Gove v Black
[2000] WASC 23
•11 FEBRUARY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: GOVE -v- BLACK & ORS [2000] WASC 23
CORAM: MASTER BREDMEYER
HEARD: 10 JANUARY 2000
DELIVERED : 11 FEBRUARY 2000
FILE NO/S: CIV 2375 of 1997
BETWEEN: SHARON LEE GOVE
Plaintiff
AND
RICHARD ASH BLACK
First DefendantASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second DefendantTHE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third DefendantCITY OF FREMANTLE
Fourth DefendantDREXEL LONDON (A FIRM)
Fifth Defendant/Third PartyHALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant/First Fourth Party
Catchwords:
Pleading - Application for leave to amend
Legislation:
Nil
Result:
Application allowed in part
Representation:
Counsel:
Plaintiff: Mr J P T Olivier
First Defendant : Mr P H Bremer
Second Defendant : No appearance
Third Defendant : Mr J H Healy
Fourth Defendant : No appearance
Fifth Defendant/Third Party : Mr D Chew
Sixth Defendant/First Fourth Party : Mr A H Hershowitz
Solicitors:
Plaintiff: Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant/Third Party : Minter Ellison
Sixth Defendant/First Fourth Party : Freehill Hollingdale & Page
Case(s) referred to in judgment(s):
Gove v Black & Ors [1999] WASC 178
Case(s) also cited:
Nil
MASTER BREDMEYER: The plaintiff applied inter alia for leave to amend her statement of claim in terms of a minute of 2 September 1999. On 24 September 1999, in a published judgment, Gove v Black & Ors [1999] WASC 178, I refused leave to amend in terms of that minute. I said further amendments were required to par 36, par 48, par 53, par 54, par 55 and par 56 to give effect to my reasons. I ordered the plaintiff to file and serve a fresh minute within 14 days and I gave liberty to apply. The plaintiff has prepared a new minute of amended statement of claim dated 8 October 1999. The fifth defendant has objected to the pleading of certain paragraphs in that minute. Those objections are set out in a letter to the plaintiff's solicitors dated 1 November 1999. I now propose to rule on those objections.
Paragraph 48(b)
The fifth defendant's objection to this paragraph is as follows:
"Vague, ambiguous and oppressive in that it fails to plead/identify which clause or clauses of the specifications provide that the fifth defendant, as opposed to any architect and/or building supervisor who might be employed by the owner, was to inspect the timber.
Also, the specifications were anticipatory in nature as it set out a proposed method of construction. The specifications themselves do not form a contract to ensure that the specifications are met. That is the scope of a separate administration or supervisory contract. If it is alleged that the fifth defendant specifically entered into a written or oral contract to administer the building contract and/or ensure that the specifications were met, this should be specifically pleaded and particulars provided."
I consider the pleading is adequate without reference to the specification number. If the fifth defendant (the architect) is unable to find this reference in the specifications, that can be the subject of a request for particulars. When I read par 47, par 48 and par 49 together, it is not alleged that the fifth defendant entered specifically into a contract to administer the building contract and to ensure that the specifications were met. The pleading is adequate.
Paragraph 49
The fifth defendant's objection to this paragraph is as follows:
"Vague, ambiguous and oppressive in that although it refers to paragraphs 47 and 48(b) in the re‑amended statement of claim, it fails to provide any particulars whatsoever of the fifth defendant's alleged undertaking to assume the responsibility to inspect the timber used in the balcony and ensure that requirements of the specifications were met and that suitable timber was used. Again, it appears to plead that the fifth defendant undertook these responsibilities by simply preparing the specifications. We repeat the objections set out above in respect of paragraph 48(b)."
I consider that this paragraph does not plead an arguable cause of action. Merely because, as is pleaded in par 47, the architect owed a duty to prepare and complete the specifications with reasonable skill and care, and one of those specifications stated that the architect was to inspect the timber, does not mean that the fifth defendant undertook to inspect the timber used in the balcony to ensure his specifications were met and that suitable timber was used. That would be so only if the architect who prepared the specifications was engaged also to supervise the construction of the balcony. This is not alleged. I consider par 49 should not be allowed.
Paragraph 50
The fifth defendant's objection to this paragraph is as follows:
"Vague, ambiguous and oppressive in that it still fails to plead how, why and when, the fifth defendant is alleged to have known or ought to have known that Oregon/Douglas Fir was substituted for Jarrah in the construction of the balcony. As you are aware, Master Bredmeyer considered this objection to be good (see page 9 of the reasons for judgment). If the plaintiff's case is that the fifth defendant knew or ought to have known that Oregon/Douglas Fir was substituted for Jarrah in the construction of the balcony because it undertook to supervise the construction of the building or ensure that the building specifications were met, this should specifically be pleaded in paragraph 50 and particulars provided in respect of the alleged supervisory contract and/or undertaking to ensure that the building specifications were met. Our objection highlights your client's misapprehension as to the purpose of the specifications as opposed to an administration/supervisory contract."
I agree with the objections. How did the architect know or ought to have known that Oregon/Douglas fir was substituted for jarrah in the construction of the balcony? Did he know, or ought to have known, because he was engaged as the supervising architect? Or did he know, or ought to have known, because, although not engaged as supervising architect, he happened to inspect the project during, or shortly after, its construction? Particulars of this knowledge need to be pleaded. I will not allow par 50(a) and par 50(b) in their present form.
Paragraphs 55 to 58 inclusive
The fifth defendant's objections to these paragraphs are as follows:
"Vague and ambiguous in that it fails to adequately specify or particularise the facts, matters and/or circumstances upon which the plaintiff relies and the quantum the plaintiff intends to claim, in respect of past and future medical treatment, special damages and past and future economic loss. You will note from pages 10 and 11 of Master Bredmeyer's reasons for judgment that the plaintiff was specifically ordered to provide the fifth defendant with these particulars."
These paragraphs plead particulars of the plaintiff's medical treatment, her residual disability, her loss of enjoyment of life, costs of babysitting, travelling expenses, etc (par 57) and particulars of loss of earning capacity (par 58). I will order the plaintiff to provide particulars of expenses listed (par 57) to date and particulars of loss of earning capacity (par 58) to date within one month. The other particulars are adequate at present.
I will give leave to the plaintiff to amend the statement of claim in terms of the minute subject to the deletion of par 49, par 50(a) and par 50(b). The plaintiff is to file and serve a fresh pleading with these deletions. I will order the plaintiff to provide particulars of the losses to date specified in par 57 and par 58 within a month.
The plaintiff is to pay the fifth defendant's costs of the hearing on 10 January 2000 in any event. Costs of the other parties are reserved.
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