DM Drainage & Constructions Pty Ltd v Karara Mining Ltd

Case [2014] WASC 170


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DM DRAINAGE & CONSTRUCTIONS PTY LTD as Trustee for DM UNIT TRUST t/as DM CIVIL -v- KARARA MINING LTD [2014] WASC 170

CORAM:   BEECH J

HEARD:   6 MAY 2014

DELIVERED          :   19 MAY 2014

FILE NO/S:   CIV 2410 of 2012

BETWEEN:   DM DRAINAGE & CONSTRUCTIONS PTY LTD as Trustee for DM UNIT TRUST t/as DM CIVIL

Plaintiff

AND

KARARA MINING LTD
Defendant

Catchwords:

Practice and procedure - Pleadings - Strike out application - Building and construction contracts - Global claims - Total cost claims - Whether arguable claim - Whether pleaded claim would embarrass, prejudice or delay the fair trial of the action

Legislation:

Supreme Court Rules 1971 (WA), O 20 r 19

Result:

Statement of claim struck out in part

Category:    B

Representation:

Counsel:

Plaintiff:     Mr P G Clifford

Defendant:     Ms P E Cahill SC & Mr A D Bereyne

Solicitors:

Plaintiff:     Lavan Legal

Defendant:     Jackson McDonald

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

Australian Goldfields NL v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191

Banabelle Electrical v State of New South Wales [2005] NSWSC 714

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215

Charlie Carter Pty Ltd v The Shop Distributive & Allied Employees Association of Western Australia (1987) 13 FCR 413

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [No 3] [2012] VSC 99

Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)

John Doyle Construction Ltd v Laing Management (Scotland) Ltd [2004] SC 713

John Holland Pty Ltd v Kvaerner R J Brown Pty Ltd (1996) 8 VR 681

Kidd v Mitchell Frederick Artus trading as Downings Legal [2013] WASC 264

Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414

Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 3] [2014] WASC 162

Lonsdale Investments Pty Ltd v OM (Manganese) Ltd [2009] WASC 188

MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271

McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd [2011] QSC 178

Nauru Phosphate Royalties Trust v Mathew Hall Mechanical & Electrical Engineering (1994) 2 VR 386

Nouvelle Homes Pty Ltd v G & M Smargiassi [2008] WASC 127

Rayney v The State of Western Australia [No 5] [2014] WASC 147

Walter Lilly & Co Ltd v Mackay [2012] EWHC 1773

BEECH J: 

Introduction

  1. The plaintiff (DM Civil) and the defendant (Karara) entered into a contract for DM Civil to construct a 135 km water pipeline.  In very broad summary, in this action DM Civil claims that Karara resequenced and redesigned the project through various directions and variation orders, and claims sums said to be due under the contract, or damages. 

  2. Karara has applied to strike out DM Civil's statement…

Continue reading DM Drainage & Constructions Pty Ltd v Karara Mining Ltd

Sign in free to access the full text

Details
AGLC
DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170
Case
[2014] WASC 170
Decision Date

CaseChat Overview and Summary

The case involved DM Drainage & Constructions Pty Ltd, who brought proceedings against Karara Mining Ltd for breach of contract, alleging that Karara Mining Ltd had failed to pay the full amount owed under their construction contract. The dispute was heard in the Supreme Court of South Australia. The central legal issue was whether the claim for an alleged total cost overrun, as pleaded by DM Drainage & Constructions, was arguable and should not be struck out. Specifically, the court had to determine if DM Drainage & Constructions' claim would embarrass, prejudice or delay the fair trial of the action.

The court considered the criteria for striking out a claim, focusing on whether the claim was arguable and if it would unduly prejudice the defendant's right to a fair trial. The court noted that while the claim was a global claim, it was still necessary to assess if the pleaded claim had any arguable basis. The court found that the claim, as pleaded, did not outline a clear basis for the alleged total cost overrun, nor did it sufficiently identify the grounds for the claim. Consequently, the court determined that the claim would likely prejudice the defendant, making it difficult for Karara Mining Ltd to mount a proper defence.

In light of these findings, the court decided to strike out the claim, as it was not arguable and would likely prejudice the fair trial of the action. The court ordered that the claim for total cost overrun be struck out and directed the parties to proceed with the remaining claims in the proceeding. The decision underscored the importance of ensuring that all claims in a pleading are both arguable and not likely to prejudice the defendant's right to a fair trial.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.