Cirocco Constructions Pty Ltd v Clarke - [2020] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
CIROCCO CONSTRUCTIONS PTY LTD v CLARKE & ORS
[2020] SADC 82
Reasons for Decision of His Honour Judge O'Sullivan
1 July 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CROSS-CLAIMS: SET-OFF AND COUNTERCLAIM - SET-OFF - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
There are two interlocutory applications before the Court.
The proceedings concern the construction of a residential dwelling. The applicant builder commenced proceedings against the respondent owner for unpaid progress claims. The respondent issued third party proceedings against the Architects and filed a cross-claim against the applicant for defects in, amongst other things, the external stonework. The applicant issued third-party proceedings in the cross-claim against the stone supplier.
1. On the interlocutory application filed by the respondent seeking permission to file a fifth defence and a sixth cross action and a sixth third-party statement of claim, the respondent submits that the amendments comprise new particulars and, in respect of defects, introduce one new defect.
The applicant opposes the amendments on numerous grounds. It alleges, amongst other things, deficiencies in the proposed fifth defence and sixth cross-claim and submits that the respondent expanded its case by introducing new claims.
The third-party Architect opposes the amendments on the same grounds as those advanced by the applicant and alleges that the proposed pleading seeks to add new causes of action which are statute barred.
2. On the interlocutory application filed by the applicant seeking orders that the respondent be precluded from tendering a document titled “Expert Witness Report” from Danvers.Studio-Architects or from calling any evidence from an Architect in relation to such report, the applicant submits that in producing the report and expressing his opinions, the Architect does not exercise the skills and training of an Architect, does not deploy his expertise and that the question of the quality of the stonework and in its aesthetics and colour is not a matter for an expert Architect but for the trial judge.
Held:
1. Permission is granted to the respondent to amend the fifth statement of cross-claim and fifth third-party statement of claim.
2. The applicant’s application is dismissed.
District Court Civil Rules 2006 (SA); Limitation of Actions Act 1936 (SA), referred to.
Arthur Young & Anor v Tieco International & Ors [1995] SASC 5173; Golski v Kirk (1987) 72 ALR 443; Dornan v J W Ellis and Co Ltd [1962] 1 QB 583, considered.

CIROCCO CONSTRUCTIONS PTY LTD v CLARKE & ORS
[2020] SADC 82
Introduction

There are two interlocutory applications before the Court:
1The respondent’s (applicant by cross-action) interlocutory application filed 11 December 2019 for permission to file a fifth defence and a sixth cross action and a sixth third-party statement of claim;[1] and
2The applicant’s interlocutory application filed 7 February 2020 that the respondent be precluded from tendering the document titled “Expert Witness Report” from Danvers Studio-Architects dated September 2019 or from calling any evidence from Professor Ron Danvers in relation to such report.[2]
[1] FDN 82.
[2] FDN 86.
Background
These proceedings concern a residential dwelling, the construction of which commenced in late 2012. The applicant (Cirocco) was the builder and the respondent (Ms Clarke) the owner.
Cirocco commenced proceedings against Ms Clarke claiming unpaid progress claims. Ms Clarke issued third-party proceedings against the Architects, Williams Burton Architects Pty Ltd (Architect). Ms Clarke also filed a cross-claim against Cirocco alleging, amongst other things, defects in the stonework which comprises the external cladding for the house. Cirocco issued third-party proceedings against the stone supplier, Tasmanian Sandstone Quarries Pty Ltd (TSQ).
This matter has had a long and complex history which was set out by Master Norman in a decision delivered 20 August 2019. I do not set it out again.
Each of the parties referred to the procedural history of this matter. Whatever the rights or wrongs of the respective parties’ acts or omissions in relation to the progress of this action, the fact remains that five years after the commencement of proceedings the matter is still not ready for trial and is unlikely to be ready for trial in the near future. That position is unacceptable and following the resolution of these applications, I will set a timetable with a view to having the matter ready for trial as soon as possible.
As a symptom of the way in which this matter has become bogged down, for the purposes of the interlocutory applications, the parties placed before the Court three volumes of documents comprising in excess of 1700 pages. Whereas I accept the parties were attempting to assist the court by collating these documents, and whilst acknowledging that there was some duplication due to documents being relevant to both applications, nevertheless the production of three volumes of documents containing this number of pages on an application such as this is extraordinary. I estimate on a conservative basis that during argument I was taken to some 200 pages in total, at most.
The respondent’s application
The respondent reads the third, fifth and sixth affidavits of Kathryn Ann White sworn 2 April 2019, 11 December 2019 and 21 February 2020[3] respectively and relies upon her written outline of submissions.[4]
[3] FDNs 74, 83, 85.
[4] FDN 92.
The proposed fifth defence and sixth cross action is exhibit KAW 30 to the Fifth White Affidavit. It involves amendments to paragraphs 19, 19A (with the exception of paragraph 19A.16 (ii) which is not pressed) and 62d.
Apart from amendments to existing paragraphs, the respondent also seeks to introduce paragraphs 19B, 19C, 45d and 62A and to amend its Third-Party Statement of Claim against the Architect in similar, but not identical terms.
It submits that in both the proposed amended cross-claim and the proposed amended Third Party Statement of Claim the amendments comprise new particulars and in respect of defects, one new defect being introduced.
The respondent refers the judgement of Lander J in Arthur Young & Anor v Tieco International & Ors[5] and in particular paragraphs 13-21 inclusive. His Honour observed:[6]
[5] [1995] SASC 5173 (19/7/95).
[6] Ibid [14], [17]-[21].
14. In Williams v Telecommunications (CMN) (1988) 52 SASR 215 King CJ said at 216:
"The fundamental purpose of pleadings is to provide a structural framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the rules as to res judicata and issue estoppel. The second function is to give to the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting from surprise. These fundamentals remain unaltered by the new rules. Moreover, that general principle which governs the application of all procedural rules, namely that `rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice', Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 per Griffith CJ at 504, applies with undiminished force to the new rules as to pleadings".
…
17. Although the purpose of pleadings is clear, the pleadings themselves must not become a burden. Whilst recognizing the due importance of pleadings and their role in the litigation process, they are not to be understood to be any more than statements of the case of the party; statements made with sufficient particularity to identify that case. The rules of procedure do not require a party to include particulars of any more than the case to be made. The rules require the pleader to be as brief as the nature of the case permits and further require that the material facts ought to be pleaded but specifically preclude the pleading of the evidence upon which those facts are to be proved. It is therefore necessary, as only the material facts are to be pleaded, that some judgment has to be made in respect of any particular pleading as to whether or not the facts which are said to be omitted are material facts for the purpose of the party against whom the pleading is directed understanding the case, which is identified against that party. It follows that having regard to the injunction that the pleadings be as brief as possible and that only material facts be pleaded, the law recognizes that some facts will not be pleaded because those facts do not identify the case that is raised against the party against whom the allegation is made, or further do not identify any issues or sub-issues to which that party ought to apply that party's mind.
18. The rules do require that the pleading will contain particulars of the claim, and particulars under the Rules must be understood to be part of the pleadings. However, the rules make it plain that what is required is that there be sufficient particulars of the claim. It follows therefore, as well, that the rules contemplate that not all particulars which may be identified by a party need be pleaded.
19. In essence therefore it seems to me that a proper pleading will contain the material but not all facts and will contain sufficient particulars.
20. Whether the material facts and whether sufficient particulars have been pleaded must depend upon the cause of action, the complexities of the case and the whole of the circumstances of the case. None of those matters can be considered in isolation any more than each of the paragraphs of the pleading can be considered in isolation.
21. When the Court considers a pleading it will not consider the pleading with the same degree of scrutiny which the courts are required to give to an Act of Parliament. With the complexities of modern litigation, a pleader can usually point to some deficiency in the opponent's pleadings. One can usually, if one approaches the matter with a critical eye, identify some failing in a pleading. But that is not the approach that in this age ought to be adopted. A court would not sit down in the manner of a nineteenth century pleader seeking to find an error capable of sending a party away to re-plead his claim or defence. Such a technical approach is inconsistent with modern litigation and inconsistent with the court's function which is to try to arrive at a just result. A successful result, if arrived at, after too great an expense may not be considered by even the successful party to be a just result. A court ought to approach a consideration of the adequacy of a pleading seeking to answer the ultimate question; does the pleading give fair notice of the case to be made against the other party at trial, thereby minimising the risk of injustice resulting from surprise.
Nature of the proposed amendments
Paragraph 19 of the fifth cross-claim is proposed to be amended so that it acts as a reference point for breaches of contract referable to various generic types of defects in the stonework (paragraph 19A), supply and installation of windows and doors (paragraph 19B) and all other breaches (paragraph 19C).
The respondent submits that its proposed amendments involve the replacement of two paragraphs, namely paragraphs 19 and 19A, which had been struck out by Master Norman on 20 August 2019.
The Master struck out paragraph 19 and 19A of the fifth cross-claim on the basis that insofar as paragraph 19 was concerned, the paragraph did not identify in sufficient detail the work the respondent alleged was defective. Before the Master the applicant had submitted, amongst other things, that the respondent had pleaded by incorporating a document that was unclear as well as other documents which were inconsistent as between themselves.
In relation to the stonework, the major complaint appears to have been that the respondent had not identified which of the individual stones contained what defects.
The Master noted in his reasons that trying to understand the respondent’s case had been a “nightmare” and that if left unchanged, it would not give clear notice to the applicant of the case it had to meet and would cause substantial prejudice to the applicant. In particular the stone defects, although extensively articulated, had been done so in multiple and inconsistent ways, apart from in the pleadings. The Master determined that the respondent’s case should be set out fully in the pleadings and not within various documents.[7]
[7] Masters reasons 20/8/19 at [160], [164], [172], [173].
The Master noted further that it would be appropriate to provide as an annexure to the pleading an elevation drawing with individual stones marked on it, each given a unique number and details provided as to which defect within the four categories alleged applied to each stone.
Applicant’s submissions
The applicant reads and relies upon:
1The affidavit of Nicholas John Anderson sworn 7 February 2019;[8]
2The second affidavit of Nicholas John Anderson sworn 16 April 2019;[9]
3The third affidavit of Nicholas John Anderson sworn 7 February 2020.[10]
[8] FDN 73.
[9] FDN 77.
[10] FDN 84.
The applicant also refers to its written submissions dated 31 March 2020 and 22 May 2020.
With a few minor exceptions, the applicant opposes permission to amend the cross-claim in the proposed form on five bases.
4First, although the respondent maintains the matter needs to get to trial, the applicant submits the matter is well short of that because of the respondent’s deficient pleadings and, what the applicant describes as, ‘a new claim’. The effect of the submission is that it is too late to amend.
It is certainly the case that this matter needs to be progressed to trial. No trial date has been set as yet and it is apparent to me that further expert reports are likely in circumstances where there is no answering report from the applicant to Professor Danvers report. The need to get the matter to trial however does not obviate the need to get the pleadings in order. Although the respondent cannot expect to continue to be afforded the opportunity to keep amending her pleadings, nonetheless it is equally important to ensure that the matters properly in dispute between the parties are articulated in a coherent and logical fashion.
5Second, the applicant submits that notwithstanding the respondent maintains there are no new causes of action:
2.1The respondent’s case has expanded beyond the colour of the stone to include the quality of the stonework; and
2.2There is a new claim relating to window and door frames.
I do not consider there is a new cause of action framed in relation to the quality of the stonework. In my view, these are particulars of an existing cause of action, which is a breach of contract claim. As to the windows and doors, it is apparent that this relates only to doors and whereas new in the sense it has not previously been pleaded, I do not consider the applicant to be prejudiced in any way by the introduction of these particulars at this time.
3Third, the applicant contends there are deficiencies in the proposed fifth defence and sixth cross-claim. Those deficiencies are said to arise from the following:
3.1the respondent pleads that the applicant failed to comply with its contractual obligation to provide a sample of stone for approval and a consistent sample panel of stonework. The applicant submits this arises out of Professor Danver’s report and is new. The difficulty with that pleading, so the applicant submits, is that the pleaded case is there is no sample stone or sample panel of stonework (alleged to be in breach of the builder’s contractual obligations), yet the respondents put forward a case pleaded on the basis of comparisons with a sample stone.[11]
[11] Applicants written submissions 22/5/2020 at [22]-[25].
It is certainly the case the respondent pleads a failure to prepare a sample of the stonework for approval prior to the stonework being done, however the “sample stone” to which Professor Danvers refers in his report dated September 2019[12] is a reference taken from his instructions from the respondent’s solicitors in which they refer to the stones that the respondent will identify to him as being in the colour range she selected at a meeting in Gillman, South Australia as “the sample stone”. That is to say, Professor Danver’s attention is being drawn to a colour of stone which the respondent asserts was the colour to be used in the construction of the dwelling.
[12] Fifth White Affidavit sworn 11 December 2019 (FDN 83), exhibit KAW 25.
3.2The applicant submits that the respondent pleads her case that stonework supplied and installed by the applicant was not compliant with the Contract and puts the case on alternate bases:
i.If the walls are viewed as a whole; and
ii.By reference to individual stones.[13]
[13] Applicants written submissions 22/5/2020 at [26].
The applicant complains that the approach at i), insofar as it considers the walls viewed as a whole, is illogical because it constitutes a global defect by descending into the specifics of what is wrong with the components of the stonework (being each stone and mortar joint around it). The applicant submits that the only way to assess if the work is non-compliant is to determine whether the components are non-compliant because the contract obligation applies to each stone. It submits there is no whole of the wall Specification against which the Court can test a breach.[14]
[14] Ibid [27]-[29].
I do not accept that submission at this stage of the proceedings. It may well be at trial that the applicant is able to make good this argument, but clearly, it knows the case it has to meet. I do not consider the respondent’s formulation of its claim in this form is so flawed as to be unarguable.
As to the reference to individual stones in ii), the applicant notes that the “stone by stone” basis is particularised in Annexure B to the cross-claim and whilst not objecting to that approach as a concept, it submits there are inconsistencies in the annexure and too much generality.[15] The asserted inconsistencies are set out in footnotes 18 and 20 to Annexure A to the applicant’s written submissions dated 31 March 2020. Other complaints are identified in other footnotes.
[15] Ibid [31].
The first inconsistency identified in footnote 18 gives as an example the summary of defective stone faces identified in the area “SB” as having “148 total stone faces”. The applicant points out that the schedule of defective stones in that area records 241 stones.[16] The applicant is correct however when the other schedules for different areas of the stonework are considered, the number of stones in the area matches the total number of stones assessed for that area. It seems to me there has been a typographical error. I can detect no other inconsistency apart from this one example.
[16] See Fifth White Affidavit (FDN 83), exhibit KAW 30, page 196.
The second complaint, this time in footnote 20, is that the word “approximately” is used followed by a defined number of “34”. That is said to be a conflicting pleading and embarrassing. I do not accept that submission. The word “approximately” is directed to the defined number “34” so that the reader is told that a number, not precisely, but possibly 34, or in close proximity to that number is what is being referred to.
3.3The next complaint in footnote 20 is that it is pleaded at paragraph 19A.15(ii) that “34 stones display a damaged stone surface”, however the summary schedule of defective stone faces identifies that there are 125 “damaged” stones.[17] The reference to 34 stones with damaged surfaces in the pleading is qualified by being referable to attempts to clean the stones by the defendant (sic applicant) and/or its subcontractors. The applicant is correct when it submits that it is not possible to determine from the schedules in Annexure B to the proposed pleading which of the stones has a surface defect caused by acid in the cleaning process undertaken by the applicant or its subcontractors. In the Sixth White Affidavit,[18] Ms White deposes that if granted permission to file the proposed sixth cross-claim, a note will be added to Annexure B identifying which of the stones have a surface defect caused by acid in the cleaning process undertaken by the applicant. If that is done, I consider any uncertainty about this specific complaint will be removed.
The final complaint in footnote 20 is that the applicant submits that by reference to what Ms White deposes to in paragraph 7.2 of her sixth affidavit,[19] the respondent intends to rely on Professor Danver’s report as providing the required particulars of stones that are chipped or damaged by cleaning. I do not read the paragraph that way, but if in fact that is what is proposed then I agree with the applicant that it is an unacceptable form of pleading. Provided the pleading sets out stones that are chipped as opposed to those which are damaged by cleaning, which I consider Ms White deposes in paragraphs 7.2 and 7.3 of her sixth affidavit as being her intention, then I do not consider the applicant will be left with any uncertainty.
The applicant submits further inconsistencies or ambiguities are set out in relation to paragraph 19A.15(ii) in footnotes 21-25 of Annexure A to its written submissions dated 30 March 2020. I have considered each of those complaints. I do not consider that the complaints made in those footnotes are such that the applicant is not put on notice of the claim it has to meet.
3.4The next complaint made by the applicant under this heading is that insofar as there is a pleading concerning defective mortar in paragraph 19A.15(i) that is not of the best quality, in that it does not match stone colour because it is too dark, the joint beds and perpends are of varying thickness, the joints are not consistently smooth and the vertical and horizontal alignment of stones is up to 5 mm out of alignment, the respondent has not said which joints suffer from some or all of these complaints. The applicant contends that there is no point in sending an expert to the site to look at these alleged defects (and other complaints concerning the mortar) when they do not know what to look for. It submits any expert won’t be able to express an opinion without knowing nominated locations. In effect, the applicant makes the same complaint about the mortar as it did before the Master in relation to the stone colour.
The respondent identifies in the proposed pleading the defects from which it is alleged the mortar joints suffer. The question of whether the mortar joint beds and perpends vary in thickness is one that is readily able to be ascertained by visual examination. They are, or are not as the case may be, of consistent thickness.
Similarly, whether the mortar joints are consistently smooth and vertical and whether the horizontal alignment of stones is up to 5 mm out of alignment is also able to be objectively ascertained.
I consider that to require the applicant to identify each and every mortar joint as suffering from some or all of these complaints is not only oppressive, it descends into evidence. At trial there will need to be evidence as to which of the mortar joints suffer from these defects but the applicant knows the defects which form the basis of the complaint. That will enable the applicant to understand the evidence it has to meet at trial, knowing that the evidence is directed at the pleaded allegation in relation to mortar joints. I consider the proposed amendment in relation to the mortar joints enables the applicant to know the case it has to meet on this issue.
4 Fourth, the applicant submits there is no comprehensive or reasonable explanation for the delay by the respondent in pressing the additional complaints about the stonework. In particular, it observes there is no affidavit from the respondent herself but that the only material before the Court is contained in the Fifth White Affidavit[20] in which Ms White deposes[21] that she only became aware of the matters that are now pressed in the proposed amendments after receiving Professor Danvers’ report. I do not consider there is any substance in that submission. Although Ms White deposes as to her knowledge of what was in Professor Danvers’ report, it seems to me that in the absence of any evidence as to when the respondent herself became aware of the material in the report, I am able to infer that through her solicitor, the respondent became aware of the new matters about which complaint is now made.
5 Fifth, the applicant submits that if the court grants permission to the respondent to file a sixth cross-claim, it should do so on terms as to costs, in particular that since the respondent is in effect starting her claim again, to leave the applicant with that cost burden would do an injustice.
[17] Fifth White Affidavit, (FDN 83), exhibit KAW 30, page 196.
[18] FDN 85 at [7.2]
[19] Ibid.
[20] FDN 83.
[21] Ibid [8].
The proposed amendments to the cross-claim

Against the background of the matters I have set out above, I consider each of the proposed amendments[22] to the cross-claim below. Insofar as the applicant’s position is concerned, it is set out in Annexure A to its written submissions dated 30 March 2020.
Paragraph to which no objection is taken
[22] Fifth White Affidavit, exhibit KAW 30, p 75.
There is no objection by the applicant to the amendments proposed to paragraphs 19, 19A (preamble), 19A.1(ii), 19A.4, 19A.6(i), 19A.10, 19A.11, 19A.12, 19B.3, 19C, 19C.1 and 19C.2.
In those the circumstances, I will grant permission to the respondent to amend its fifth statement of cross-claim in terms of the paragraphs listed above.
The proposed amendment to paragraph 19A.16(ii) is not pressed by the respondent.
Lateness objection
The applicant objects to the proposed amendments in paragraphs 19A.1(i), 19A.1(iv), 19A.6(ii), 19A.7(i), 19A.7(ii), 19A.7(iii), 19A.8(i), 19A.8(ii), 19B.1, 19B.2 and 45d solely on the grounds of lateness. I have dealt with the question of lateness above.
As I have noted, this matter has not been listed for trial. I do not see any prejudice to the applicant or the third-party for that matter, in allowing these amendments that cannot be cured by the appropriate order for costs. Having said that, I accept this matter needs to proceed to trial without any further delay.
In those circumstances, I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of the paragraphs listed above.
Paragraph 19A.1(iii)
Apart from lateness, the objection to this proposed amendment is that the pleading about the sample panel fails to disclose a cause of action and there is no pleading of a breach of the covenant. As to there being no disclosure of a cause of action, it is clear to me that in this part of the pleading the respondent is identifying those parts of the Specification upon which it relies.
I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph.
Paragraph 19A.2(i)
Apart from lateness, the objection to this proposed amendment is that the pleading refers to the laying of stonework in an “Ashlar” pattern. The applicant refers to Architect’s Instruction 07 (AI 07) dated 12 June 2013 in which it is alleged that the Architect instructed the applicant that stonework was to be laid in mortar with wider (10 mm) joints without having first obtained instructions from the respondent. The applicant submits that if it is accepted that AI 07 is to that effect then the allegation that the Architect gave the instruction without having first obtained instructions from her is both irrelevant and immaterial.
That may well be the case, however that is a matter that the applicant can pursue at trial.
I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph.
Paragraph 19A.2(ii)
The same points apply in relation to this proposed amendment as apply to those for paragraph 19A.2(i).
Paragraph 19A.6(i), (ii) and (iii)
The respondent seeks to plead that by Architect’s instruction 04 (AI 04) dated 1 May 2013, there was a direction that the stone was to be laid in an Ashlar pattern, and that a sample wall was to be built for stone layout, joint size, mortar colour and technique. Stone colour was to be “2”. Any stones in the “3” category were to be removed. Apart from lateness, the objection to this proposed amendment is that there is no pleaded consequences occasioned by AI 04.
I am not in a position at this stage to finally determine what, if any, consequences flow from AI 04. If there are no consequences then that is a matter the applicant can raise at trial.
I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph.
Paragraph 19A.9
This ground of objection refers to AI 07 which I have dealt with in relation to paragraph 19A.2(i) above. The objection is that the pleading is irrelevant and immaterial.
As I have noted, that is a matter the applicant can pursue at trial.
I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph.
Paragraph 19A.15(i)
I have dealt with this paragraph above in the context of the applicant’s written submissions however there are a number of objections which were not specifically dealt with.
i.The first objection is a complaint that the pleading refers to the stonework of the external walls being viewed as a whole. The complaint is that there is no provision in the Contract which comprises a pleaded covenant to produce the stonework “when viewed as a whole” with certain characteristics. I do not consider there is any substance in this objection. As with a house which is the product of its constituent parts and viewed as a whole, so too in this particular case are the stone walls. If the applicant wishes to submit that the Contract did not call for a particular result when viewed as a whole, then it is able to do that at trial. That does not, however, prevent the respondent from pleading it.
ii.The second objection is that it is pleaded that when viewed as a whole, the stonework does not comprise stonework that is consistent in colour and “within an acceptable range”. The objection is that the pleading is embarrassing because it suggests that there will be a breach if a stone is within the acceptable colour range but not consistent in colour and the applicant does not know from the pleading how that could ever be so. The applicant submits further that if the requirement for an acceptable colour range is one of the criteria, then the words “consistent in colour” are superfluous.
I do not accept that is so. It seems to me that the allegation is that the stonework must be both consistent in colour and that colour has to come “within an acceptable range”. I do not see why it is that the pleading is embarrassing.
The applicant submits further that the pleading is embarrassing because it is not pleaded as to whom the word “acceptable” relates, that is, there is no pleading about who accepts.
The pleading cannot be seen in isolation. Paragraph 19A.7(i), to which the only objection taken was lateness, pleads that the applicant was required under the Contract “... to purchase and use stone which was consistent in colour texture and density and within an acceptable range of the very light coloured stone, being in the range of colours 2 to 3 of the colour range identified by Sandstone Select”.
The pleading identifies a benchmark against which “acceptable” is judged. I do not accept the pleading is embarrassing for this reason.
iii.The third objection is that it is not pleaded which stones became blighted by “quarry sap”. In Annexure B to the pleading, the schedule on page 196 identifies stones by reference to a light grey colour using the acronym “CG”. In his report dated September 2019 comprising exhibit KAW 25 to the Fifth White Affidavit,[23] Professor Danvers refers to treating quarry sap by spraying it with an acid solution, which in some cases results in the stones being a pale grey colour. He continues that he is uncertain whether that pale grey colour is result of organic staining or acid washing of the stones but in any event they do not match “the sample stone”.
There is force in the applicant’s objection to this part of the pleading. It is not adequate to plead that stones became “liable to be, and in due course became, blighted by quarry sap” without identifying which of those stones were, in fact, blighted by quarry sap.
iv.The fourth objection is that there is no pleading identifying which of the mortar joints are too dark, of varying thickness, of inconsistent smoothness and result in vertical and horizontal alignment of stones up to 5 mm out of alignment. I have dealt with this part of the pleading above when considering the applicant’s written submissions. I do not consider a pleading identifying each mortar bed or perpend by reference to these defects is required for the reasons I have already set out.
v.The fifth objection, putting aside a typographical error in that the pleading should contain the word “not” is that the pleading alleges the stonework was to be of a “first class standard” yet there is no pleading of the contractual criteria for “first class standards” for material.
Paragraph 19A.1(i) refers to Specification clause A. 09. 01 as requiring materials to be of the best quality and workmanship to be “up to first class standards”.
It is true there is no pleading of the contractual criteria for “first class standard”, however it is a matter for evidence as to what that comprises.
I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph, subject to the respondent identifying in its pleading those stones which are or were blighted by quarry sap.
Paragraph 19A.15(ii)
[23] FDN 83.
There are a number of objections to the pleading in this paragraph.
i.The first objection is that pleading in the alternative is embarrassing because it is not discernible how the alternative claim can substitute for the earlier one. I see no difficulty in the respondent pleading in the alternative in the circumstances of this case. I do not consider there is any substance in that objection.
ii.The second objection concerns Annexure B to the pleading and is contained in footnotes 18-25 of Annexure A to the applicant’s written submissions dated 30 March 2020. I have dealt with these objections above when dealing with the applicant’s written submissions.
I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph subject to identifying the stones that are said to be chipped.
Paragraph 19A.16(i)
The respondent claims damages of $195,250 or such other sum as the Court may find. The applicant notes that in paragraph 12 of the Sixth White Affidavit,[24] Ms White deposes that the loss claimed is intended to be pleaded at $350,769 in lieu of the amount of $195,250, such that there will be a further change to the pleading.
[24] FDN 85.
Ms White deposes further[25] that the process by which the period of 22 weeks upon which the loss is calculated is arrived at will be pleaded in a new paragraph 19A.17. However, no details are provided as to how the sum of $350,769 is calculated.
[25] Ibid [12.3], [14].
A corresponding amendment to paragraph 27 of the Sixth Third Party Statement of Claim is also proposed.
Both the applicant and the Architect are entitled to know how the sum of $350,769 is calculated by reference to a period of 22 weeks.
I will grant permission to the respondent to amend the fifth statement of cross-claim to change the amount claimed and to plead the process by which the period of 22 weeks is calculated provided the respondent also pleads how the sum of $350,769 is calculated.
Paragraph 19B and 19B.3
The objection is that the alleged defect is unclear. The pleading is an introductory pleading referring to the supply and installation of windows and doors and indicating an intention to rely upon facts which follow. During argument, Mr Dal Cin of counsel for the respondent confirmed that in fact there is no defect alleged in relation to windows. On that basis, Mr Ross-Smith of counsel for the applicant did not press an objection to the proposed amendment.
Subject to the removal of the word “windows”, I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of these paragraphs.
Paragraph 62
This paragraph pleads that the respondent is entitled to a credit on the account of a remote-controlled window motor. At paragraph 62d, the respondent pleads that the amount claimed “will be particularised following the provision of an updated quote”. The amount previously claimed was $1864.
The applicant objects on the basis that on 21 October 2019, Master Norman of this Court extended time for service by the respondent of further expert reports. The applicant submits the quote in the proposed pleading should have been obtained and served long ago. That may well be right, although at face value a quote is not in the nature of an expert report. In any event, I do not see how at this stage of the proceedings the applicant is prejudiced in any way.
I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph.
Paragraph 62A
The respondent introduces a further pleading claiming a credit in the amount of $1430 on account of a claim for extras by the applicant for the fit out of a lift in circumstances when that amount was also received by the applicant by way of a PC Sum.
The pleading seems to be an allegation of double recovery by the applicant, but clearly the applicant should not have to guess as to what the respondent claims. I will grant permission to the respondent to amend the fifth statement of cross-claim in terms of this paragraph subject to the respondent pleading the basis upon which it says it is entitled to a credit in the amount claimed.
The respondent’s application to file a Sixth Third Party Statement of Claim against the Architect.
The Architect objects to the proposed amendments:
i.On the same grounds as those advanced by the applicant;
ii.On the ground that the proposed pleading seeks to add new causes of action which are statute barred; and
iii.There are discretionary grounds upon which permission should be refused.
Proposed amendments
The respondent proposes amendments to the Fifth Third Party Statement of Claim identified in paragraphs 11e, 14a, b and h, 18a i, ii, v, vi, vii, viii, ix, x, xi, xiv, xv, 24b ii, 24c i, iii, 26a iii, iv, v, vi, vii, viii, 26b, c, 27b, c, and d.
Objection on the same grounds as the applicant
To a large extent, the allegations by the respondent against the Architect mirror those in the proposed sixth cross-claim against the applicant and to that end I repeat the matters are set out above in relation to the applicant’s opposition to the sixth cross-claim.
New cause of action
The second ground upon which the Architect opposes the proposed amendments is directed at paragraphs 26a(vi) and (vii).
Those paragraphs plead:
26Further, in breach of the retainer and in breach of its common law duty of care, Williams Burton failed to:
vi Williams Burton issued AI 07 without the authority of Mrs Clarke and as a result:
·the stonework was no longer be required to be laid with joints of 5 mm and would not have an attribute of stone laid in an Ashlar pattern; and
·the finish of the stonework would not meet the standard required by clause A. 09 of the Specification.
vii Williams Burton did not advise Mrs Clarke to reject the assertion by Mr Calabrese made at the 18 June 2013 meeting that the defect in the stonework in that it was not of the colour required by the contract was capable of remedy by means other than replacement with complying stone.
The Architect contends that these two amendments introduce new causes of action. It refers to Golski v Kirk[26] in which the Full Federal Court held that amendments proposed to a statement of claim comprised a new cause of action and not particulars of an existing cause of action.
[26] (1987) 72 ALR 443.
That matter involved an action in negligence against the estate of a surgeon. The applicant in the action sought to amend the claim after expiration of the limitation period to allege negligent advice in addition to negligence in the conduct of the operations in question.
The Court held the amendments raised a new cause of action and considered the circumstances in which a new cause of action, as opposed to particulars, will be raised. Kelly J referred to a number of English and Australian authorities, including Dornan v J W Ellis and Co Ltd[27] (“Dornan”) in which Holroyd Pearce LJ observed that the amendments under consideration in Dornan did “...not introduce a new cause of action, nor, in my view, “a new set of ideas”.[28]
[27] [1962] 1 QB 583.
[28] Ibid 592.
Kelly J considered that a plaintiff
...should not be allowed to introduce new claims by amendment which in substance amounts to the bringing of a new action for claims already barred by statute. However, where the proposed amendments do not change the cause of action but do no more than particularise the facts by which the respondent proposes to sustain it even though the facts sought to be brought forward under the amendment are quite different from those originally alleged, amendments will be allowed.[29]
[29] (1987) 72 ALR 451.
In the same case, Beaumont J said:
…the claim now made is different in principle and in point of timing, from the claim originally made. Negligently failing to warn of the possibility of physical damage being cause of surgery is undergone is a different thing from negligently causing physical damage in carrying out the surgical procedure. The respective claims involved, potentially at least, different measures of damages. In the former case, even if the patient cannot show that he would have declined to undergo the surgery if an adequate disclosure had been made it is possible the damages could still be awarded to a patient for the loss of the opportunity to consider whether or not he or she should undergo surgery... (references omitted).
Respondent’s Submissions
The respondent submits that a report prepared by Mr Stephen Penglase of Swanbury Penglase Architects dated 10 May 2019 and served on the respondent raises the issue of the June 2013 meeting.
That may be so, but it is not the issue. The issue concerns whether the proposed amendments raise a new cause of action and if so, whether it is statute barred.
The respondent submits:
i.First, that the proposed amendments do not raise a new cause of action;
ii.Second, if they do it is not statute barred;
iii.Third, if it is statute barred, then pursuant to rule 54 (7) of the District Court Civil Rules 2006[30] the Court’s permission for an amendment which adds or substitutes a cause of action that is statute barred may only be granted if the new cause of action arises out of substantially the same facts as the new cause of action; and
iv.Fourth, if the amendment raises a new cause of action which is statute barred and not arising out of substantially the same facts then leave should still be granted to make the amendment on the basis that the respondent will make an application to amend the summons to include an application under section 48 of the Limitation of Actions Act for an extension of time to institute the cause of action on the basis of new material facts.
Architect’s Submissions
[30] The former rules applied because the application for permission was filed before the commencement of the Uniform Civil Procedure Rules on 18 May 2020.
As to whether the proposed amendments raise a new cause of action, Mr Hurburgh, who appeared for the Architect submitted that the amendments introduced a claim against the Architect, of a completely different nature to the existing claim.
Specifically, Mr Hurburgh submitted that in paragraph 26 a vi it is pleaded that the Architect issued an instruction on 12 June 2013 without the authority of the respondent, such that the stonework would no longer have an attribute of stone laid in an Ashlar pattern and the finish of the stonework would not comply with the Specification.
As to paragraph 26 a vii, Mr Hurburgh submitted that the proposed amendment introduces an allegation that the Architect did not advise the Mrs Clarke to reject certain assertions made by Mr Calabrese at a meeting on 18 June 2013.
Mr Hurburgh submits that on the existing claim there is no suggestion of any act or instruction by the Architect which caused or contributed to the alleged failure by the builder to lay stonework in accordance with the requirements of the Specification and that the proposed amendments introduce such a claim. He submits that claim is different in both principle and in timing such that it involves an entirely different enquiry as to damages. He submits further that the proposed amendments introduce a “new set of ideas” within the meaning of Golski v Kirk.[31]
[31] (1987) 72 ALR 443.

Mr Hurburgh also submitted that permission to amend in terms of paragraphs 26 a vi and vii should be refused because of the delay in bringing forward the amendments ie. on discretionary principles.
Consideration
Paragraph 26 a vi is added as a particular to the allegation in paragraph 26 a that the Architect, in breach of its common law duty of care and in breach of its retainer to Mrs Clarke, did not ensure that the design intent and content of the working drawings and Specification was carried out by the builder in a satisfactory manner with high levels of workmanship. To the same effect, the allegation in paragraph 26 a vii is that by not advising Mrs Clarke to reject the assertion by Mr Calabrese the Architect failed to ensure that during the contract administration stage, the design intent and the content of the working drawings and Specification was carried out by the applicant in a satisfactory manner with high levels of workmanship.
The damages claimed for the alleged breach of duty of care and breach of retainer is pleaded paragraph 27 i in relation to stone defects. That has not changed except for more particularity than existed in the pre-existing pleading.
In my view, the proposed amendments to paragraphs 26 a vi and vii do not introduce a new cause of action but provide further particulars of an already existing cause of action.
As to the lateness of the application, that submission was also made by the applicant in relation to the other proposed amendments. For the same reasons I have set out above, although accepting there has been a delay in getting this action ready for trial, I do not consider that can be laid at the feet of any one party. As I have also indicated, I will set a timetable to progress this matter to trial as soon as is practicable.
On the basis of what I have held I do not need to consider the other grounds upon which the Architect relies.
Accordingly I will give permission to the respondent to amend the fifth third-party statement of claim in terms of exhibit KAW 30 to the Fifth White Affidavit and subject to the conditions which I will set out below.
Professor Danvers report
By its interlocutory application filed 7 February 2020,[32] the applicant applies for an order that the respondent be precluded from tendering the document titled “Expert Witness Report” from Danvers.Studio-Architects dated 7 September 2019 or from calling any evidence from Professor Danvers in relation to such a report.
[32] FDN 86.
Professor Danvers is an architect.
The applicant relies on two grounds:
6First, that in producing the report and providing his opinion, Professor Danvers does not exercise the skills and training of an architect and does not deploy his expertise;[33] and
[33] T87.3-6, 11-18.
7Second, that the question of the quality of the stonework and in particular its aesthetics and colour is not a matter for an architect but for the trial judge.[34]
[34] T87.19-27.
In relation to the first ground, I do not accept that in producing his report, Professor Danvers does not exercise the skills and training of an architect and does not deploy his expertise. By the very nature of their profession and training, architects develop an expertise in aesthetics of design and workmanship which, amongst other things, includes colour.
As to the second ground, although the question of the quality of the stonework and in particular its aesthetics and colour is ultimately a matter for the trial judge, that does not mean that Professor Danvers is not able to provide his expert opinion in order to assist the Court in reaching a conclusion on that question. It may be that the trial judge will accept Professor Danvers report, but she or he is not obliged to do so.
Accordingly, I dismiss the applicant’s application.
Conclusion and orders
8On the respondent’s interlocutory application dated 11 December 2019,[35] subject to the following, I grant permission to the respondent to amend its fifth statement of cross-claim in terms of exhibit KAW 30 to the Fifth White Affidavit:
[35] FDN 82.
8.1The proposed amendment to paragraph 19A.15(i) is allowed, subject to the respondent identifying in the pleading those stones which are or were blighted by quarry sap;
8.2The proposed amendment to paragraph 19A.15(ii) is allowed, subject to the respondent identifying the pleading those stones which are alleged to be chipped;
8.3The proposed amendment to paragraph 19A.16(i) is allowed, subject to the respondent identifying in the pleading how the sum of $350,769 is calculated;
8.4The proposed amendment to paragraphs 19B and 19B.3 are allowed, subject to the removal of the word “windows” from those paragraphs;
8.5the proposed amendment to paragraph 62A is allowed subject to the respondent pleading the basis upon which it says it is entitled to a credit in the amount claimed.
8.6Permission to the respondent to amend the table on pages 201-206 of annexure B to the proposed sixth cross-claim by substituting for the figure 148, such other figure as may be advised.
9On the respondent’s interlocutory application dated 11 December 2019, subject to the following, I grant permission to the respondent to amend its Fifth Third Party Statement of Claim in terms of exhibit KAW 30 to the Fifth White Affidavit:
9.2The proposed amendment to paragraph 26 a iv is allowed subject to the respondent identifying in the pleading those stones which are or were blighted by quarry sap;
9.3The proposed amendment to paragraph 26 a v is allowed subject to the respondent identifying in the pleading those stones which are alleged to be chipped;
9.4The proposed amendment to paragraph 27 b is allowed subject to the respondent identifying in the pleading how the sum of $350,769 is calculated;
9.5The proposed amendment to paragraph 27 c is allowed subject to the removal of the word “windows” from those paragraphs;
10I dismiss the applicant’s interlocutory application dated 7 February 2020;[36]
[36] FDN 86.
11I will hear the parties on the question of costs including costs thrown away and the costs of and incidental to these two applications.