C v and R J Wride Pty Ltd v Roadstone Quarries Pty Ltd - [2005] WADC 230

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: C V & R J WRIDE PTY LTD -v- ROADSTONE QUARRIES PTY LTD [2005] WADC 230

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 21 NOVEMBER 2005

DELIVERED : 30 NOVEMBER 2005

FILE NO/S: CIV 2618 of 2004

BETWEEN: C V & R J WRIDE PTY LTD
Plaintiff
AND
ROADSTONE QUARRIES PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike out parts of defence - Turns on its facts

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiff: Mr M J Feutrill
Defendant: Mr P A Kyle

Solicitors:

Plaintiff: Hudson, Hemming & Goodman
Defendant: Kyle & Company

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: By its claim the plaintiff seeks to recover the cost of the provision of services to the defendant. In the statement of claim it identifies two agreements under which it asserts that it is entitled to recover the value of particular services at specified rates according to the number of hours over which they were provided. It alleges that the services provided in accordance with the agreement were the subject of a series of invoices. In its defence the defendant puts its version of the agreements and alleges that neither the services performed by the plaintiff nor its invoices reflect the agreements.
The plaintiff carries the onus of persuasion on its application to strike out parts of the defence.
At par 3 of its defence the defendant specifies and designates the agreements to which it makes reference throughout the balance of the pleading. At that point it pleads to the corresponding allegation of the plaintiff in part by admission. The first issue raised by the plaintiff is that the defendant has purported to admit allegations not made by the plaintiff, in particular that the plaintiff was its subcontractor and that the plaintiff would provide earthworks and road construction services. As to the first of those points, the statement of claim provides no scope upon which to find that it was open to the defendant to so admit. As to the second, at best I could speculate that the particular services correspond with the plaintiff's allegation of the supply and use of plant and machinery. Ultimately the purpose of pleading is the expression of the issues to be addressed at trial. There is no reason why the court should not demand that the contest be clearly established.
In the same paragraph the defendant introduces allegations of material fact reference to agreements partly written and partly oral. The second issue raised by the plaintiff is that to the extent that the agreements were oral the defendant is obliged to justify the plea and to the extent that it was written, to identify the document. In my opinion it is appropriate to consider that such detail be pleaded in response to the statement of claim.
The third issue raised by the plaintiff is that the defendant ought to have specified the services required to be performed under each agreement. At par 12 the defendant pleads that the plaintiff has refused or failed to provide or complete the services to be performed under one of the agreements. At neither point in the pleading does the defendant give any definition to its allegations so as to identify the plaintiff's contractual obligations.
There is good reason to strike out par 3. The consequence of that determination would have an impact on both the balance of the application and the defendant's pleading such that I suspect that the defendant would not be content to leave what would remain as a representation of its position in the action.
The plaintiff's other submissions relate to more confined aspects of the defendant's case which I will address seriatim.
At par 5 the defendant alleges that the term that it pleads at par 6 is a term of one of the agreements. Paragraph 6 pleads its head contract. The plaintiff submitted that without more, no term of the head contract would be taken to be a term of the agreement. It also submitted that contrary to par 5 the head contract precluded the engagement of subcontractors without approval of the head contractor. In my opinion for present purposes the last point is no more than interesting. In the absence of a pleading to justify the allegation it is inappropriate for the defendant to plead that the head contract was a term of the agreement.
At par 7 the defendant pleads that the plaintiff expressly or impliedly agreed to execute works for the defendant in accordance with the defendant's obligations under the head contract on the basis that at the time that the parties entered into one of the agreements the defendant provided a copy of the head contract to the plaintiff. In my opinion without more such provision would not establish the agreement for which the defendant contends.
The defendant conceded the issue raised as to par 8 of the defence.
At pars 9 and 14 the defendant pleads by reference to a time frame established by the head contract. The pleading does not specify that time frame. The plaintiff submitted that it was entitled to a commitment as to the meaning of the term. The time for performance of contractual obligations is as much amenable to variation as any other contractual term. It is evident from the balance of the pleading that the term was varied. Even if the head contract specified the term and I was satisfied that the plaintiff had access to the relevant document the plaintiff would be entitled to be informed by the pleading.
At par 17 the defendant pleads breach of the term that in the provision of the services the plaintiff would exercise care and skill. It is patent that the particulars of that allegation in pars 17.1 to 17.5 inclusive do not specify failure on the part of the plaintiff; at best they provide a context within which some unexpressed failure arose.
At par 17.7 the defendant expresses a particular of breach by reference to the plaintiff's choice use and operation of a specified survey system. The plaintiff submits that there is no pleading that it warranted the system. I would add that apart from the allegations under par 17.7 there is no allegation in the pleading as to any shortcomings in the system or the plaintiff's utilisation of it.
At par 18 the defendant expresses a condition that would apply to particular services provided by the plaintiff. That condition is expressed to apply firstly to further services and secondly to extra services which are said to form part of the plaintiff's invoices. The terms "further services" and "extra services" are neither identified nor defined. The plaintiff submits that the plea is irrelevant. In my opinion that characterisation is valid and would justify the result sought in the application.
At par 19 the defendant asserts that it has paid the full value of the services provided under the agreements. The plaintiff submitted that in the absence of any detail the pleading is no more than an unsupported conclusion. In my opinion, that is the only conclusion open upon the terms of the paragraph.
At par 28 the defendant pleads that as a result of the plaintiff's failure to provide services by the revised completion date it has incurred liquidated damages under the head contract. The revised completion date is referred to earlier in the pleading but as I have already noted, is not specified. The plaintiff submitted that there is nothing to connect the plaintiff's failure to provide services with such loss other than the allegation: in effect, that the allegation is unsupported. In my opinion that is an accurate assessment. Although the pleading draws upon the content of pars 15 to 17 which refer to the plaintiff's failure to provide services there is no basis upon which that failure could be attributed to the defendant so as to justify pleading that the defendant's loss is attributable to the plaintiff.
At par 29 the defendant alleges that it has lost the benefit under the head contract. The plaintiff makes the same submission and the result is the same.