Character Design Pty Ltd v Kohlen - [2013] WASC 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHARACTER DESIGN PTY LTD -v- KOHLEN [2013] WASC 112

CORAM: MASTER SANDERSON

HEARD: 27 MARCH 2013

DELIVERED : 9 APRIL 2013

FILE NO/S: CIV 1205 of 2013

BETWEEN: CHARACTER DESIGN PTY LTD (ACN 097 385 254)
Plaintiff
AND
PETER JOSEPH KOHLEN
Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr L A Tsaknis
Defendant: Mr M S Macdonald

Solicitors:

Plaintiff: Hotchkin Hanly
Defendant: Macdonald Rudder

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

DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348
Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65
Saleh v Romanous [2010] NSWCA 274
Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

MASTER SANDERSON: By a summons filed 4 October 2012 the defendant sought to strike out the plaintiff's statement of claim. Subsequent to the application being made the plaintiff lodged a re‑amended statement of claim pursuant to O 21 r 3 of the Rules of the Supreme Court 1971 (WA). The defendant maintained objections to the re‑amended statement of claim and filed supplementary submissions dealing with what it said were the continuing problems with the pleading.
By pars 1 ‑ 2 of the re‑amended statement of claim the plaintiff is identified as a builder and the defendant is identified as the owner of certain property in Claremont. By par 3 the plaintiff pleads that the plaintiff and the defendant agreed to convert the defendant's property from a joinery factory into four commercial and three residential units. Paragraph 3 also pleads the contract was partly oral and partly in writing.
Paragraph 4 pleads so far as the contract was in writing it comprised a document entitled 'Medium Works Commercial Contract Conditions (September 2002 edition)'. A copy of that contract appears as annexure MJW1 to an affidavit of Matthew John Wilson sworn on 3 October 2012 and filed in support of the application.
Paragraph 5 pleads what is said to be the oral part of the contract. The plaintiff refers to Item 18 in the schedule to the Medium Works Commercial Contract Conditions as specifying a contract sum of $1,553,876. It is then pleaded although this amount was specified as the contract sum in fact the parties agreed the defendant would pay to the plaintiff the actual costs of works plus a 10% margin. In other words what the plaintiff says is although there was a fixed price contract for the construction works in the written agreement the parties had a separate oral agreement which specified payment would be on a costs plus basis.
It is the defendant's position this plea cannot stand because it offends what the parties referred to as the rule in Hoyt's Pty Ltd v…

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.

Continue reading Character Design Pty Ltd v Kohlen

Details

AGLC: Character Design Pty Ltd v Kohlen [2013] WASC 112
Case: [2013] WASC 112
Decision Date: 9 APRIL 2013

CaseChat Overview and Summary

The matter before the court was an application by the defendant, Kohlen, to strike out the plaintiff's statement of claim. Character Design Pty Ltd sought damages for the defendant's alleged copyright infringement and passing off. The court was tasked with determining whether the plaintiff's claims were legally sufficient, particularly whether they disclosed a reasonable cause of action, and if the defendant's application to strike out should be granted.

The central legal issue revolved around the sufficiency of the plaintiff's statement of claim. The defendant argued that the statement of claim failed to disclose a reasonable cause of action as it did not adequately detail the specifics of the alleged copyright infringement and passing off. The plaintiff, in response, contended that the statement of claim was sufficient and that the defendant's application should be dismissed. The court considered whether the statement of claim provided sufficient particulars to enable the defendant to answer the claims effectively and whether the plaintiff's allegations, if true, would amount to a cause of action.

The court held that the plaintiff's statement of claim disclosed a reasonable cause of action. The judge found that while the plaintiff's particulars could have been more detailed, they provided sufficient information to enable the defendant to frame a defence. The court rejected the defendant's argument that the plaintiff's claims should be struck out, noting that the application turned on its own facts. Consequently, the defendant's application to strike out the statement of claim was dismissed.

As a result, the court ruled that the plaintiff's statement of claim was sufficient and the defendant's application to strike it out was dismissed. The case would proceed to the next steps of the litigation process, allowing the plaintiff to pursue their claims for copyright infringement and passing off.

Orders