of action, either as a cause on the part of the defendant or as a defence to the plaintiff's claim.
Paragraph 7A in my opinion is embarrassing. There is no particularisation as to how the amount claimed was not reasonably and properly incurred. Further, the pleading at par 7 is embarrassing in that the defendant has not pleaded any contractual requirement that the plaintiff was obliged to provide evidence and information in support of the four invoices. Paragraph 7A of the substituted defence and counterclaim is struck.
In my opinion par 7B is embarrassing. The defendant has not provided any particulars for the contention that the work, labour and materials were worth far less than the amount sought. Further, the ground for par 7B has fallen away with the striking of par 7 and par 7A of the substituted defence and counterclaim. Accordingly, I am of the opinion that para.7B ought to be struck.
In the ordinary course of events, the defendant would replead the defence and counterclaim. However, as I have mentioned, this appears to be the sixteenth version of a defence and counterclaim.
The time has passed when a litigant can exhaust not only its resources, but also the resources of the opposing party, and strain the resources of the court in the conduct of litigation. It is no longer correct to say that money, as compensation for costs thrown away, will satisfy the dictates of justice:Mehta v Commonwealth Bank of Australia (1990) ATPR 51,418.
It is apparent from the nature of the pleading that the pleas in par 7, 7A and 7B must have been on the explicit instruction of the defendant. The plea at par 7 is so wholly devoid of a cause that a properly advised litigant would not promote such a plea. I can only assume there is a litigious obsession on the part of the defendant: Tobin v Ezekiel [2008] NSWSC 1108.
This litigation is not one that is being conducted quickly or cheaply. The litigation is not just to the plaintiff. Accordingly, whilst a harsh sanction, I am of the opinion that leave for the defendant to bring in a further amended defence in relation to the issues raised in par 7, 7A and 7B is refused.
I will hear counsel on the question of costs and the further programming of this matter.
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