D J Piercy Pty Ltd v Parsons Management Group Pty Ltd [No 4]

[2016] WADC 86

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   D J PIERCY PTY LTD -v- PARSONS MANAGEMENT GROUP PTY LTD [No 4] [2016] WADC 86

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   2 JUNE 2016

DELIVERED          :   23 JUNE 2016

FILE NO/S:   CIV 4003 of 2013

BETWEEN:   D J PIERCY PTY LTD

First plaintiff

COCKBURN CENTRAL SELF STORAGE PTY LTD
Second plaintiff

AND

PARSONS MANAGEMENT GROUP PTY LTD
Defendant

Catchwords:

Practice and procedure application to amend statement of claim - Whether proposed pleading sets out viable causes of action

Legislation:

Nil

Result:

Application partly successful

Representation:

Counsel:

First plaintiff                  :     Mr M Curwood

Second plaintiff             :     Mr M Curwood

Defendant:     Mr J P Cook

Solicitors:

First plaintiff                  :     Frichot & Frichot

Second plaintiff             :     Frichot & Frichot

Defendant:     Mendelawitz Morton

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

Alfred Mcalpine Construction Ltd v Panatown Ltd [2001] 1 AC 518

Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68

St Martin's Property Corporations Ltd v Sir Robert McAlpine & Sons Ltd [1994] 1 AC 85

1. DEPUTY REGISTRAR HEWITT:  On 8 April 2016 the plaintiff brought a summons for leave to amend the substituted statement of claim and associated directions.  In essence the summons sought leave to amend the statement of claim in the terms of the minute presented, that the claim of the second plaintiff be discontinued, and certain procedural orders flowing from the above.

2. The claims of the plaintiffs arise out of construction work undertaken by the defendant on buildings on property formerly owned by the first plaintiff and occupied after construction by the second plaintiff.  Those buildings were intended to provide a self‑storage business to be conducted from the land and that business was undertaken and run by the second plaintiff.  It is alleged by the plaintiffs that the works undertaken by the defendant were defective and certain machinery installed by the second defendant was defective as a consequence of which certain hoists within the building were replaced and other work carried out.  The cost of the works undertaken is alleged to be $326,128 and that is the amount for which the first and second plaintiffs sue.  The complication in the case arises from the fact that although the first plaintiff was the owner of the building the second plaintiff undertook and paid for the remedial works.  At an earlier stage the defendants brought a summary judgment application in essence, as I understand it, based upon the proposition that the second plaintiff was a mere volunteer and therefore did not have standing to sue and the first plaintiff had suffered no loss.  That application found favour but the plaintiffs appealed the decision and by judgment delivered on 4 May 2014 the decisions were reversed.

3. I first direct my attention to the application that the second plaintiff's claim be discontinued.  I have no difficulty with making such an order and propose to do so.  I anticipate some complications will arise out of existing costs orders, the costs of the earlier application and appeal being reserved to the trial judge.  The difficulty with that order, in light of the discontinuance by the second plaintiff, is that it will not be involved in any such trial although obviously would have a right to make submissions in regard to any costs orders which the trial judge might be inclined to make.  I do not however see that as an obstacle to making the order allowing the discontinuance merely as a complication which will flow from that order and which can be dealt with at a later time.

4. The energies of the parties in the argument before me concerned whether or not the minute of amended substituted statement of claim which was presented with the chamber summons in fact set out a viable cause of action capable of successfully being pursued by the first plaintiff.  In that regard I shall firstly deal with the attempt to introduce a claim based on negligence which appears at par 16 of the minute.  As I understand the law loss is an essential element of a claim in negligence.  In the present case the pleading of that loss is said to be the payment by the first plaintiff to the second plaintiff of the sum of $326,128.39 on 7 September 2015 by way of reimbursement of expenses etc.  There is no pleading of any facts to support a finding that the first plaintiff was under any obligation to do so.  This writ was issued on 13 December 2013.  The loss and damage upon which the first plaintiff relies to establish its claim for a breach of duty of care did not arise until approximately two years after the writ had been issued.  It follows that when the writ was issued there was not any cause of action available to the first plaintiff for a breach of duty of care.  The loss of which it complains did not arise until about two years after the issue of the writ.  Therefore insofar as the first defendant seeks to institute a claim based on negligence in my view it is doomed to fail and in that respect the amendments for that proposed cause of action should not be allowed.

5. As to the remainder of the claim the issue crystallises to be whether the first plaintiff can claim as damages the cost of rectification work which was undertaken and paid for by the second defendant.  The pleading gives no hint as to as to the circumstances in which the rectification was undertaken nor of any arrangements for the payment of the cost between the relevant parties.  Australian courts have long recognised that monies expended by a third party at the request expressed or implied of another can be recovered from that other.  Were that the case here then the first plaintiff would be liable to the second plaintiff to reimburse it for the monies which it expended at its request.  No such plea is brought.  No case has been cited to me which establishes that such monies are recoverable absent a request either express or implied in the manner I have described.  The English position appears to be rather different and the plaintiff relied on a number of cases in the English courts of high authority.  Those cases are: St Martin's Property Corporations Ltd v Sir Robert McAlpine & Sons Ltd [1994] 1 AC 85; Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68 and Alfred Mcalpine Construction Ltd v Panatown Ltd [2001] 1 AC 518.

6. It is conceded that these authorities have not been considered in any of the Appeal Courts of the States of Australia or the High Court.

7. None of those cases are on all fours with the present circumstances but in my view they do point the way to the possibility that Australian courts might also adopt a more liberal approach to recovery in circumstances such as are presented here. Notwithstanding the differences in the facts of these cases to those presented in the present case I take the view that a plaintiff should be able to plead its case in whatever manner it chooses, unless it is demonstrated that there is no prospect whatever of that case succeeding.  The arguments presented by the defendant largely echo those of the earlier summary judgment application which were considered by Judge Keen.  It is quite possible, perhaps even likely, that the cause of action intended to be pursued by the first plaintiff will not succeed.  That is not in my view a basis for denying the opportunity to try.  For these reasons I am of the view that the plaintiffs should be permitted to amend the statement of claim substantially in the terms of the minute which has been presented but with the deletion in par 11 of the words 'which is a wholly owned subsidiary company of the plaintiff', which are conceded by the applicant plaintiff to be incorrect, and the whole of those paragraphs which seek to set up a cause of action based on a breach of duty of care.