D and K Developments Pty Ltd v Kumar
[2016] NSWSC 1307
•13 September 2016
Supreme Court
New South Wales
Medium Neutral Citation: D & K Developments Pty Ltd v Kumar [2016] NSWSC 1307 Hearing dates: 13 September 2016 Decision date: 13 September 2016 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Leave to re-plead cross-claim refused.
Cross-claimants to circulate any proposed further amended cross-claim by 15 September 2016.
Notices of motion of 19 July 2016 and 6 September 2016 stood over to 16 September 2016.
Cross-claimants to pay the costs of the proposed cross-defendants applications relating to the cross-claim forthwith.Catchwords: PRACTICE AND PROCEDURE – pleadings – whether leave should be granted to cross-claimants to file proposed amended cross-claim Category: Procedural and other rulings Parties: D & K Developments Pty Limited (Plaintiff/First Cross-Defendant/Applicant)
Rajeev Kumar (First Defendant/First Cross-Claimant/Respondent)
Rajwant Kaur (Second Defendant/Second Cross-Claimant/Respondent)
Danny Lance John Rhind (Second Cross-Defendant)
Mitchell Brandman (NSW) Pty Limited (Third Cross-Defendant/Applicant)Representation: Counsel:
Solicitors:
B Le Plastrier (Plaintiff/First & Second Cross-Defendants/Applicant)
D S Weinberger (Third Cross-Defendant/Applicant)
I George (First & Second Defendants/Cross-Claimants/Respondents)
K & L Gates (Plaintiff/First Cross-Defendant/Applicant)
Russo & Partners (First & Second Defendants/Cross-Claimants/Respondents)
Hall and Wilcox (Third Cross-Defendant/Applicant)
File Number(s): SC 2015/370487
EX TEMPORE Judgment
-
I am dealing with an application by the cross-claimants for leave to amend their cross-claim.
-
The cross-claim was originally filed on 17 May 2016.
-
On 8 July 2016 an amended cross-claim was filed.
-
On 19 July 2016 the third cross-defendant, by notice of motion, sought an order dismissing that iteration of the cross-claim.
-
On 1 September 2016 the cross-claimants circulated a form of proposed further amended cross-claim.
-
I heard argument about that document on 2 September 2016 and expressed serious misgivings as to its form.
-
In those circumstances, in order to give the cross-claimants a further opportunity to put their pleadings in order, I directed that they circulate a proposed further cross-claim. Such a document was circulated on 9 September 2016.
-
I have given careful consideration to that document. I am not prepared to grant the cross-claimants leave to file the document in that form. The document is, in my opinion, confusing and embarrassing.
-
In the first place the contentions upon which the cross-claimants are said to rely are distributed between the heading "Nature of Dispute" and the heading "Cross-Claimant’s [sic] Contentions".
-
In my opinion, the function of the form prescribed for use in this list requires that, under the heading "Nature of Dispute", no more is to be inserted than just that; a brief description of the nature of the dispute between the parties.
-
The party’s contentions, the equivalent of pleadings, should be placed in a logical order under the heading "Cross-Claimants' Contentions" at the conclusion of the document.
-
The material which is placed in the current draft under that heading, in my opinion, raises more questions than it answers.
-
For example, at par 30 it is alleged that the second cross-defendant, Mr Rhind, made various representations. It is later alleged that Mr Rhind, by making those representations, has engaged in misleading or deceptive conduct. No hint is given in the document as to why that is so. In particular, it is not said that anything that he represented was untrue.
-
In par 35 it is said that a tender price said to have been provided by the first cross-defendant, D & K Developments Pty Ltd, and the price in the contract later entered into between D & K and the cross-claimants was "impossible to achieve". It is not revealed why that is so or what legal consequences are said to flow from it. For example, it is not stated whether the alleged fact that the tender price or a contract price is "impossible to achieve" is a breach of some other agreement or is contrary to the representations earlier alleged.
-
The document then goes on to make allegations about the third cross-defendant, Mitchell Brandman (NSW) Pty Ltd. There appears to be an allegation in par 36 concerning a contract made between the third cross-defendant and Westpac Banking Corporation. The allegation appears to be that, somehow, the cross-claimants were the beneficiaries of that contract; although how that is so is not revealed.
-
The pleading then goes on in par 37 and, I think, in the second half of par 38, to set out alleged breaches of that contract. However, the pleading does not go on to say what legal consequences flow so far as concerns the cross-claimants.
-
Further in par 41 it is alleged that the cross-claimants terminated their contract with the first cross-defendant for non-performance, over-charging and the supply of a false statutory declaration. But there is no anterior allegation that the first cross-defendant failed to perform any part of the contract, did engage in over-charging or did supply a false statutory declaration.
-
There is later an allegation in pars 44 and 45 that the statutory declarations that the first cross-defendant provided were "untrue"; but no attempt is made to link that with an allegation of a breach of contract or to say why the statutory declarations were untrue.
-
There are other shortcomings in the document which it is not necessary for me to outline.
-
I propose to give the cross-claimants one further chance.
-
I make the following orders:
Direct that the cross-claimants circulate by 5pm on 15 September 2016 any proposed further amended cross-claim statement.
Stand over the cross-defendants' notices of motion of 19 July 2016 and 6 September 2016 to 16 September 2016 before the Technology & Construction List Judge.
Order that the cross-claimants pay the proposed cross-defendants' costs of their applications in relation to the cross-claim. Those costs to be assessed and payable forthwith.
**********
Decision last updated: 15 September 2016
0
0
0