Bexton Australia Pty Ltd v Jupiter Nominees Pty Ltd
[2005] WADC 65
•11 APRIL 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BEXTON AUSTRALIA PTY LTD -v- JUPITER NOMINEES PTY LTD [2005] WADC 65
CORAM: MACKNAY DCJ
HEARD: 29 NOVEMBER 2004
DELIVERED : 11 APRIL 2005
FILE NO/S: CIV 4616 of 1999
BETWEEN: BEXTON AUSTRALIA PTY LTD (ACN 056 516 075)
Plaintiff
AND
JUPITER NOMINEES PTY LTD (ACN 008 814 622)
Defendant
Catchwords:
Practice - Western Australia - Amendment of statement of claim - Whether leave ought be given - Turns on own facts
Legislation:
Nil
Result:
Application for leave to amend allowed
Representation:
Counsel:
Plaintiff: Mr A D Bereyne with him Mr J S Hudson
Defendant: Mr G A Rabe
Solicitors:
Plaintiff: Jackson McDonald
Defendant: Ahern & Associates
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
MACKNAY DCJ:
Introduction
The plaintiff's claim in the substituted statement of claim against the defendant is for the amount of $5,800, said to be due under an agreement or alternatively by way of restitution, and damages of $32,776.06 for breach of the agreement, together with interest thereon.
The defendant, in addition to a denial that it is obliged to pay any sum or is in breach of any agreement, says that it suffered loss as a result of the breach by the plaintiff of the agreement it says was made between the parties, and counterclaims damages.
In July 2003 the plaintiff applied for leave to amend that statement of claim.
The application was adjourned at that time and again in September 2003 at the request of the parties on the basis that a mediation between them was planned.
The plaintiff subsequently relisted the application for hearing, and after such occurred I reserved my decision.
Application
The plaintiff's application is for leave to amend the substituted statement of claim in accordance with a minute dated 17 July 2003.
In its written outline of submissions the defendant opposed the amendment in its entirety.
In his submissions at the hearing counsel for the defendant, however, eventually abandoned the opposition to part of the proposed amendment.
That disposes of the objection to pars 5, 6 and 10 of the minute, the amendment there in my view being open to the plaintiff to make and there not being discretionary reasons to refuse the same.
Objection was maintained to par 12 of the minute, which reads as follows:
"(1)Further to paragraph 5 and in the alternative to paragraphs 19 and 11, it was a further term of the Agreement, implied in law from the nature of the contract, alternatively implied in the context of the factual matrix in order to give business efficacy to the Agreement, that in the event the tender drawings and the further detailed architectural and engineering drawings supplied to the Plaintiff were not complete, the Defendant would pay the Plaintiff as an hourly rate based upon the contract price or at a reasonable hourly rate based upon rates within the industry for the time reasonably taken by it to identify, resolve and seek clarification of the aspects of drawings which were not complete.
(2)The tender drawings and further detailed architectural and engineering drawings supplied to the Plaintiff were not complete as pleaded in paragraph 11(1) and the Plaintiff was required to and did expend time to identify, resolve and seek clarification of the defects.
Particulars
Particulars of the defects and the time taken to identify, resolve and seek clarification of them are set out in the Plaintiff's Scott Schedule Annexure 'B' – Wasted Time.
(3)The rate per hour for such work calculated by reference to the contract price and or a reasonable rate per hour was $50.00.
(4)The amount due to the Plaintiff for the time reasonably taken to identify, resolve and seek clarification of the defects is $23,500.00 being 470 hours at $50.00 per hour."
In the defendant's written outline it was said the paragraph was "totally misconceived", as firstly, and to the extent it purported to be further to par 5 "it purports to imply further terms to the already implied terms pleaded" there.
Counsel further said there were "serious and fundamental differences and difficulties with (it), not the least of which is that what the plaintiff is now trying to do is plead a quantum meruit claim in relation to claims that had previously been pleaded as a claim the subject of an agreement".
As to the first objection, par 4 of the minute alleges that an agreement was made between the parties, and par 5 alleges it contained terms therein set out, such all to be implied.
It is then alleged in pars 6, and 7 that work additional to that the subject of the agreed price was done by the plaintiff, and that pursuant to the agreement, and in effect terms pleaded in par 5, the plaintiff is entitled to an additional sum of $4,150.
The additional work alleged in respect of which a payment of $4,150 is sought pursuant to pars 4, 5, 6 and 7 is, it would appear, the time said to have been taken in preparation of further drawings (see pars 5(4) and 6(3)).
In par 10 a claim is made for the same sum, in the alternative, as a claim in quantum meruit.
Particulars of the sum sought are set out in the Scott Schedule Annexure "A".
The minute in par 11 then makes another claim, for the sum of $21,357.58, on the basis of one of the terms alleged in par 5, that information supplied by the defendant would be "sufficient clear, complete and accurate … to enable the Plaintiff to prepare and provide the shop drawings", a breach thereof, and a claimed need to "expend time to identify resolve and seek clarification of the defects".
Particulars of the sum sought are set out in the Scott Schedule Annexure "B", the work being characterised as "Wasted Time".
Paragraph 12 of the minute then simply pleads, as I understand it, an alternative claim on the basis of an implied term that the defendant would under the contract pay for the wasted time, as opposed to being liable in damages for it.
In my view a plea of a term of a contract, express or implied, has no role in a pleading unless it is said to support a right of the party alleging it, or to deny a right of the opponent.
Further, there is no rule of which I am aware, nor was one asserted, which requires a party, where it wishes to rely on a number of different terms, in order to claim different forms of relief, to firstly group the terms in a common plea.
Here the plaintiff is able to plead in par 12 an additional implied term, in the alternative, and the defendant's first objection reveals a misunderstanding of the plea.
I am unable to find within par 12, or the earlier amended paragraphs, the defects ascribed to such by counsel for the defendant.
The plaintiff ought have leave to amend its substituted statement of claim in accordance with the minute.
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