FLDC Pty Ltd v Fenlan Pty Limited

[2020] NSWDC 271

District Court

New South Wales

Medium Neutral Citation:	FLDC Pty Ltd v Fenlan Pty Limited [2020] NSWDC 271
Hearing dates:	8 May 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Dismiss the defendants' notice of motion filed 27 March 2020. (2)   Defendants pay the plaintiff's costs of the motion.
Catchwords:	BUILDING AND CONSTRUCTION – particulars schedule - utility
Category:	Procedural and other rulings
Parties:	FLDC Pty Ltd trading as FLDC Architects (plaintiff) Fenlan Pty Limited (first defendant) Joseph Khouri (second defendant) Mariette Khouri (third defendant)
Representation:	Counsel: Ms M Castle (plaintiff) Mr J R B Pearson (defendants)   Solicitors: Paradise Charnock O'Brien (plaintiff) Shad Partners (defendants)
File Number(s):	2019/173480
Publication restriction:	None

Judgment

1. FLDC Pty Ltd trading as FLDC Architects sues Fenlan Pty Limited and Joseph and Mariette Khouri for $429,665.95 for work and services done pursuant to two contracts.  The amount claimed under the first contract comprises about 400 items, and totals $359,375.95, in addition to a lump sum item said to have been paid. 

2. In respect of this claim, Mr and Mrs Khouri and Fenlan have applied for orders that "the Plaintiff properly particularise and articulate its claim by completing the Variation Schedule". [1]  The Variation Schedule is in evidence, and is similar in form to a Scott Schedule. Completion of it would require, among other things, that the Architects attribute each of the 400 odd items claimed under the first contract to certain designs which the Architects have indicated were matters to which the items relate.

3. Ordinarily, a Scott Schedule of some type could be a useful method of dealing with multitudinous small claims such as is the case here, but its value depends on whether the defendants have different answers to the different items claimed.  If the answer is the same, the value of the schedule is non‑existent, or at least diminished.

4. The utility of the schedule is informed by the context of the present claims.  The Architects, on the one hand, have given particulars in respect of each of the items: the work done, how long it took, when it was done, how much was charged for it. These details are substantial and were sufficient to enable the filing of the defence. The defendants, on the other hand, have denied the entirety of the claim; even the written agreement signed by one of the defendants is not accepted to bind any of them.  In these circumstances, where the same denial is advanced against each item, a Scott Schedule would not narrow the issues.  In the absence of an order for reference, the Court would be left to determine whether each item is proved to the civil standard.

5. The defendants submit that if the invoiced items were linked to one or other of the limited number of designs the dispute might be narrowed. But there is no concession that any of the relevant designs fall within any agreement or give rise to any entitlement in the Architects to payment.  To allow the defendants to, in effect, interrogate the plaintiff about which line item is in respect of which design, when there is no evidence that it will narrow or shorten the dispute, is to increase the costs of the proceedings for no discernible benefit.

6. The next step in the proceedings is for the Architects to serve their evidence. There is no reason for this to be delayed by the preparation of a schedule which does not involve the provision of further details from the defendants as to their grounds for rejecting the claims. The application should be dismissed.

7. The defendants argue that some of the costs of today arise from the need for further directions. That is not a cogent argument against the plaintiff receiving the costs of the motion. Costs should follow the event.

8. Presently a status conference is set for 19 May, but that date should be postponed until after the service of evidence. 

9. The orders of the Court are:

1. Dismiss the defendants' notice of motion filed 27 March 2020.

2. Defendants pay the plaintiff's costs of the motion.

3. Vacate status conference listed on 19 May 2020.

4. Plaintiff to serve its evidence by 5 June 2020.

5. Defendants to serve their evidence by 31 July 2020.

6. Plaintiff to serve any evidence in reply by 28 August 2020.

7. List the matter for a status conference on Friday, 4 September 2020.

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Decision last updated: 04 June 2020