Coomera Land Development Corporation Pty Ltd v; Urban Land Developments Pty Ltd

[2006] QDC 365

DISTRICT COURT OF QUEENSLAND

CITATION:

Coomera Land Development Corporation Pty Ltd  v
Urban Land Developments Pty Ltd [2006] QDC 365

PARTIES:

COOMERA LAND DEVELOPMENT CORPORATION PTY LTD

Plaintiff/Respondent
v

URBAN LAND DEVELOPMENTS PTY LTD

Defendant/Applicant

FILE NO/S:

648/04

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application 

ORIGINATING COURT:

Southport

DELIVERED ON:

18 October 2006

DELIVERED AT:

Southport

HEARING DATE:

18 September 2006

JUDGE:

Dearden  DCJ

ORDER:

That the plaintiff provide further and better particulars of paragraphs 13, 14(a)(i) and 14(a)(iii) of its Amended Statement of Claim in accordance with the Request for Further and Better Particulars dated 25 August 2005 delivered by the solicitors for the defendant

CATCHWORDS:

APPLICATION – Application for further and better particulars

Cases Cited:
King v The Associated Northern Collieries & Ors (1910) 11 CLR 739

Legislation:
Uniform Civil Procedure Rules

COUNSEL:

Ms K Magee for the defendant/applicant
Mr D Morgan for the plaintiff/respondent

SOLICITORS:

Astills, Solicitors for the defendant/applicant
Short Punch & Greatorix, Solicitors for the   plaintiff/respondent

Introduction

1. “‘When I use a word’, Humpty Dumpty said, in a rather scornful tone ‘it means just what I choose it to mean, neither more nor less’.  ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’  ‘The question is’, said Humpty Dumpty, ‘which is to be master – that’s all.’”[1]  If I could venture to paraphrase the wonderful language of Lewis Carroll, words should mean what they say and say what they mean.  In this application by the defendant/applicant, Urban Land Development Pty Ltd against the plaintiff/respondent Coomera Land Development Corporation Pty Ltd, seeking further and better particulars of paragraphs 13, 14(a)(i) and 14(a)(iii) of its Amended Statement of Claim, the issue is whether the relevant words say what the plaintiff/respondent asserts they mean.

   [1] Lewis Carroll Through the Looking Glass Chapter VI

Submissions

1. Although Mr Morgan (who appears for the plaintiff/respondent) did not draft the impugned Amended Statement of Claim, he candidly stated that “there [were] not very many different things that [he] would go about doing if [he] settled it.”[2].  Although that may be Mr Morgan’s position, it became clear when I questioned him further about the rather obtuse language of the pleadings (in particular paragraphs 13, 14(a)(i) and 14(a)(iii)) that the respondent/plaintiff was, in fact, in a position to clarify the bald terms of the Amended Statement of Claim in a manner that responded (in my view appropriately) to the further and better particulars sought by the defendant/applicant on 25 August 2005[3].  This, in my view, starkly illustrated the inadequacy of the pleadings.  This inadequacy was, unsurprisingly, highlighted by Ms Magee in her submissions (written and oral) for the defendant/applicant.

   [2] Hearing T.11

   [3] Exhibit AL1 and paragraph 3, Affidavit of Ayezan Lwin sworn 25 August 2006

The Law

1. As Isaacs J said in the King v The Associated Northern Collieries & Ors[4]

“I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constituate of facts which are said to raise his legal liability.  He is to receive sufficient information to ensure fair trial and to guard against what the law terms ‘surprise’, but he is not entitled to be told the mode by which the case is to be proved against him.”

[4] (1910) 11 CLR 739, 740-741

Conclusion

1. In short, I do not accept that the plaintiff/respondent has complied with its obligations pursuant to Uniform Civil Procedure Rules (UCPR) rr.149-150, 155. Accordingly I order that the plaintiff provide further and better particulars of paragraphs 13, 14(a)(i) and 14(a)(iii) of its Amended Statement of Claim in accordance with the Request for Further and Better Particulars dated 25 August 2005 delivered by the solicitors for the defendant.

1. What also concerns me (although it was not the subject of the application before me) is the glacial speed with which this matter has proceeded.  No doubt significant legal costs have been accumulated on both sides while the parties seek to elucidate the precise terms of their dispute.  Perhaps naively, I would hope that the order I have made will enable the parties to better appreciate the strengths and weaknesses of their respective cases.  This may then lead to the parties meeting on without prejudice basis as a matter of urgency with a view to settling the proceedings without resorting to further litigation.  That, of course, as always, remains a matter for the parties, but this case seems (with respect) to be crying out for an urgent injection of ADR.

Costs

I will hear the parties on costs.

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