Eurest (Australia) Support Services Pty Ltd v Fluor Australia Pty Ltd
[2001] WASC 285
EUREST (AUSTRALIA) SUPPORT SERVICES PTY LTD -v- FLUOR AUSTRALIA PTY LTD [2001] WASC 285
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 285 | |
| Case No: | CIV:1481/2000 | 3 OCTOBER 2001 | |
| Coram: | HASLUCK J | 17/10/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for particulars allowed in part | ||
| B | |||
| PDF Version |
| Parties: | EUREST (AUSTRALIA) SUPPORT SERVICES PTY LTD (Trading as EUREST AUSTRALIA) FLUOR AUSTRALIA PTY LTD |
Catchwords: | Contract Claims for breach of contract Quantum meruit Adequacy of response to request for further and better particulars of claim Turns on own facts |
Legislation: | Supreme Court Rules, O 20 r 8, O 20 r 13 |
Case References: | Dare v Pulham (1982) 148 CLR 658 Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181 Trade Practices Commission v George Weston Foods Pty Ltd (1979) 39 FLR 182 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Thorp v Holdsworth (1876) Ch D 637 Wenham v Ella (1972) 127 CLR 454 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
FLUOR AUSTRALIA PTY LTD
Defendant
Catchwords:
Contract - Claims for breach of contract - Quantum meruit - Adequacy of response to request for further and better particulars of claim - Turns on own facts
Legislation:
Supreme Court Rules, O 20 r 8, O 20 r 13
Result:
Application for particulars allowed in part
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr C MacLean
Defendant : Mr P B O'Neal
Solicitors:
Plaintiff : Phillips Fox
Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Dare v Pulham (1982) 148 CLR 658
Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181
Trade Practices Commission v George Weston Foods Pty Ltd (1979) 39 FLR 182
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Case(s) also cited:
Thorp v Holdsworth (1876) Ch D 637
Wenham v Ella (1972) 127 CLR 454
(Page 3)
1 HASLUCK J: This is an application by the defendant for orders requiring the plaintiff to provide further and better particulars pursuant to O 20 r 13 of the Supreme Court Rules.
2 The defendant had previously filed a request for further and better particulars of the statement of claim, the reply and the plaintiff's defence to counterclaim. The plaintiff filed and served answers to the request on 23 July 2001. The defendant submits that there has not been a sufficient response to the request for further and better particulars. It is against this background that the defendant has referred the matter to the court for a ruling.
3 I must begin by looking at the nature of the dispute between the parties as reflected in the pleadings filed and served to date.
4 The dispute between the parties arises out of the construction of the Murrin Murrin nickel project. The plaintiff company carries on business as a provider of support services for the mining industry. The defendant company carries on business as a provider of engineering services.
5 On or about 5 June 1998, by written deed of novation, the defendant took over the responsibilities of Murrin Murrin Operations Pty Ltd (described in the pleadings as "MMO"). This meant that the defendant company became both superintendent and principal under a contract whereby the plaintiff was to provide various services for reward at rates set out in a contract dated 22 May 1997 ("the contract"). The services in question concerned the provision of infrastructure for a camp for construction workers and also to run the camp and to provide meals for the workers.
6 The plaintiff alleges in its statement of claim that it provided the services in question in accordance with the terms and conditions of the contract. It says that the defendant, as superintendent, has neglected or refused to certify that payment for the services due to the plaintiff in breach of the contract and the defendant, as principal, has neglected or refused to make payment for such services in breach of an implied term of the contract. It is said that by reason of the defendant's breach of contract, the plaintiff has suffered loss and damage in the sum of $11,717,581.10.
7 The plaintiff says further, or alternatively, that on or about 4 September 1998 the defendant purported to remove catering services from the plaintiff's scope of work under the contract and then employed Spotless Catering to take over management of the catering services. The removal of the catering services is said to amount to a breach of the
(Page 4)
- contract by the defendant in respect of which the plaintiff has suffered loss and damage.
8 The defendant has filed a defence and counterclaim in which it contends that the contract was subject to various additional terms and raises a number of issues concerning food contamination, lost productivity and overpayment. The defendant seeks to set off certain amounts from any sums owing to the plaintiff and further, and in any event, advances a counterclaim against the plaintiff.
9 The plaintiff, by its reply and defence to counterclaim joins issue with the defendant in regard to many of the matters in dispute.
10 At the hearing before me, counsel for the defendant, in the course of providing an overview of the matters in issue on the pleadings, submitted that there were a number of discrete issues before the Court to which the request for further and better particulars related.
11 First, the plaintiff alleges that it has rendered invoices claiming over $11.7 million under the contract and contends that the amounts in question are due and payable under the contract and on a quantum meruit basis.
12 Second, the plaintiff has claimed for a period of time for which it says the contract did not provide concerning the hire of buildings. This dispute has been described as the "off-hire dispute" and is said to have a value of approximately $2.4 million.
13 Third, there is a dispute about the certification of certain of the work the subject of invoices and as to whether the work was either not required or not done, or encompassed by some other aspect of the contract for which the plaintiff was paid or will be paid.
14 Fourth, it seems that in August 1998 there was a major labour disruption, as a consequence of food being allegedly contaminated by maggots. This led to the defendant terminating that portion of the plaintiff's contract for providing food services and catering. The plaintiff claims that the defendant was not entitled to terminate and seeks damages for breach of contract accordingly.
15 Fifth, the defendant says that the plaintiff has in fact received payment for invoices rendered that it was not entitled to receive and has been overpaid in a number of respects. More particularly, the defendant
(Page 5)
- says that the plaintiff has received certain profits from the wet mess in the camp amounting to $175,000, or thereabouts.
16 It is against this background that the procedural dispute concerning the provision of further and better particulars falls to be considered. Before turning to the details of the procedural dispute, it will be useful to look briefly at a number of principles bearing upon the role of pleadings and the delivery of particulars.
17 Generally, a statement of claim must fulfil two pleading functions. It must allege the facts the plaintiff claims confer a cause of action, and second it must claim the relief sought in respect of the wrong done by the defendant. To reveal a cause of action, the claim must set out the fact, or combination of facts, which give rise to a right to sue and show a connection between the plaintiff, the facts alleged and the relief sought. All the material facts essential to the cause of action must be stated in summary form and with sufficient particularity to make the defendant aware of the case made against him. Cairns: Australian Civil Procedure (2nd ed) page 212.
18 These principles are applicable to pleadings generally and are reflected in the rules of court. By O 20 r 8, every pleading must contain, and contain only, a statement in summary form of the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
19 Order 20 r 13 deals with particulars, this being the rule relied upon by the defendant in the present case. It says that every pleading must contain the necessary particulars of any claim, defence or other matter pleaded, including particulars of any misrepresentation or fraud. Where a party pleading alleges any fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies must be supplied. The Court may order a party to serve on any party particulars of any claim, defence or other matter stated in his pleading.
20 Order 20 r 13(4) provides that where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, the Court may, on such terms as it thinks just, order that party to serve on any other party particulars of the facts on which he relies.
21 In Dare v Pulham (1982) 148 CLR 658, it was noted at page 664 that pleadings and particulars must furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it.
(Page 6)
- They define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial. They give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings.
22 Pre-trial processes can include both discovery of documents and the delivery of interrogatories, but interrogatories are not, like pleadings, confined to the material facts on which the parties intend to rely. They should be, and generally are, directed to the evidence by which the party interrogating desires to establish such facts at the trial. Odgers: Principles of Pleadings and Practice (22nd ed) page 276.
23 It is apparent, then, that interrogatories are principally directed to evidentiary issues. Nonetheless, in Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181, the Court indicated that if a request for further and better particulars is similar to interrogatories, provided the request is not too detailed, and does not impose a burden disproportionate to their importance in the action, the Court will order delivery of the particulars sought.
24 I must now return to the circumstances of the present case.
25 Q2 of the defendant's request for particulars goes to par 9 of the statement of claim in which the plaintiff alleges it was an implied term of the contract that if the defendant, as superintendent, failed to issue a payment certificate, payment would be made within a reasonable time after receipt of the claim. The plaintiff says that a reasonable time in the circumstances was one month.
26 Q2 requires the plaintiff to state each fact, matter or circumstance relied upon to support the allegation that one month was a reasonable time in the circumstances.
27 The plaintiff said in answer A2 that the implication arises as a matter of law and accordingly this is not a proper request for particulars.
28 The defendant submits that a month could be said to be reasonable on a number of grounds, including such facts and matters as industry practice, prior agreement between the parties, personal belief of the defendant or expert opinion. None of these points involve the pleading of law, but rather, factual circumstances on which it could be relied to
(Page 7)
- suggest that a month was reasonable. Further, and in any event, the practice is that implications by law of a term in a contract are commonly pleaded. Seaman, Civil Procedure par 20.8.5. In failing to answer the request, the plaintiff has failed to observe two of the central requirements of particulars, these being that the defendant be aware of the case to be met at trial and to limit the generality of pleadings so as to sharply define the issues. Trade Practices Commission v George Weston Foods Pty Ltd (1979) 39 FLR 182 at 186.
29 I consider that the plaintiff's A2 is an insufficient response to the request and further and better particulars must be provided. The plea in its present form suggests that what is a reasonable time is influenced, to some extent, by the "circumstances". Accordingly, the plaintiff is obliged to set out the facts and matters bearing upon the issues.
30 The defendant's Q3 and Q4 go to par 12.1 of the claim in which it is pleaded that the defendant, as superintendent, has neglected or refused to certify that payment for services provided by the plaintiff is due to the plaintiff.
31 Q3 requires the plaintiff to provide full particulars of each and every instance the defendant, as superintendent, neglected to certify payment for services alleged to be due to the plaintiff. The plaintiff was requested to provide full particulars of each and every instance the defendant, as superintendent, neglected (Q3) and refused (Q4) to certify payment for services alleged to be due to the plaintiff.
32 The plaintiff, by its answers A3 and A4, says that, due to the admission contained in par 12 of the defendant's defence and counterclaim, this is not a proper request for particulars, as this is not a matter in issue.
33 This appears to be a reference to an admission by the plaintiff that it prepared and delivered claims to the defendant for certification.
34 I was told at the hearing before me that the plaintiff had agreed to supply a schedule which would facilitate a determination as to which invoices had been certified. Accordingly, there is no need for me to explore this issue in any depth. It seems that, by consent, I am only required to direct that the plaintiff provide further and better particulars in response to Q3 and Q4 in the form of a schedule, the exact nature of which is to be determined by the parties by agreement.
(Page 8)
35 The defendant's Q5 is directed to par 14 of the claim in which it is alleged that the sum of $11,717,581.10 is a reasonable fee for the services performed by the contract, with the result that the plaintiff is entitled to recover the same by way of quantum meruit.
36 The plaintiff objects to answering A5 upon the basis that it is not a proper request for particulars. It seeks mere evidence as to the work undertaken by the plaintiff pursuant to the contract and seeks particulars of an issue of law.
37 I was informed at the hearing that this request was conceded. Accordingly, I will direct that the plaintiff provide further and better particulars in answer to Q5.
38 The defendant's Q6 was directed to par 21 of the claim in which it is alleged by reason of the defendant's breach of contract by removal of the catering services in favour of Spotless Catering, the plaintiff has suffered loss and damage.
39 By Q6, the defendant seeks particulars of the allegation that the defendant caused the plaintiff loss and damage by giving full particulars of the date the loss accrued, the manner in which the loss accrued and the quantum of the loss.
40 The plaintiff's A6 was to the effect that further particulars would be provided after completion by the defendant of its discovery. The plaintiff's position was that the services removed from the plaintiff by the defendant (as particularised in par 16.2 of the statement of claim) and purportedly directed to be undertaken by Spotless Catering (as pleaded in par 17 of the statement of claim) are a matter entirely within the knowledge of the defendant.
41 The defendant submits that it is not a proper answer to say that the defendant is aware of the loss and damage. Even if this were true, it is entirely immaterial, because each party is entitled to be informed of the opposing party's version of the facts and what they intend to rely on at trial. Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 154.
42 The defendant submits further that the plaintiff must be taken to know what its own costs in providing the services were. In any event, the plaintiff, by its solicitors, had previously indicated that the loss was being calculated and hence the suggestion that provision of particulars had to await the outcome of discovery was inconsistent with the plaintiff's previously expressed position.
(Page 9)
43 Counsel for the plaintiff conceded that further particulars of this aspect of the claim were necessary. He submitted, however, that calculation of the loss depended upon an expert examination of the profit that would have been derived from performance of the services in question.
44 In dealing with this issue, I take account of a further submission made by counsel for the defendant that it is now over three years since the contract was terminated and over two years since the plaintiff said that it was proceeding to calculate its loss and damage. Clearly, as appears from the concession made by counsel for the plaintiff, and consistently with the general principles concerning pleading I mentioned in earlier discussion, particulars of the kind requested must be provided so that the defendant knows the case it has to meet at trial.
45 It may be that expert evidence directed to this issue will refine the allegations of the plaintiff concerning loss referable to the removal of the catering services. However, I consider that the plaintiff must be in a position to estimate the profits it would have made from the provision of such services if the contract had run smoothly and to provide further and better particulars at this stage of the loss and damage allegedly suffered.
46 It follows that, in my view, A6 is not a sufficient response and I will direct that the plaintiff provide further and better particulars in response to the particulars sought by the defendant's Q6.
47 The defendant's Q7 is directed to par 23 of the claim in which the plaintiff alleges it has suffered loss and damage by reason of the defendant's breach of contract in removing the catering services pursuant to the variation provisions contained in general condition cl 40.
48 Full particulars are required by Q7 of the date the loss accrued, the manner in which the loss accrued and the quantum of the loss.
49 The plaintiff provided in A7 the same response as it provided in A6. It follows from previous discussion that, in my view, the response was insufficient and the plaintiff will therefore be required to provide further and better particulars in answer to the defendant's Q7.
50 The defendant's Q8 was directed to par 22 of the reply and defence in which the plaintiff admitted that the plaintiff was to give the profits from the wet mess to the defendant, but denied that such profits were $175,701.22.
(Page 10)
51 By Q8, the defendant sought full particulars of the quantum of the debt and the method of calculation.
52 The plaintiff, by A8, objected to answering this request for particulars on the grounds that there was no admission that the profits of the wet mess were due and owing. Counsel for the plaintiff said that the effect of the various pleaded paragraphs bearing upon the wet mess issue was simply an acknowledgment by the defendant as to the effect of the contract, accompanied by a denial that the plaintiff had failed to comply with its obligations, or that any sum was due.
53 Counsel for the defendant responded to this line of argument by submitting that the stance adopted by the plaintiff, as reflected on the face of the pleadings, was evasive.
54 I am not satisfied that the plaintiff is obliged to provide further and better particulars in respect of the defendant's Q8. To my mind, the pleading in question contains an admission directed to the proper construction of the contractual provision. However, it does not amount to an admission that there were profits or that some amount in the nature of a debt was due and owing. Accordingly, I consider that the request for particulars reflected in Q8 proceeds from a premise which is misconceived.
55 In summary, then, pursuant to O 20 r 13, the plaintiff is required to provide further and better particulars in respect of the requests for particulars set out in the defendant's questions 2, 3, 4, 5, 6 and 7. As to the particulars to be provided in respect of Q3 and Q4, in regard to which an agreement between the parties is presumed concerning the format of the proposed schedule, I will allow liberty to apply in case it transpires that agreement cannot be reached. I will hear from the parties as to whether any further orders and directions are required.
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