CPB Contractors Pty Limited (Formerly Leighton Contractors Pty Limited) v Wood & Grieve Engineers Pty Limited (Formerly Wood & Grieve Engineers Limited) - [2025] WASC 467

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CPB CONTRACTORS PTY LIMITED (FORMERLY LEIGHTON CONTRACTORS PTY LIMITED) -v- WOOD & GRIEVE ENGINEERS PTY LIMITED (FORMERLY WOOD & GRIEVE ENGINEERS LIMITED) [2025] WASC 467
CORAM:   STRK J
HEARD:   14 OCTOBER 2025
DELIVERED          :   5 NOVEMBER 2025
FILE NO/S:   CIV 2091 of 2021
BETWEEN:   CPB CONTRACTORS PTY LIMITED (FORMERLY LEIGHTON CONTRACTORS PTY LIMITED)
Plaintiff
AND
WOOD & GRIEVE ENGINEERS PTY LIMITED (FORMERLY WOOD & GRIEVE ENGINEERS LIMITED)
Defendant
WOOD & GRIEVE ENGINEERS PTY LIMITED (FORMERLY WOOD & GRIEVE ENGINEERS LIMITED)
Plaintiff by counterclaim
CPB CONTRACTORS PTY LIMITED (FORMERLY LEIGHTON CONTRACTORS PTY LIMITED)
Defendant by counterclaim

Catchwords:

Practice and procedure - Application for further and better particulars - Alternative causation and loss and damages plea - Global and/or modified total costs claim - Case management principles - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 20 r 13(3)

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff	:	MJ Sims SC & B Willesee
Defendant	:	BA Millar
Plaintiff by counterclaim	:	BA Millar
Defendant by counterclaim	:	MJ Sims SC & B Willesee

Solicitors:

Plaintiff	:	Clifford Chance
Defendant	:	Barry Nilsson Lawyers (WA)
Plaintiff by counterclaim	:	Barry Nilsson Lawyers (WA)
Defendant by counterclaim	:	Clifford Chance

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

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343
Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 3] [2019] WASC 399
DM Drainage & Constructions Pty Ltd as trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170
Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361
Ipex ITG Pty Ltd v Melbourne Water Corporation [No 3] [2006] VSC 83
Jensen v Nationwide News Pty Ltd [No 2] [2018] WASC 129
John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 8 VR 681
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 6] [2016] WASC 218
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 55

Table of Contents

Introduction

Relevant procedural history

The pleading and request for particulars

Overview of the parties' positions

Wood & Grieve Engineers' position

CPB Contractors' position

Insufficient basis to exercise discretion

Request for evidence

Inconsistent with case management principles

Conferral

Disposition

Sch A - Appendix L to the further amended statement of claim

STRK J:

Introduction

Wood & Grieve Engineers Pty Ltd (formerly Wood & Grieve Engineers Limited) seeks further and better particulars of part of the pleaded claim of CPB Contractors Pty Ltd (formerly known as Leighton Contractors Pty Limited). The request in its final form is set out in the revised minute of proposed orders and outline of submissions filed on 4 September 2025. The request concerns paragraph 75(a)(iv) of the further amended statement of claim filed on behalf of CPB Contractors dated 22 March 2022.
The further amended statement of claim, with appendices, stands at 373 pages. The re‑amended defence and counterclaim, with appendices, stands at 368 pages. By way of high level introduction, I note the following (which I do not understand to be contentious).
On or around 1 January 2012 the State of Western Australia established the Metropolitan Redevelopment Authority, which was tasked to deliver and design the construction of a public realm and inlet for the purpose of upgrading and redeveloping the Elizabeth Quay Site. This redevelopment was referred to as the Elizabeth Quay Project. On or around 22 May 2012, the State of Western Australia issued a 'request for proposal' seeking proposals for the design and construction of the public realm and inlet of the Elizabeth Quay Project.[1]
[1] Metropolitan Redevelopment Authority Act 2011 (WA), s 4; further amended statement of claim filed on 22 March 2022, pars 3 - 5; re-amended defence and counterclaim filed on 21 December 2022, pars 3 - 5.
Wood & Grieve Engineers provides design services to the construction industry through a consultancy business.[2] The State of Western Australia (acting through an agent), engaged Wood & Grieve Engineers to carry out civil engineering services for the Elizabeth Quay Project.[3]
[2] Further amended statement of claim filed on 22 March 2022, par 2; re-amended defence and counterclaim filed on 21 December 2022, par 2.
[3] Further amended statement of claim filed on 22 March 2022, par 6; re-amended defence and counterclaim filed on 21 December 2022, par 6.
The agreement by which Wood & Grieve Engineers was engaged was varied and extended, including through the preparation of a series of formal documents referred to as the pre-novation consultancy agreement. With effect from about 19 December 2012, the pre-novation consultancy agreement was novated from the Metropolitan Redevelopment Authority to CPB Contractors on the same terms and consisting of the same documents. This was referred to as the 'Consultancy Agreement'. The services agreed to be provided under the Consultancy Agreement included 'Design Development and Contract Documentation' (as defined in the Consultancy Agreement) and 'Construction Support Services' (as defined in the Consultancy Agreement).[4]
[4] Further amended statement of claim filed on 22 March 2022, pars 9 - 11; re-amended defence and counterclaim filed on 21 December 2022, par 6.
In broad terms, in this proceeding CPB Contractors makes claims against Wood & Grieve Engineers for loss and damage arising from the alleged breach by Wood & Grieve Engineers of the Consultancy Agreement, or in the alternative negligence on the part of Wood & Grieve Engineers in the period from about 1 October 2012 until the completion of the works on the Elizabeth Quay Project arising from or in connection with Wood & Grieve Engineers' delays in providing and/or failures to provide Design Development and Contract Documentation; provision of inaccurate, inadequate and/or incomplete Design Development and Contract Documentation; failure to remedy errors, omissions or ambiguities contained in the Design Development and Contract Documentation; failure to comply with directions from CPB Contractors under the Consultancy Agreement; failure to consult with, and make reasonable enquiries, of CPB Contractors in carrying out the services under the Consultancy Agreement; failure to provide required notifications to CPB Contractors in connection with the Consultancy Agreement; and/or failure to exercise the standard of care, skill and diligence required of a consultant in the position of Wood & Grieve Engineers in the provision of engineering services to CPB Contractors.
CPB Contractors further claims from Wood & Grieve Engineers under the Consultancy Agreement, alternatively as restitution for money had and received, repayment of fees alleged to have been overpaid by CPB Contractors to Wood & Grieve Engineers by mistake as a result of payment claims made by Wood & Grieve Engineers between about May 2013 and about February 2015 in breach of a warranty given by Wood & Grieve Engineers to CPB Contractors in the Consultancy Agreement.
In summary, by way of counterclaim Wood & Grieve Engineers seeks to recover various sums from CPB Contractors under the Consultancy Agreement; declarations that CPB Contractors acted in breach of the Consultancy Agreement; that damages be assessed for breach of the Consultancy Agreement; and recovery of interest and costs.[5]
[5] Re-amended defence and counterclaim filed on 21 December 2022.

Relevant procedural history

The background to the request for further and better particulars was conveniently summarised on behalf of CPB Contractors in the outline of submissions filed before the hearing of the application.[6] The following draws from that summary.
[6] CPB Contractors' outline of submissions filed on 19 September 2025, pars 3 - 12.
The proceeding was commenced by writ on 18 October 2021 and a statement of claim was filed on 25 October 2021. That pleading included a conventional causation and loss and damages claim (from paragraphs 67 to 74), and an alternative causation and loss and damages claim, pleaded as a global and/or modified total costs claim against Wood & Grieve Engineers (paragraph 75).
On 14 February 2022 CPB Contractors filed an amended statement of claim. That pleading again included a conventional causation and loss and damages claim (from paragraphs 67 to 74), and an alternative causation and loss and damages claim pleaded as a global and/or modified total costs claim against Wood & Grieve Engineers (paragraph 75, with further particulars at Appendix L).
On 22 March 2022 a further amended statement of claim was filed. In the further amended pleading, paragraph 75 and Appendix L remained unchanged.
On 26 August 2022 Wood & Grieve Engineers filed its defence and counterclaim, which among other things responded to paragraph 75(a)(iv) of the further amended statement of claim. While the defence and counterclaim was amended on 10 October 2022 and re‑amended on 21 December 2022, the defence pleaded to the alternative global and/or modified total costs claim was not amended.
On 26 August 2025 (before a directions hearing listed on 27 August 2025), Wood & Grieve Engineers filed a minute of proposed orders which included a request for further and better particulars of paragraph 75(a)(iv) of the further amended statement of claim.
During the course of the directions hearing on 27 August 2025, counsel for Wood & Grieve Engineers pressed the application for further and better particulars of paragraph 75(a)(iv) of the further amended statement of claim and made oral submissions. With the limited notice provided, counsel for CPB Contractors was without instructions and not in a position to address the application in the course of the directions hearing.[7] Orders were made programming the application, including an order requiring Wood & Grieve Engineers to file and serve a revised minute of proposed orders.[8]
[7] ts 179 (27 August 2025).
[8] Orders 19 - 22 of the orders made on 27 August 2025.
On 4 September 2025 a revised minute of proposed orders for particulars and an outline of submissions was filed on behalf of Wood & Grieve Engineers.
On 15 September 2025 the solicitors for CPB Constructions wrote to solicitors for Wood & Grieve Engineers with a proposal to provide source documents for the actual costs referred to in the table at paragraph 75(a)(iv) of the further amended statement of claim (reproduced below); and each payment from the Metropolitan Redevelopment Authority or any other entity in respect of the works the subject of the following SWPs (subwork packages): 7001, 3101, 4001, 4004, 6003, 7002, 4406 (which documents I understand have been discovered in the proceeding). Upon conferral, this proposal was not considered sufficient, and the terms of the revised minute remained in dispute.[9]
[9] CPB Contractors' outline of submissions filed on 19 September 2025, pars 11 - 12, Attachment A.
On 19 September 2025 an outline of submissions in response to the application was filed on behalf of CPB Contractors. An outline of submissions in reply and a memorandum of conferral were filed on behalf of Wood & Grieve Engineers on 26 September 2025.
At the hearing of the application on 14 October 2025, counsel relied upon the various outlines filed and were further heard in relation to the application.

The pleading and request for particulars

The pleaded alternative global and/or modified total costs claim against Wood & Grieve Engineers is reproduced below:[10]
[10] Further amended statement of claim filed on 22 March 2022, par 75. In the pleading, 'SWP' means subwork package.
ALTERNATIVE CAUSATION & LOSS AND DAMAGE: GLOBAL / MODIFIED TOTAL COSTS CLAIM
75 Further, and in the alternative, to the allegations pleaded in paragraphs 67 to 73 above, [CPB Contractors] advances a global and/or modified total costs claim against [Wood & Grieve Engineers], on the basis that:
(a) but for each and all of [Wood & Grieve Engineers'] breaches of the Consultancy Agreement, as pleaded at paragraphs 43, 44 and 64 above, [CPB Contractors] would have completed the:
(i) Stage One Works without incurring the costs of the additional resources and preliminaries pleaded in paragraph 67 above;
(ii) Stage Two Works by the LD Milestone Dates for the Guaranteed Contract Sum without incurring the costs of the additional resources and preliminaries pleaded in paragraph 73 above;
(iii) Stage Two Works by the LD Milestone Dates for the Guaranteed Contract Sum without incurring the costs of the subcontractor and supplier variations and delay and disruption claims pleaded in paragraph 69 above;
(iv) Stage Two Works by the LD Milestone Dates for the Guaranteed Contract Sum without the cost to [CPB Contractors] of completing those works increasing and exceeding that contained in the Stage Two Offer;
Particulars
(i)In relation to SWPs 7001, 3101, 4000, 6003 and 7002, and adjusting for budget transfers between the SWPs and approved variations to subcontractors (which are further particularised in Appendix L), the table below shows the calculation of [CPB Contractors'] loss for each SWP:
(ii)The costs set out in the sixth column of the above table do not include the amounts particularised at paragraphs 69, 73(i), 73(ii) or 73(iii) above.
(iii)Further particulars may be provided following discovery and the exchange of expert evidence prior to trial.
(b)if (which is denied) [CPB Contractors] is unable to identify with sufficient particularity any part or parts of its loss or damage, pleaded in paragraph 74 above, attributable to each or any of [Wood & Grieve Engineers'] breaches of the Consultancy Agreement, as pleaded at paragraphs 43, 44 and 64 above, that is because it is impractical to do so for reasons which are not attributable to any delay or other conduct of [CPB Contractors];
Particulars
(i)There is a highly complex interaction between each of the 209 Stage Two Design Development and Contract Documentation, the 17,609 Revised Stage Two Design Development and Contract Documentation, the delay and disruptive impact on [CPB Contractors] and its hundreds of suppliers and subcontractors across the Elizabeth Quay Project, and the consequent impact on the progress of the Stage One Works and each of the interrelating 43 SWPs.
(ii)Further particulars will be provided following discovery and the exchange of expert evidence prior to trial.
(b-a)[CPB Contractors] is unable to identify with particularity that part or parts of its loss or damage, pleaded in paragraph 75(a)(iv) above, attributable to particular breaches of the Consultancy Agreement by [Wood & Grieve Engineers], as pleaded at paragraphs 43, 44 and 64 above, because it is impractical to do so for reasons which are not attributable to any delay or other conduct of [CPB Contractors];
Particulars
(i)The particulars to paragraph 75(b) above are repeated.
(c)other than [Wood & Grieve Engineers'] breaches of the Consultancy Agreement, as pleaded at paragraphs 43, 44 and 64 above, there are no alternative causes of any significance of the loss or damage suffered by [CPB Contractors] as pleaded at paragraphs 74 and 75(a)(iv) above; and
(d)the additional costs incurred by [CPB Contractors] forming part of its loss or damage, being those pleaded at paragraphs 67, 73 and 75(a)(iv) above, were reasonably and necessarily incurred by [CPB Contractors] by reason of each or all of [Wood & Grieve Engineers'] breaches of the Consultancy Agreement, as pleaded at paragraphs 43, 44 and 64 above.
Annexure L to the pleading, in which budget transfers between the SWPs and approved variations to subcontractors are further particularised, is reproduced at sch A to these reasons. In these reasons, reference to the Table is a reference to the table that forms part of the particulars to paragraph 75(a)(iv) reproduced above.
The revised form of order for particulars sought by Wood & Grieve Engineers is reproduced below:[11]
[11] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, par 2.
REVISED MINUTE OF ORDERS FOR PARTICULARS OF QUANTUM
Set out below is the revised wording of the Orders sought:
2. By 30 September 2025, in respect of paragraph 75(a)(iv) of the [further amended statement of claim, CPB Contractors] must file and serve further and better particulars of:
(a)each item of actual cost incurred in respect of each SWP listed in the Table, being SWPs: 7001, 3101, 4001, 4004, 6003, 7002, 4406, including but not limited to:
(i)a description of the cost, to what entity it was paid (and on what date) and in respect of which claim made by that entity;
(ii)identifying whether the cost was for:
(A) payment to an entity as part of an approved SWP;
(B) Direct Works carried out by [CPB Contractors];
(C) cost associated with an Approved Variation;
(D) cost associated with any other variation;
(E) cost associated with a Budget Transfer.
(b)each payment [CPB Contractors] obtained from [The Metropolitan Redevelopment Authority] or any other entity in respect of the works the subject of each of the following SWPs: 7001, 3101, 4001, 4004, 6003, 7002, 4406, 2001, 1101, 3003, 6008, 9100, 3002, 4307, 4303, 9001, and 4401, including but not limited to:
(i)a description of the payment, its amount, from what entity it was paid (and on what date) and in respect of which claim made by [CPB Contractors];
(ii)how each of those payments were allocated to the SWPs listed in (a) above, including in relation any budget transfers;
(iii)identifying whether the payment was for:
(A)payment to an entity as part of an approved SWP;
(B)Direct Works carried out by [CPB Contractors];
(C)cost associated with an Approved Variation;
(D)cost associated with any other variation;
(E)an allocation of the project risk and contingency payment;
(F)an allocation of the additional lump sum payment (made as part of the Lump Sum Contract);
(G)allocation of any other amounts received from any entities in respect of the works the subject of the relevant SWP.
(c)How the global loss claimed was caused or contributed to by (all of) the alleged breaches, including, but not limited to, identifying the alleged consequences of [Wood & Grieve Engineers'] breaches by reference to what impact they had on the works the subject of each SWP, which it is alleged caused the claimed additional costs to be incurred for each SWP.

Overview of the parties' positions

Wood & Grieve Engineers' position

Counsel for Wood & Grieve Engineers summarises the application as being a request for further and better particulars of:[12]
(a)each item of actual cost incurred in respect of SWP 7001, 3101, 4001, 4004, 6003, 7002, 4406, by way of a description of those costs, and an explanation for what each of those costs were for;
(b)each payment CPB Contractors obtained in respect of SWP 7001, 3101, 4001, 4004, 6003, 7002, 4406 and other SWPs, a description of each of those payments, how those payments were allocated to a SWP, and an explanation for what each of those payments were for; and
(c)how the global loss claimed by the CPB Contractors was caused or contributed to by (all of) the breaches alleged against Wood & Grieve Engineers.
[12] Wood & Grieve Engineers' outline of submissions in reply filed on 26 September 2025, par 1.

Wood & Grieve Engineers seeks that the basis for CPB Contractors' global claim be set out with specificity, so as to enable it to:
(a)prepare its defence and to comply with the Court's orders (which include an order that non-expert evidence be filed by 27 March 2026 and that by 10 March 2026 the parties confer with a view of identifying the respective disciplines of expert evidence to be led at trial, a list of issues or questions for expert evidence and the material to be provided to the experts for them to consider as part of preparing their expert reports);[13] and
(b)efficiently review the (in the order of 200,000) discovered documents as part of preparing its defence.[14]
[13] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, par 6, referring to the orders made on 27 August 2025. See also ts 192 - 193, 203, 206, 220 (14 October 2025).
[14] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, par 6. See also ts 193, 203 (14 October 2025).
Wood & Grieve Engineers says that the requested further and better particulars are necessary in order to facilitate the efficient, timely and cost effective management of this complex construction dispute, consistent with case management principles.[15] Further, it says that:[16]
(a)the provision of further particulars is contemplated in the pleading itself;
(b)the extent CPB Contractors needs to review its records to provide such details, discovery has now been completed (and took a considerable time);
(c)there is no proper basis for CPB Contractors to assert that it has to procure its expert evidence in order to provide the particulars requested. (That is, CPB Contractors must have known the basis for the pleading when it pleaded the matters it did in paragraph 75. While expert evidence may supplement other aspects of CPB Contractors' case, it cannot change the facts that were the basis for the matters currently pleaded); and
(d)Wood & Grieve Engineers needs to be able to understand how CPB Contractors' claimed loss is derived in order to be able to understand the case it has to meet and prepare its defence.
[15] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, par 7.
[16] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, pars 8, 10.
Counsel further noted that, at a general level, CPB Contractors asserts that the loss is the difference between its costs actually incurred for each SWP and the amount of the Guaranteed Contract Sum (a defined term) in the Stage Two Offer (as adjusted by CPB Contractors and referred to in the pleading as the 'Revised Guaranteed Contract Sum', which is not a defined term in the Stage Two Offer or MC Contracts).[17] In light of the same, counsel complained that the pleading infers that the total amount CPB Contractors in fact received for the performance of all the relevant works was the amount of the Revised Guaranteed Contract Sum referrable to that SWP, but that implicit assertion cannot be assessed unless details are given as to what amounts were in fact received for what works the subject of each SWP.[18] It was noted that this is particularly so when for certain SWPs the Guaranteed Contract Sum in the Stage Two Offer included amounts for provisional sums (which were to be adjusted and paid depending on actual costs incurred rather than the estimates the subject of the provisional sum); and that provisional sum amounts were included in SWP 7002 (expressly referred to in the Table) and SWPs 6008, 4307, 4303 and 9001 (included in the Table due to the budget transfers set out in Appendix L).
[17] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, par 10.
[18] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, par 11.
At a general level, Wood & Grieve Engineers says that it needs to know the details of:[19]
(a)what the global figure pleaded for the actual costs incurred is made up of for each item of cost CPB Contractors relies upon for calculating its alleged loss (including, for example, what subcontractors, suppliers, consultants, or other CPB Contractors resources performed the relevant works for the SWP resulting in the amounts making up the global sum pleaded in the fourth column of the Table being incurred); and
(b)what amounts were in fact received by CPB Contractors in respect of each item of cost (including, for example, what amounts were actually paid to CPB Contractors (by the Metropolitan Redevelopment Authority or other entities) in respect of each item of work done by those subcontractors, suppliers, consultants, or other CPB Contractors resources for performing the relevant works for the SWP).
[19] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, pars 13 - 15.
It maintains that the pleading ought also explain how the transfer of certain works between SWPs (via budget transfers) and the impact of variations were treated; and that Wood & Grieve Engineers should not be left to search through the discovery (including CPB Contractors' costs records) to, in effect, guess for itself what those details of CPB Contractors' claims are.[20]
[20] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, pars 16 - 17.
In addition to the above, Wood & Grieve Engineers says that in order to understand the case to be met and prepare its defence, it needs to know how the numerous breaches alleged have resulted in the loss claimed (albeit a global/total sum with no specific costs linked to any specific breach). That is, CPB Contractors must at least particularise the alleged consequences of Wood & Grieve Engineers' breaches, by reference to what impact they had on the works the subject of each SWP, which it is alleged led to the additional costs being incurred for the SWP - in other words how it is that the global/total loss claimed was caused by (all of) the breaches (and not other matters). It is submitted that this is so regardless of whether a global claim is being advanced, and that it is arguably more important in such a context.
It is also submitted that CPB Contractors cannot have properly pleaded its claims as currently advanced without knowing the impacts the alleged breaches had that it relied upon to be able to assert those breaches led to the additional costs being incurred; and that it cannot be said that it is impossible or impractical for CPB Contractors to spell this level of detail out further in its pleading.[21]
[21] Wood & Grieve Engineers' revised minute of proposed orders and outline of submissions filed on 4 September 2025, par 20.
Finally, Wood & Grieve Engineers complain that while CPB Contractors has provided some detail as to the costs that are part of its global claim as pleaded at paragraphs 75(a)(i), (ii) and (iii), it has not done so (and should now be required to do so) for the costs and loss claimed under paragraph 75(a)(iv). It is also noted that it seems that the impacts on the works and cost consequences CPB Contractors relies upon to claim the loss the subject of the global claim made under paragraph 75(a)(iv) are different to those the subject of paragraphs 75(a)(i), (ii) and (iii) (see paragraph 75(a)(iv)(ii)).
Counsel submitted that the Court ought to consider the application in light of a number of decisions. The first was that of Byrne J in John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 8 VR 681, which concerned an application to strike out substantial parts or the whole of a statement of claim in which the claim for damages was framed on a global basis.
Counsel referred particularly to [13] to [23] of that decision, emphasising (among other things) the observation made by Byrne J that '[g]lobal claims are difficult for the parties and the court to handle', and may hide a bogus claim.[22]
[22] John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd [20].
Counsel suggested that this Court's approach to the application for particulars ought be informed by Byrne J's observations and suggested approach to a global and/or modified total costs claim recorded at [22] and [23], which are reproduced below:
The question whether in a given case a pleading based on a global claim, or even a total cost claim or some variant of this, is likely to or may prejudice, embarrass or delay the fair trial of a proceeding, must depend upon an examination of the pleading itself and the claim which it makes. The fundamental concern of the court is that the dispute between the parties should be determined expeditiously and economically and, above all, fairly. Where the proceeding is being managed in a specialist list, the judge, whose task it is to steer the case through its interlocutory stages, might, and perhaps should, explore the claim to determine whether the form it takes is driven by its nature and complexity, or by a desire to conceal its bogus nature by presenting it in a snowstorm of unrelated and insufficiently particularised allegations, or by a desire to disadvantage the defendant in some way. Relevant to this is an acknowledgment that a total cost claim puts a burden on the defendant. This burden may involve the defendant in extensive discovery of documents relating to the performance of the project; it may mean that at trial the defendant must cross-examine the plaintiff's witnesses to expose the flaws in a claim which assumes that the defendant is, itself, responsible for every item of the plaintiff's cost overrun; it may mean that the defendant must lead evidence to explain what, in fact, was the impact of each of the acts complained of on the project, as was done in McAlpine Humberoak Ltd v McDermott International Inc (No 1). Litigation inevitably imposes burdens on the parties; the court must exercise its powers to ensure that, as far as possible, these burdens are not unreasonable and are not unnecessarily imposed.
In my opinion, the court should approach a total cost claim with a great deal of caution, even distrust. I would not, however, elevate this suspicion to the level of concluding that such a claim should be treated as prima facie bad. Nevertheless, the point of logical weakness inherent in such claims, the causal nexus between the wrongful acts or omissions of the defendant and the loss of the plaintiff, must be addressed. I put to one side the straightforward case where each aspect of the nexus is apparent from the nature of the breach and loss as alleged. In such a case the objectives of the pleading may be achieved by a short statement of the facts giving rise to the causal nexus. If it is necessary for the given case for this to be supported by particulars, this should be done. But, in other cases, each aspect of the nexus must be fully set out in the pleading unless its probable existence is demonstrated by evidence or argument and further, it is demonstrated that it is impossible or impractical for it to be spelt out further in the pleading. Moreover, the court should be assiduous in pressing the plaintiff to set out this nexus with sufficient particularity to enable the defendant to know exactly what is the case it is required to meet and to enable the defendant to direct its discovery and its attention generally to that case. And it should not be overlooked that an important means of achieving the result that, once it starts, the trial should be conducted without undue prejudice, embarrassment and delay, is by ensuring that, when it begins, the issues between the parties including this nexus are defined with sufficient particularity to enable the trial judge to address the issues, to rule on relevance and generally to contain the parties to those issues. An order to this effect in a global claim was made by the Official Referee in Imperial Chemical Industries Plc v Bovis Construction Ltd, and by Moynihan J in Ralph M Lee Pty Ltd v Gardiner & Naylor Industries Pty Ltd. And if, in such a case, the plaintiff fails to demonstrate this causal nexus in sufficient detail because it is unable or unwilling to do so, then this may provide the occasion for the court to relieve the defendant of the unreasonable burden which the plaintiff would impose on it. [Footnotes omitted]
The second was the decision of Byrne J in Ipex ITG Pty Ltd v Melbourne Water Corporation [No 3] [2006] VSC 83, a decision which was referred to with approval by K Martin J in Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 3] [2019] WASC 399 at [89] ‑ [90], which concerned an application by Ipex to deliver its proposed fourth amended statement of claim (and consideration of its fifth draft of the same).
As had occurred before K Martin J, in the application prosecuted by Wood & Grieve Engineers for further and better particulars, counsel sought to rely upon some observations by Byrne J made in the context of what looked to be an 'hours claim' (not a global claim) noting his Honour's ultimate conclusion that the way that hours claim had been pleaded was inadequate and embarrassing, leading to pleading relief in that respect.[23]
[23] Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 3] [89]; ts 197 - 199 (14 October 2025).
Byrne J had in his reasons for decision recorded that in its proposed pleading, Ipex had sought to discharge its burden of proof by inviting the Court to infer causation, which would only be discharged if the Court was satisfied that there was no other causally significant factor which contributed to hours spent by its employees.[24] Noting that context, the following passage of Byrne J's reasons for decision was referred to and emphasised by counsel for Wood & Grieve Engineers:[25]
The danger of this method of presenting such a claim is that it tends to shift to the defendant the task of demonstrating that the other factors for which it is not legally responsible played such a causative role. It is for this reason that the plea may be rejected as embarrassing. But this conclusion will not follow in every case. As Smith J pointed out in Nauru Phosphate Royalties Trust v Matthew Hall Mechanical and Electrical Engineers Ltd, the fact that the evidentiary or shifting burden may pass to the defendant on a given issue does not detract from the obligation of Ipex to prove on the balance of probabilities at the end of the day that the extra FTEs and their cost have in fact been caused by the increase in the number of Help Desk calls. It must be accepted in the context of adversary litigation that this may be so and that a plaintiff has no obligation to make things easy for its adversary. Nevertheless, it cannot be gainsaid that, as a matter of forensic reality, this will often impose a great burden upon the defendant which, in many cases, is less able than the plaintiff to know what occurred from day to day and the Court will be concerned that this burden be not an unnecessary or unreasonable one. It is for this reason that the Court will be inclined to require the plaintiff to bring forward 'the precise evidence' of its loss which is within its power or to show why that is not reasonable or practicable. [Footnotes omitted]
[24] Ipex ITG Pty Ltd v Melbourne Water Corporation [No 3] [29].
[25] Ipex ITG Pty Ltd v Melbourne Water Corporation [No 3] [30].
Counsel submitted that similarly it ought be incumbent upon CPB Contractors to identify how it says the various breaches alleged impacted upon the works to cause the additional amounts claimed on a global basis, even if it cannot identify each specific loss attributable to a particular breach, as sought by paragraph 2(c) of the revised request for further particulars. Wood & Grieve Engineers maintains that it needs to know how CPB Contractors says the various breaches together led to the global sum claimed, so it may consider and interrogate the asserted causal link, and progress its defence to that.[26]
[26] ts 198 - 199 (14 October 2025).
Further, it says that its application is not a request for evidence, and complains that '[a]s it currently stands, the "costs" (and resulting "loss") pleaded by CPB Contractors at paragraph 75(a) are simply numbers on a page with no adequate explanation of what those numbers relate to.'[27] Despite being a global claim, it presses for CPB Contractors to identify the impact of the alleged breaches on the works which is said to lead to the global loss having been incurred, which detail is necessary to understand the case.[28]
[27] Wood & Grieve Engineers' outline of submissions in reply filed on 26 September 2025, par 2.
[28] Wood & Grieve Engineers' outline of submissions in reply filed on 26 September 2025, par 16.
It complains that the position adopted by CPB Contractors requires it to wait for service of CPB Contractors' expert evidence before it can properly understand CPB Contractors' case on its global claim. It says that such an approach is not consistent with the overriding objectives of case management and delay under O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA).[29]

CPB Contractors' position

[29] Wood & Grieve Engineers' outline of submissions in reply filed on 26 September 2025, par 10; ts 206 (14 October 2025).

CPB Contractors maintain that the application ought to be dismissed on its merits because:[30]
(a)the Court should not be satisfied that there is a sufficient basis to exercise its discretion to grant the leave sought;
(b)alternatively, Wood & Grieve Engineers is not entitled to the particulars sought because they are a request for evidence; and
(c)in the further alternative, Wood & Grieve Engineers' request ought to be denied when regard is had to case management principles.

Insufficient basis to exercise discretion

[30] CPB Contractors' outline of submissions filed on 19 September 2025, par 2.

As to the exercise of discretion, the Rules of the Supreme Court O 20 r 13(6) provides that an order for the provision of further and better particulars under that rule shall not be made unless a written request for the particulars required by the applicant has been filed and served within 30 days of the service of the pleadings or such other time as the Court may allow.
As to the proper approach to the exercise of discretion, counsel referred to Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361 at [37], where Kennedy J (with whom Wallwork and Wheeler JJ agreed) found refusal of a request for further and better particulars to be justified where there had been a delay in the making of a request for further and better particulars, the delay was substantial and there is no good cause for it, and furthermore where the applicant did not need the particulars requested to adequately plead its case and prepare for trial.
It is the position of CPB Contractors that, consistent with the above, the application should be dismissed because:[31]
(a)there has been significant delay in making the request, as paragraph 75(a)(iv) and Appendix L have remained unchanged for over three and a half years (that is, since the filing of the amended statement of claim on 14 February 2022);
(b)Wood & Grieve Engineers has provided no explanation, much less any reasonable explanation, for the cause of its delay in making the requests, other than an asserted reliance on CPB Contractors' statement in its further amended pleading that further particulars of paragraph 75(a)(iv) may be provided after discovery and the exchange of expert evidence (the latter of which has not yet occurred);
(c)Wood & Grieve Engineers did not need the particulars to adequately plead its defence and counterclaim, amended defence and counterclaim or re‑amended defence and counterclaim (filed on 26 August 2022, 10 October 2022 and 21 December 2022, respectively); and
(d)no proper explanation is provided of the need for the particulars (to the extent they are in fact particulars) to be provided now, rather than after the exchange of expert evidence, other than referring to the potential for a summary dismissal or a strike out application,[32] and seeking to avoid the work associated with having to 'go and sift through' the documents Wood & Grieve Engineers requested from CPB Contractors by way of targeted discovery orders.[33] CPB Contractors maintains that none of these reasons provide a proper basis for ordering the provision of further particulars, particularly when the process for the preparation and exchange of expert and lay evidence has now commenced, and a trial is not expected to take place until at least 2027.
[31] CPB Contractors' outline of submissions filed on 19 September 2025, par 19.
[32] CPB Contractors' outline of submissions filed on 19 September 2025, par 19(d), footnote 4, referring to ts 171 - 172 (27 August 2025).
[33] CPB Contractors' outline of submissions filed on 19 September 2025, par 19(d), footnote 4, referring to ts 171 (27 August 2025).

As to the exercise of discretion, counsel also notes that further and better particulars should only be ordered to be provided where they are necessary to provide the true enunciation of the issues that are to be tried and the identification of the case that has to be met.[34] Again, it is noted that Wood & Grieve Engineers was able to identify and respond to the case pleaded with sufficient precision in its defence and counterclaim (as amended and re-amended). In addition, counsel sought to emphasise that particulars must also be as brief as the nature of the case permits because the case may be obscured by too much detail, and unnecessary particularity may fetter a party's case at trial.[35]
[34] CPB Contractors' outline of submissions filed on 19 September 2025, par 20, citing Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [16].
[35] CPB Contractors' outline of submissions filed on 19 September 2025, par 21, citing Dow Corning Australia Pty Ltd v Girys [6] - [10]. See the Rules of the Supreme Court O 20 r 8(1).
Counsel also notes that the request made at paragraph 2(c) of the revised minute (reproduced at [22] above), is pressed so that CPB Contractors might 'pin its colours to the mast', without the loss to Wood & Grieve Engineers of its 'silver bullets'.[36] CPB Contractors complain that it appears that one purpose of the request is to fetter CPB Contractors' case at trial by requiring it to provide unnecessarily detailed particulars before the exchange of evidence, which is not a proper basis on which to make an order for the provision of further and better particulars.[37] Further, it complains that the request made at paragraph 2(c) ignores, and is inconsistent with, the manner in which CPB Contractors expressly pleads its global and/or modified total costs claim.[38]

Request for evidence

[36] CPB Contractors' outline of submissions filed on 19 September 2025, par 26, referring to ts 175 - 176 (27 August 2025).

[37] CPB Contractors' outline of submissions filed on 19 September 2025, par 26.

[38] CPB Contractors' outline of submissions filed on 19 September 2025, pars 27 - 28.

As is noted above, the application is opposed on the basis that Wood & Grieve Engineers is not entitled to the particulars sought because they are a request for evidence. CPB Contractors complains that the requests made at paragraphs 2(a) and (b) of the revised minute (reproduced at [22] above), seek evidence by way of a description of the actual costs and payments and identification of what each cost or payment was for; and the request made at paragraph 2(b) also seeks particulars and evidence in relation to SWPs that are neither referred to in paragraph 75(a)(iv) nor Appendix L of the pleading (that is, SWP 2001, 1101, 3003, 6008, 9100, 3002, 4307, 4303, 9001, and 4401).[39]

Inconsistent with case management principles

[39] CPB Contractors' outline of submissions filed on 19 September 2025, par 22.

In the further alternative, CPB Contractors says that the request ought to be denied when regard is had to case management principles.
That is, consistent with modern case management principles, the application for further and better particulars should be considered in the context of pre‑trial directions.[40] In this proceeding, directions made on 27 August 2025 require the parties to take certain steps between 28 November 2025 and 10 March 2026, so as to identify and confer in relation to the respective disciplines of expert evidence to be led at trial and the list of issues or questions for expert evidence; and for CPB Contractors to provide to Wood & Grieve Engineers an indication of the material it intends to brief the experts with by 28 November 2025.
[40] CPB Contractors' outline of submissions filed on 19 September 2025, par 23, citing Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 6] [2016] WASC 218 [46].
CPB Contractors says that this material will enable Wood & Grieve Engineers to 'efficiently review the, in the order of 200,000, discovered documents as part of preparing its defence', said to be needed before the deadline imposed on CPB Contractors (by 28 November 2025) and the reciprocal deadline imposed on Wood & Grieve Engineers (of 13 February 2026).[41] It maintains that it should not be required to identify or summarise the evidence sought in the request prior to compliance with the orders above and the exchange of expert evidence. It complains that compelling the production of the additional particulars sought at this stage of the proceeding would be inefficient and unlikely to be helpful.[42]

Conferral

[41] CPB Contractors' outline of submissions filed on 19 September 2025, pars 23 - 24, referring to orders 13 ‑ 15 of the orders made on 27 August 2025.

[42] ts 213 - 214 (14 October 2025).

In the papers filed before the hearing of the application, the adequacy of conferral (particularly as to the conferral which occurred before Wood & Grieve Engineers moved for the provision of further and better particulars at the directions hearing on 27 August 2025) was raised as a matter which supported the dismissal of the application,[43] and was refuted on behalf of Wood & Grieve Engineers.[44] At the hearing on 14 October 2025, counsel for CPB Contractors made plain that it did not press for determination of whether the conferral had been adequate, content for the application to be decided on the merits.[45]
[43] CPB Contractors' outline of submissions filed on 19 September 2025, par 15.
[44] Wood & Grieve Engineers' outline of submissions in reply filed on 26 September 2025, pars 17 - 30.
[45] ts 213 (14 October 2025).
I accept that in all of the circumstances, careful consideration as to whether there had in fact been compliance with the Rules of the Court O 59 r 9(1) and the Court's previous orders as to the manner in which interlocutory applications were to be made, would be of no real utility as insistence on strict compliance would only lead to unnecessary costs being incurred.[46] Further, the parties' respective positions had by the hearing on 14 October 2025 become clear and the issue joined.[47]
[46] LexisNexis, Civil Procedure Western Australia (at 4 November 2025) [59.9.4], citing Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 [14].
[47] LexisNexis, Civil Procedure Western Australia (at 4 November 2025) [59.9.4], citing Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [60].
While adequacy of conferral was not in the end pressed on behalf of CPB Contractors, the application was not prosecuted in an efficient manner when regard is had to the use of court time. In the end, counsel for Wood & Grieve Engineers was content for the application to be determined without the Court revisiting the oral submissions made on 27 August 2025.[48] Not insubstantial court time was used on that occasion to provide an 'overview' of what was sought by way of particulars, to 'start the conferral process in part', and to allow CPB Contractors insight as to what was sought.[49]
[48] ts 190 - 191 (14 October 2025).
[49] ts 168 - 181 (27 August 2025); ts 190 (14 October 2025).

Disposition

The power to compel provision of further and better particulars and the principles to be applied to the application are well settled.
Pursuant to the Rules of the Supreme Court O 20 r 13(3), the Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in that party's pleading, and the order may be made on such terms as the Court thinks just. As to the principles to be applied, I refer to and apply the observations made in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 55 at [2] ‑ [4], as if set out here in full.
Further, I proceed on the basis that refusal of a request for further and better particulars may be justified in circumstances where there has been a delay in the making of a request, the delay was substantial and there is no good cause for it, and furthermore where the applicant did not need the particulars requested to adequately plead its case and prepare for trial.[50]
[50] Dow Corning Australia Pty Ltd v Girys [37].
As to the approach of the Court to pleading issues in light of current case management principles, I also have regard to the observations made by Le Miere J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 6] at [46], reproduced below:
The court discourages disputes relating to pleading issues which consume substantial amounts of time and expense which is often disproportionate to their significance to the just and effective resolution of the case. The approach of the court to pleading disputes must take into account the purposes of pleading. Those purposes relevantly include informing the court and the other parties of the case of the party putting forward the pleading. The contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions which include the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial and the exchange of witness statements and expert reports prior to trial. Nevertheless, the fundamental proposition concerning pleadings is that a party is entitled to be informed about the opponent's case with sufficient clarity to allow that party a fair opportunity to meet the case. The court will intervene if the parties do not identify with reasonable precision just what is and what is not in dispute.
Having weighed all of the circumstances and the submissions made by counsel, including the matters set out below, the application will be refused.
First, there has been delay on the part of Wood & Grieve Engineers in seeking further and better particulars, which I do not consider to be satisfactorily explained by reference to the time taken to complete discovery, the parties' early attempts at mediation or otherwise.
That said, it is clear that the action is still in its interlocutory stage, unlikely to be entered for trial in 2026, with some prospect of entry in 2027.[51] While there has been significant delay in seeking further and better particulars, the delay is not determinative of the outcome of the application.
[51] ts 125 (27 August 2025).
Secondly, in my view, CPB Contractors has pleaded its claim with sufficient particularity so as to allay any concern as to it being a bogus claim. Further, a review of the pleading does not suggest that its form was driven by a desire to disadvantage the defendant in some way, but rather the nature and complexity of the claim.
Thirdly, I accept that distinguishing between material facts, particulars and evidence is difficult,[52] and the obligation to give particulars does not require a party to disclose the evidence by which that party proposes to prove its case. Nevertheless, particulars must make the plaintiff's claim plain so that each party may know what are the issues of fact to be investigated in the hearing.[53]
[52] Jensen v Nationwide News Pty Ltd [No 2] [2018] WASC 129 [29].
[53] Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 [43].
I also accept that it is imperative that once it starts, the trial should be conducted without undue prejudice, embarrassment and delay, which is best facilitated by ensuring that when it begins, the issues between the parties, including the nexus, are defined with sufficient particularity to enable a trial judge to address the issues, to rule on relevance, and generally to contain the parties to those issues.[54]
[54] John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd [23], cited with approval in DM Drainage & Constructions Pty Ltd as trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170 [72].
In my view, at this stage of the proceeding, the particulars provided are adequate, when regard is had to the following:
(a)CPB Contractors' pleaded claims were sufficiently clear so as to allow a defence to be filed;
(b)regardless of the outcome of this application, Wood & Grieve Engineers agree to provide source documents for the actual costs referred to in the Table at paragraph 75(a)(iv) of the further amended statement of claim; and each payment from the Metropolitan Redevelopment Authority or any other entity in respect of the works the subject of the following SWPs: 7001, 3101, 4001, 4004, 6003, 7002, 4406 (which documents I understand have been discovered in the proceeding).[55] While CPB Contractors will likely still engage in an extensive review of the documents discovered, the burden is somewhat lightened by the agreed identification of evidence within the extensive discovery;
(c)the need for the provision of further particulars (or the urgency of the need) is ameliorated by the orders made to date concerning the filing and service of lay and expert evidence prior to trial. That is, by 28 November 2025 CPB Contractors must provide Wood & Grieve Engineers with an indication of the respective disciplines of expert evidence intended to be led at trial, a list of issues or questions for expert evidence and the material to be provided to the experts for them to consider as part of preparing their reports. In this case, compliance with the orders made to date with respect to lay and expert evidence, and then the filing of that evidence, ought result in Wood & Grieve Engineers knowing well in advance of trial what evidence will be put against it.
[55] CPB Contractors' outline of submissions filed on 19 September 2025, pars 11 - 12, Attachment A; ts 221 ‑ 222 (14 October 2025).
On balance, I am satisfied that proceeding as contemplated by the orders made on 27 August 2025 (and the contemplated service of expert evidence well in advance of trial), will facilitate the efficient, timely and cost‑effective management of this complex construction dispute, consistent with case management principles. Given the stage of the proceeding, fairness, efficiency and proportionality will not be so improved or promoted as to tip the balance in favour of ordering the provision of further and better particulars.
While it will likely be prudent for the parties to revisit particulars after service of lay witness outlines/statements and expert evidence, it is not necessary for the Court to now intervene. If in due course it considers necessary, Wood & Grieve Engineers may seek directions concerning the filing of responsive non‑expert evidence and for the provision of expert evidence to be staggered rather than exchanged. The application will be dismissed and I will hear the parties as to costs if not agreed.

Sch A - Appendix L to the further amended statement of claim

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Honourable Justice Strk
5 NOVEMBER 2025