Devine Constructions Pty Ltd v Stowe Australia Pty Ltd - [2022] QSC 51

SUPREME COURT OF QUEENSLAND

CITATION:

Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51

PARTIES:

DEVINE CONSTRUCTIONS PTY LTD ACN 114 040 845

(plaintiff/respondent)

v

STOWE AUSTRALIA PTY LTD ACN 002 556 603

(first defendant)

PROFIRE SYSTEMS PTY LTD ACN 081 006 724 (FORMERLY KNOWN AS PROFIRE (QLD) PTY LTD) AS TRUSTEE FOR PROFIRE (QLD) UNIT TRUST ABN 91 905 798 318

(second defendant/applicant)

BEYFIELD PTY LTD T/AS EAST COAST MECHANICAL SERVICES (IN LIQUIDATION) ACN 055 838 438

(third defendant)

PHILIP CHUN & ASSOCIATES PTY LTD ACN 007 401 649

(fourth defendant)

NOFIRE PTY LTD T/AS FYREGUARD ACN 114 404 278

(fifth defendant)

FILE NO/S:

3559 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2022

JUDGE:

Applegarth J

ORDER:

Paragraphs 97, 97A, 103, 126, 126A and 132 of the further amended statement of claim filed on 3 December 2021 are struck out.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the plaintiff sued five defendants for breach of contract or negligence arising out of construction of high rise towers – where the pleading alleges in a single lengthy paragraph breaches by the second defendant of numerous obligations that are said to have resulted in defects and other consequences – where defects are listed in hundreds of pages of schedules and thousands of pages of further particulars – where the second defendant alleges deficiencies in the plaintiff’s pleading of its contract claim – whether parts of the plaintiff’s contract pleading have a tendency to prejudice or delay the fair trial of the proceeding because they compress separate allegations of breach and consequences of breach

Uniform Civil Procedure Rules 1999 (Qld) rr 5, 146(1)(f)

Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281, cited
Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77, cited
Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248, cited
Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221, cited
Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, cited

COUNSEL:

M T Hickey for the applicant/second defendant
M Williams for the respondent/plaintiff

SOLICITORS:

DLA Piper Australia for the applicant/second defendant
Carter Newell for the respondent/plaintiff

This building litigation concerns the construction of high-rise unit developments. The plaintiff, Devine, sues five defendants. Three defendants brought strike-out applications that I heard on 31 March 2022. The fourth defendant’s application and the fifth defendant’s application to strike out parts of the negligence pleadings against each of them succeeded, with leave to re-plead on terms.
The second defendant’s (Profire’s) application to strike out critical parts of the separate negligence claim against it also succeeded. I gave ex tempore reasons on each of the three applications in relation to the negligence claims.
The balance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Devine Constructions Pty Ltd v Stowe Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QSC 51
Decision Date: 7 April 2022

CaseChat Overview and Summary

Devine Constructions Pty Ltd sued Stowe Australia Pty Ltd and others for breaches of contract or negligence in relation to the construction of high-rise towers. The primary legal issue before the court was whether parts of Devine’s pleadings had a tendency to prejudice or delay the fair trial of the proceeding due to the compression of separate allegations of breach and consequences of breach into a single paragraph. The court also had to decide if the plaintiff's pleadings sufficiently identified the breaches and consequences of breach in a manner that would not unfairly prejudice the defendants.

The court found that certain paragraphs of the plaintiff's pleadings were overly broad and combined multiple allegations in a single paragraph, which made it difficult for the defendants to respond adequately. The court concluded that these paragraphs had a tendency to prejudice or delay the fair trial of the proceeding. Consequently, the court decided to strike out specific paragraphs from the plaintiff's pleadings and grant leave to replead on certain terms. The court ordered that certain paragraphs be struck out, with leave to replead, and directed the parties to confer and agree on a date by which the plaintiff would circulate a new proposed pleading to the other parties. The court also directed the parties to agree on the terms of leave to replead, a timetable for closing pleadings, and any issues related to costs.

The court's final order was to strike out specific paragraphs of the plaintiff's pleadings, namely paragraphs 97, 97A, 103, 126, 126A, and 132 of the further amended statement of claim filed on 3 December 2021. This order was made to address the identified deficiencies in the pleadings and to facilitate a fair and efficient trial process.

Orders

Orders of the court

Paragraphs 97, 97A, 103, 126, 126A and 132 of the further amended statement of claim filed on 3 December 2021 are struck out.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Limitation periods may not loom so large in relation to the subcontract for Stage 4 which is alleged to have been completed on or about 15 November 2018. Clarification is required as to Devine’s case in relation to when the alleged Profire Stage 4 Defects first became evident or able to be discovered upon reasonable enquiry. Paragraph 132 currently says that they first became evident or able to be discovered upon reasonable enquiry and inspection during 2014. This date is obviously wrong and the product of a word processing duplication of paragraph 103. That is an additional reason why paragraph 132 should be struck out. Conclusion On this aspect of Profire’s application, and for the reasons given, I intend to order that paragraphs 97, 97A, 103, 126, 126A and 132 be struck out, with leave to replead on terms. By way of clarification, paragraph 126 is the counterpart to paragraph 97 in respect of the subcontract for Stage 4 and paragraph 132 is the counterpart of paragraph 103. I will direct the parties to confer and agree a date by which a new proposed pleading by Devine is circulated to the other parties so as to ascertain their attitude to leave being granted to replead, the terms upon which any leave to replead is granted, a timetable for pleadings to close and any issue as to costs. For the moment, the only order that I will make is that paragraphs 97, 97A, 103, 126, 126A and 132 of the further amended statement of claim filed on 3 December 2021 are struck out.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51
PARTIES:	DEVINE CONSTRUCTIONS PTY LTD ACN 114 040 845 (plaintiff/respondent) v STOWE AUSTRALIA PTY LTD ACN 002 556 603 (first defendant) PROFIRE SYSTEMS PTY LTD ACN 081 006 724 (FORMERLY KNOWN AS PROFIRE (QLD) PTY LTD) AS TRUSTEE FOR PROFIRE (QLD) UNIT TRUST ABN 91 905 798 318 (second defendant/applicant) BEYFIELD PTY LTD T/AS EAST COAST MECHANICAL SERVICES (IN LIQUIDATION) ACN 055 838 438 (third defendant) PHILIP CHUN & ASSOCIATES PTY LTD ACN 007 401 649 (fourth defendant) NOFIRE PTY LTD T/AS FYREGUARD ACN 114 404 278 (fifth defendant)
FILE NO/S:	3559 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2022
JUDGE:	Applegarth J
ORDER:	Paragraphs 97, 97A, 103, 126, 126A and 132 of the further amended statement of claim filed on 3 December 2021 are struck out.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the plaintiff sued five defendants for breach of contract or negligence arising out of construction of high rise towers – where the pleading alleges in a single lengthy paragraph breaches by the second defendant of numerous obligations that are said to have resulted in defects and other consequences – where defects are listed in hundreds of pages of schedules and thousands of pages of further particulars – where the second defendant alleges deficiencies in the plaintiff’s pleading of its contract claim – whether parts of the plaintiff’s contract pleading have a tendency to prejudice or delay the fair trial of the proceeding because they compress separate allegations of breach and consequences of breach Uniform Civil Procedure Rules 1999 (Qld) rr 5, 146(1)(f) Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281, cited Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77, cited Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248, cited Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221, cited Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, cited
COUNSEL:	M T Hickey for the applicant/second defendant M Williams for the respondent/plaintiff
SOLICITORS:	DLA Piper Australia for the applicant/second defendant Carter Newell for the respondent/plaintiff