Gazis v DAVIES
[2021] WADC 67
•7 JULY 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GAZIS -v- DAVIES [2021] WADC 67
CORAM: REGISTRAR HOGAN
HEARD: 11 JUNE 2021
DELIVERED : 7 JULY 2021
FILE NO/S: CIV 4613 of 2020
BETWEEN: ANASTASIA BERTHA GAZIS
Plaintiff
AND
CHRISTOPHER PAUL DAVIES
First Defendant
KIM DAVIES
Second Defendant
Catchwords:
Practice and procedure - Application to strike out parts of the statement of claim - Application for summary judgment
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application for summary judgment dismissed
Statement of claim struck out
Representation:
Counsel:
| Plaintiff | : | Mr D J Morris |
| First Defendant | : | Mr D K Zusman |
| Second Defendant | : | Mr D K Zusman |
Solicitors:
| Plaintiff | : | HHG Legal Group |
| First Defendant | : | Bennett & Co |
| Second Defendant | : | Bennett & Co |
Case(s) referred to in decision(s):
Banque Commerciale SA, (En Liqn) v Akhil Holdings Ltd [1990] HCA 11
Bruce and Odhams Press Ltd [1936] 1 KB 697
Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413; (1987) 21 IR 112; ATPR (Digest) 46-021
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
REGISTRAR HOGAN:
By application 12 May 2021 the defendants sought orders:
1.Pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules) summary judgment be granted in favour of the defendants; or alternatively
2.Pursuant to O 20 r 19 of the Rules, pars 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21 and 22 of the plaintiff's further amended statement of claim dated 12 March 2021 be struck out on the grounds that they:
2.1do not disclose a reasonable cause of action; and/or
2.2are scandalous, frivolous or vexatious; and/or
2.3are otherwise an abuse of the process of the court.
3.The plaintiff pay the defendants' costs of this application and, in the event that summary judgment is granted the costs of the action, on an indemnity basis, alternatively on a party/party basis to be assessed if not agreed and payable forthwith.
The defendants filed a submission dated 25 May 2021 and the following affidavits in support of the application:
1.Affidavit of Kim Davies sworn 15 March 2021.
2.Second affidavit of Kim Davies affirmed 27 April 2021.
3.Affidavit of Christopher Paul Davies affirmed 15 March 2021.
4.Affidavit of Gregory Jerome Williams sworn 15 March 2021.
5.Affidavit of Jessica Sara Chapman affirmed 15 March 2021.
6.Second affidavit of Jessica Sara Chapman affirmed 10 May 2021.
In response to the application the plaintiff filed a submission dated 1 June 2021 and the affidavit of Anastasia Bertha Gazis affirmed 12 April 2021.
It is well established that the power to order summary judgments should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
The plaintiff Anastasia Bertha Gazis filed a writ on 15 December 2020 against the first defendant Christopher Paul Davies and the second defendant Kim Davies. The defendants filed and served an appearance on 25 January 2021. On 19 February 2021 the plaintiff filed an amended statement of claim. On 12 March 2021 the plaintiff filed a further amended statement of claim.
Pursuant to O 20 r 19(3) of the Rules an application to strike out a pleading must be made within 21 days of the service of the amended pleading to which the application refers. The amended statement of claim was filed and served on 12 March 2021.
Pursuant to O 16 r 1(1) of the Rules an application by a defendant for summary judgment must be made within 21 days after the appearance has been filed. In this case the defendants filed a memorandum of appearance on 25 January 2021. This application was therefore out of time. Leave of the court was sought to bring the application for summary judgment out of time.
In considering the application I am mindful that the parties had been engaged in extensive ongoing conferral regarding the pleadings.
Taking that into account it does not appear that the defendants acted unreasonably in delaying the application for summary judgment and leave is granted for bringing that application.
Essentially the plaintiff pleads that:
1.The second defendant by her agent negligently made false representations but for those representations having been made the plaintiff would not have entered into a contract for the sale of land by offer and acceptance dated 13 September 2018 to purchase a property situated in City Beach for the purchase price or at all.
2.The first defendant negligently carried out renovation works at the property in an unspecified period prior to the contract for sale being signed.
3.The second defendant negligently permitted the first defendant to carry out those renovation works at the property in breach of her licensee's duty and proprietor's duty and the second defendant caused or allowed the first defendant to carry out work in breach of various statutory regimes.
The further amended statement of claim pleads negligent misrepresentation (further amended statement of claim, pars 5 - 9), defective building works (further amended statement of claim, pars 10 ‑ 22), and statutory breaches at par 21 of the further amended statement of claim.
There is no plea as to how a duty arises for either the negligent misstatement claim, the defective works or the statutory breaches. The plaintiff states there is a duty but does not particularise it.
Counsel for the plaintiff admitted:
Now, the one thing that I would say to qualify that submission is that I accept what my friend says to the extent that a duty of care in these circumstances needs to be properly particularised with respect to the salient features that are said to give rise to that duty where the pleaded harm is purely economic. And further and better particulars, I concede, are required. But that would have been the proper approach to the concerns that my friend has expressed. He need only have requested further and better particulars of the pleaded duty.
I can tell you that I've formulated - they're not prepared to a standard that is ready to be handed up and placed on the court record, but I have formulated 17 separate salient features that I’m ready to plead in further and better particularisation of the pleaded duty of care.
It is not sufficient for the plaintiff to seek to cure the defects in the pleadings by formulating further and better particulars.
The primary purpose of pleadings is to define with clarity and precision the issues or questions of fact and law which are in dispute between the parties and that are to be decided by the court.
Pleadings ensure a basic requirement of procedural fairness and to do so must state the case sufficiently clearly to allow the other party a fair opportunity to meet it: Banque Commerciale SA, (En Liqn) v Akhil Holdings Ltd [1990] HCA 11.
There are authorities to the effect that further and better particulars cannot rectify a pleading that is defective on grounds of its generality. See for example Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413; (1987) 21 IR 112; ATPR (Digest) 46-021 (at 419).
The material facts should appear with clarity and appropriate particularity on the face of the pleadings, an application to strike out the whole or part of an embarrassing pleading is often preferred to an attempt to remedy it by a request for further embedded particulars: Bruce and Odhams Press Ltd [1936] 1 KB 697, 713.
The failure of the pleadings in this case to adequately identify the cause of action leads me to the conclusion that the statement of claim should be struck out in relation to pars 10 - 22.
It is appropriate in this case for the entire statement of claim to be struck out and for the plaintiff to file a fresh statement of claim.
Having read the submissions of both parties and had the benefit of the oral submissions I am not satisfied that a properly pleaded statement of claim would not disclose a real question to be tried and accordingly the application for summary judgment is dismissed.
The orders of the court are that:
1.The further amended statement of claim be struck out.
2.The plaintiff file a statement of claim within 21 days.
3.The application for summary judgment be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EW
Court Officer
7 JULY 2021
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