Big Mike Construction Pty Ltd v ML Global Pty Ltd - [2023] NTLC 27

CITATION: Big Mike Construction Pty Ltd v ML Global Pty Ltd [2023] NTLC 27

PARTIES:

BIG MIKE CONSTRUCTION PTY LTD
(ABN 78 616 210 845)

Plaintiff

v
ML GLOBAL PTY LTD (ABN 12 150 097 242)

First Defendant

And
Peter Dunstan

Second Defendant

TITLE OF COURT:	LOCAL COURT
JURISDICTION:	CIVIL
FILE NO(s):	2022-01093-LC
DELIVERED ON:	24 November 2023
DELIVERED AT:	Darwin
HEARING DATE(s):	30 October and 21 November2023
DECISION OF:	Judge O’Loughlin
CATCHWORDS:

Pleadings – Particulars – Amendment – Withdrawal of Admissions

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REPRESENTATION:

Counsel:

Plaintiff: Z Cleal
First Defendant: Ms Kelly
Second Defendant: J Tippett QC

Solicitors:

Plaintiff: Clayton Utz
First Defendant: Bryson Kelly Legal
Second Defendant: Maleys

Decision category classification:	B
Decision ID number:	[2023] NTLC 27
Number of paragraphs:	17

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IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. 2022-01093-LC

BETWEEN:
Bike Mike Construction Pty Ltd
Plaintiff

AND:
ML Global Pty Ltd

First Defendant

Peter Dunstan

Second Defendant

REASONS FOR DECISION

(Delivered 24 November 2023)

JUDGE O’LOUGHLIN

Introduction

1.        This is the second interlocutory dispute over a relatively modest claim.
2.        On the last occasion I ordered the Plaintiff to provide further and better particulars and it did so via letter.
3.        The First Defendant requested the Plaintiff include the particulars in an amended Statement of Claim but the Plaintiff declined. The previous solicitors for the First Defendant filed an application seeking an order compelling the Plaintiff to so amend.

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4. Additionally, the two Defendants have applied to amend their defences and the Plaintiff objects alleging withdrawal of admissions.

Particulars by Letter

5. Particulars are usually incorporated into pleadings, but occasionally particulars are provided by correspondence only.
6. In my earlier orders I only required the Plaintiff to provide particulars and I did not order they be filed. In these circumstances, and where there can be no doubt as to particulars relied on by the Plaintiff, I will not order the Plaintiff to incorporate those particulars in the Statement of Claim.

7.	White v Overland Allsop J:

In doing so I am cognizant of the warning by Allsop J. in [2001] FCA 1333, uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly”.
8. I accept the logic of the above, but in the circumstances referred to in [6] I will not order an amendment on this occasion.

Second Defendant’s Application to Amend Defence

9.        The Plaintiff objects to the proposed amended Defence filed by the Second Defendant claiming the Second Defendant is seeking to withdraw admissions.
10.      The Statement of Claim alleges at paragraph 5 that there was a contract between Tiwi Enterprises Limed and the First or Second Defendants where the work was described as “supermarket works”.
11.     The Second Defendant originally pleaded he was agent for another entity who subcontracted with the Plaintiff such that it was to be perform the “supermarket works”. This is a pleading that the entirety of…

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: [2023] NTLC 27
Decision Date: 24 November 2023

CaseChat Overview and Summary

Big Mike Construction Pty Ltd brought an action against ML Global Pty Ltd and Peter Dunstan, alleging breach of contract and associated losses. The Local Court in Darwin, Northern Territory, heard the matter. The court was required to determine two primary legal issues: whether the Plaintiff should be compelled to amend its Statement of Claim to include particulars provided by letter, and whether the Defendants should be allowed to amend their defences to withdraw prior admissions.

The court first considered whether particulars provided by letter could be accepted without requiring their inclusion in the Statement of Claim. It found that while particulars are typically incorporated into pleadings, they may also be provided by correspondence if there is no doubt about which particulars are being relied upon. Given that the Plaintiff had already provided the necessary particulars by letter and the court was satisfied with their clarity, it declined to order the Plaintiff to amend its Statement of Claim. However, the court cautioned against the practice of relying on correspondence to provide particulars, noting the potential for disputes over what was always in issue.

The court then examined the Second Defendant's application to amend his Defence to withdraw admissions regarding the scope of the work to be performed by the Plaintiff. The court found that the amendment sought to contradict prior admissions and lacked a sensible explanation, as required by established case law. Consequently, the court refused the Second Defendant's application to amend his Defence. The First Defendant's application to amend its Defence was left pending further submissions.

The court dismissed the First Defendant's application to compel the Plaintiff to amend its Statement of Claim and refused the Second Defendant's application to amend his Defence. Costs were reserved for further determination.

Orders