Galea v Stromer
[2013] NSWSC 1720
•15 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Galea v Stromer [2013] NSWSC 1720 Hearing dates: 15/11/2013 Decision date: 15 November 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Strike out pleadings of concurrent liability in List Statement and List Response. Leave to replead.
Catchwords: PRACTICE AND PROCEDURE - list statement and list response serving functions of pleadings - application to strike out - requirements of "pleading" - apportionable claim under Pt 4 of the Civil Liability Act 2002 (NSW) - principles to be applied Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Ucak v Avante Developments [2007] NSWSC 367 Category: Procedural and other rulings Parties: Tina Louise Annette Galea (Plaintiff)
Thomas Stromer (First defendant)
Farad Electric Co Pty Ltd (Second defendant)
Sand Excavations Pty Ltd (Third defendant)
Jeffrey and Katauskas Pty Ltd (Fourth defendant)
JDT Design Pty Ltd (Fifth defendant)
Peter Smith Constructions Pty Ltd (Sixth defendant)Representation: Counsel:
GAF Connolly (Plaintiff)
SJ Duggan (First and second defendant)
A Poljak (Third defendant)
A Horvath (Fourth defendant)
AM Stewart (Fifth defendant)
CJS Purdy (Sixth defendant)
Solicitors:
Michael Rogers & Co (Plaintiff)
Thompson Cooper Lawyers (First and second defendants)
Salim Rutherford Lawyers(Third defendant)
DLA Piper (Fourth defendant)
Lander & Rogers (Fifth defendant)
Curwoods Lawyers (Sixth defendant)
File Number(s): 2012/210491
Judgment
The plaintiff is the proprietor of a property at Randwick. The first defendant is her next-door neighbour. The first defendant wished to redevelop his property. He retained the second defendant to do so. The plaintiff's case is that, in particular, as a result of excavation works carried out on the first defendant's property, her home has subsided and she has suffered loss and damage.
The first and second defendants filed a list response which, among other things, asserted that the third, fourth, fifth and sixth defendants were concurrent wrongdoers vis-à-vis the plaintiff, and that the plaintiff's loss ought to be apportioned among all those parties.
The third defendant is said to have been retained to carry out the excavation work. The fourth defendant is said to have advised on means of providing support to the plaintiff's property. The fifth defendant is said to have some other involvement in relation to designing or advising on the design of that support. The sixth defendant is said to have been the project manager.
The plaintiff, understandably enough, was somewhat concerned that she might not recover the whole of the loss that she claims and accordingly, joined the third, fourth, fifth and sixth defendants, effectively repeating against them allegations that the first and second defendants had made, not in their list response but, rather, in requests for further and better particulars.
The allegations made against each of the third to sixth defendants in the second further amended list statement are lamentably deficient in pleading (to use the incorrect term) the case against each of them.
Of particular concern is the fact that the allegation of breach of the common law duty of care said to have been owed by each of them to the plaintiff is entirely at large. The document simply says that the plaintiff's loss in respect to the construction works "was caused by the failure of each of [those defendants] to perform their obligations under their respective contracts with the first defendant and the second defendant or otherwise with due care and skill."
It is plain that the allegations must be struck out, as being utterly devoid of any material fact that might support the allegation of breach of duty. The plaintiff really does not oppose that course. It is said for her that if this is done, then the allegations raising the question of proportionate liability made by the first and second defendants in their list response should also be struck out.
For the first and second defendants, it is said that if one reads the material facts that are alleged (to the extent that any are), and combines those with various particulars that have been provided, then there is a sufficient case made out. I do not agree.
The starting point is that a claim in respect of proportionate liability is to be pleaded and particularised in exactly the same way, and with the same degree of precision, as would have happened had the matter been raised by way of cross-claim and not, as is now done where relevant, under the Civil Liability Act 2002 (NSW). So much is established by the judgment of Hammerschlag J in Ucak v Avante Developments [2007] NSWSC 367. No-one contested that statement of the relevant principles. To my mind it is plain, looking at the relevant paragraphs of the first and second defendants' list response, that they go nowhere near meeting that test. It follows that those paragraphs must be struck out.
The first and second defendants sought to suggest that in some way, their predicament flowed from an alleged failure on the part of the plaintiff properly to plead and particularise her cause of action. I accept, as was put, that a number of the particulars of breach of duty alleged against them are given in a generic way and not specifically referable to what was done. But having said that, the particulars do descend into a reasonable level of detail, which in my view is sufficient to enable the first and second defendants to understand why it is that, the plaintiff says, they breached the duty that she alleges they owed her in respect of the execution of the construction works.
Thus, I do not accept that in this respect the plaintiff has been the author of all the problems that have been argued today, and that were argued when the matter was previously before the Court.
The first and second defendants made a somewhat belated request for further and better particulars. It could be inferred that this was done at a time when the deficiencies in their pleading of their case had been agitated, and that they did so effectively by way of transfer of liability. Be that as it may, the plaintiff has provided a reply. Although the reply was not particularly prompt, it may be noted that the delay between the request and reply was substantially less than the delay between the filing of the further amended list statement and the relevant request for particulars.
It seems to me that the appropriate way to deal with this case is to strike out the relevant portions of the second further amended list statement and to strike out the relevant portions of the first and second defendants' list response. I accept that this list response was filed in response to an earlier iteration of the plaintiff's claim, but the appropriate way of bringing the dispute to a head is to take the course that I have indicated.
Once that is done, it would be open to the first and second defendants to file a list response to the second further amended list statement. If they wish to do so, they could return to the questions of apportionable claim and proportionate liability, and attempt to plead them properly and with due particularity. The plaintiff could then amend her list statement further, if so advised. The remaining defendants may consider their position once that is done.
Some of the notices of motion were specific as to the particular paragraphs of the list statement that they sought to have struck out. Others were not. Rather than seek to identify the offending passages myself, I will leave it to the parties to do that.
I should note also that the third to sixth defendants sought to have the relevant parts of the amended summons struck out. Normally, that would follow. However, in this case, it may be better to leave that until it is seen if an arguable case can be pleaded by the first and second defendants as against the plaintiff and, in reliance thereon, by the plaintiff against the third to sixth defendants.
The parties should bring in orders to give effect to what I have said. The parties will need to address also the question of the time to be allowed for the repleadings that I have identified.
Further, the question of costs arises. On the face of things, each of the moving parties should have the costs order specified in its or her notice of motion. However, since the plaintiff seeks to transfer to the first and second defendants any costs that she is liable to pay to the third and sixth defendants, I should hear counsel before making that particular order.
Before I conclude these reasons, I should note that it appears that at least some of the defendants may have requested copies of documents referred to by the plaintiff in her list statement, but that copies have not been provided. That is completely unacceptable. I say no more, given that there may be some explanation which, at present I have not had the opportunity of considering.
[Counsel addressed.]
The only live issue as to costs is as to whether the first and second defendants should indemnify the plaintiff for the costs which she must pay to the third to sixth defendants. To my mind, the real problem was that the plaintiff, instead of moving to strike out or otherwise deal with the relevant paragraphs of the first and second defendants' list response, sought rather to adopt them when she must have known, properly advised, that they were hopelessly defective.
In those circumstances, it seems to me, that first and second defendants should not have to bear the consequences of that unwise choice on the part of the plaintiff. Having said that, I do not wish to be thought to be adopting a course which could be taken as, in any way, expressing approval of the way in which the first and second defendants dealt with the proportionate liability issue in their list response.
The consequence is that the third to sixth defendants each should have the costs orders sought in their notice of motion and that the first and second defendants should pay the plaintiff's costs of the application by her to strike out the relevant paragraphs of their list response, but should not be obliged to indemnify the plaintiff for the costs payable by her to the third to sixth defendants.
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Decision last updated: 21 November 2013
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