Deturt v Arasi - [2022] WADC 16

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   DETURT -v- ARASI [2022] WADC 16
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   10 FEBRUARY 2022
DELIVERED          :   1 MARCH 2022
FILE NO/S:   CIV 3399 of 2021
BETWEEN:   KERRY ANNE DETURT
Plaintiff

AND

CARMELO ARASI
First Defendant

ARASI CONSTRUCTIONS t/as GEN1 HOMES
Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim and for summary judgment - Discussion of whether the facts, if proven, would affect relevant limitation periods

Legislation:

Rules of the Supreme Court 1971 (WA), O 16 r 1 and O 20 r 19

Result:

Statement of claim struck out with leave to replead
Summary judgment claim dismissed

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Ms C Moss
Second Defendant	:	Ms C Moss

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Fyfe Construction Lawyers
Second Defendant	:	Fyfe Construction Lawyers

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

Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608
Hawkins v Clayton (1988) 164 CLR 539

DEPUTY REGISTRAR HEWITT:

This action commenced by a writ filed on 8 September 2021 in which the plaintiff claims damages for defects which she alleges exist in a home which was built for her by the second defendant of which the first defendant is a director and was the supervisor of the works on the home in question. A statement of claim, some 24 pages long, was filed on 19 October 2021, and on 17 November 2021 the defendants applied for leave for an order that the statement of claim be struck out. Additionally, judgment was sought dismissing the action against the first defendant.
The basis for the application is not set out in the chambers summons but appears in the submissions which were filed on 3 February 2022. The defendants rely on the provisions of O 20 r 19 of the Rules of the Supreme Court 1971 (WA) for the strike out and insofar as a judgment is sought for the first defendant, the application relies on O 16 r 1 of the Rules of the Supreme Court.
The statement of claim under attack is an extensive document running to some 24 pages. Much of the information contained in the statement of claim is evidence and has no proper place in a pleading. The extent of this contamination is severe and, in my view, justifies a strike out application on that ground alone. That is not to say that there is not within these materials an identifiable valid cause of action, but no defendant should have to face page upon page of referrals to various emails and other communications which, if they are relevant at all, amount to no more than evidence. The level of contamination in my view is so high that it justifies striking out the entire statement of claim to give the plaintiff the opportunity to present a better constructed statement of claim which focuses on the matters which are in issue. On that score, I now turn to the factual basis of the plaintiff's claim.
The plaintiff complains of a myriad of problems with her house, but they were to a large extent the subject of proceedings in the State Administrative Tribunal which ultimately led to a Deed of Settlement and Release (Deed) between the parties executed on 20 August 2019.[1] That Deed contained within it par 3.1 which is in the following terms:
This Deed may be pleaded as a full and complete bar to any actions, suits, complaints or proceedings commenced, continued or taken against the Applicant or against the Respondent in connection with any of the matters referred to in this Deed once fully executed.
[1] Affidavit of Carmelo Arasi sworn 16 November 2021, pages 49 - 54.
The terms of the deed are applicable, in my view, only to the defects which were the subject of the complaint which came before the State Administrative Tribunal. The plaintiff's present complaints concern the quality of the slab to the dwelling which was erected for her and defects in it which came to her attention when she received expert reports concerning the slab at a later date. Therefore, on the face of it the deed does not apply to and relieve the defendants from any potential liability in relation to defects in the slab since they were not the subject of the complaint to the State Administrative Tribunal.
The complaints in regard to the slab are that it is comprised of concrete which is of a lesser strength than that specified in the contract, the thickness of the slab is variable and below specified dimensions, that the reinforcing in the slab has been wrongly positioned, and it has not been properly married to the footings. No defence has been filed but it is clear that insofar as the first defendant seeks a judgment in his favour dismissing the action, he relies on the Deed to which I have referred and insofar as the company seeks to strike out the claim it is based on the general inadequacy of the pleading in various identified respects.
There are two main thrusts to the summary judgment application, the first being that the Deed offers a complete defence to the first defendant and the second is that in any event any claim is statute barred.
Insofar as the deed is said to provide a defence, it would only operate in the event that the present claim in fact was for defects comprised in the original complaint which was lodged on 21 January 2019. The defects in the slab of which the plaintiff now complains were not the subject of complaints in the January 2019 complaint. It therefore follows that there is no bar to the present proceedings in favour of the first defendant offered by the deed.
The next matter is to consider whether or not, on the face of the materials, the cause of action pursued by the plaintiff is clearly statute barred, has no hope of success and should be dismissed.
In that respect the terms of the contract between the plaintiff and the second defendant in relation to the house are relevant. In cl 28(a) the defects liability period is specified to be four months or such other time as is specified in Appendix I to the contract. The contract is annexed to the affidavit of the first defendant and in Appendix I the defects liability period is stated to be 18 weeks.[2]
[2] Affidavit of Carmelo Arasi sworn 16 November 2021, page 12.
Paragraph 29 of the contract provides that:
Except in cases of fraud, dishonesty, deliberate concealment [of] defects which a reasonable inspection would not have disclosed, the end of the Defects Liability Period or completion of work notified to be made good under clause 28, whichever is later, is evidence of the sufficiency of the Works and materials to comply with the requirements of the Contract.
The plaintiff's position is that the first defendant was the person supervising the works and the defects of which she complains such as the strength of the concrete, the placing of the reinforcing and so forth must have been obvious to the first defendant. On that score the first defendant identifies himself as a man with very considerable experience in building houses and one who would presumably be well acquainted with the process of testing the strength of concrete and know the appropriate way in which reinforcing steel should be arranged within the slab. It is therefore arguable that the first defendant, although aware of these problems, nonetheless proceeded with the building without attending to their rectification. In the course of the building, various claims for progress payments were made and a final claim was made upon the completion of the works.
Clause 26(b) of the contract refers to the fact that upon the building reaching practical completion the builder must give the owner a written notice in the form which is set out in Appendix III of the contract. There is no executed Appendix III exhibited in the first defendant's affidavit, but presumably one was signed, since that was a precondition of final payment.
The argument advanced by the plaintiff is that the first defendant must have been well aware of the deficiencies in the way the house had been built, aware that those deficiencies were not readily apparent on inspection and chose to give a certificate of practical completion without regard to those matters. The plaintiff seeks to characterise that behaviour as misleading and deceptive conduct for which the first defendant is personally responsible. As to the limitation period which applies to misleading and deceptive conduct claims, firstly, I would have considered that the various progress claims made by the second defendant through the first defendant carried with it the implication that the works for which payment was claimed had been carried out in accordance with the plans and specifications which formed part of the building contract. The plaintiff alleges that was not the case, hence the allegation of misleading and deceptive conduct for which she seeks to bring him to account.
The action which is sought to be brought by the plaintiff against the first defendant is outside the limitation period prescribed by the relevant legislation. In this case there was no express statement concerning the quality of the slab and therefore there would be no direct assertion by the first defendant for himself or on behalf of the second defendant that the slab was in fact built in accordance with the requirements of the contract. There are, however, numerous cases in which silence has been held to be misleading and deceptive conduct and an example is to be found in the case of Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608. Somewhat similar flavour is to be found in the case of Hawkins v Clayton (1988) 164 CLR 539. In the latter case the court held that a limitation period did not run because the very cause of action which was intended to be pursued prevented the would-be plaintiff from being aware of the existence of the cause of action and pursuing it. Those cases, in addition to the clause which I quoted from the contract which exclude instances of fraud, dishonesty, deliberate concealment of defects etc persuade me that a limitation defence is potentially unavailable to the first defendant or indeed the second defendant in this case. For that reason, I am not prepared to grant a summary judgment in favour of the first defendant against the plaintiff.
Asto the strike out application, the statement of claim is of a quality that a defendant should not have to grapple with. It is, as I have said, full of irrelevancies and it fails to focus on the real issues in this case. The issues are that the slab was defective in a number of particulars and it can be argued that the first defendant was aware of the deficiencies and concealed them from the plaintiff. On that point the plaintiff argues that the first defendant is personally liable to the plaintiff for misleading and deceptive conduct, as is the second defendant and, additionally, the second defendant is liable on a contractual basis.
For these reasons I consider that it is appropriate to strike out the whole of the statement of claim hoping that in doing so the plaintiff, who appears in person, can produce a statement of claim which is a great deal shorter, concentrates on the real issues in the case, and discards the vast amount of surplusage which is contained in the present statement of claim.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate
1 MARCH 2022