Gross v Cityway Pty Ltd
[2018] WADC 124
•5 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GROSS -v- CITYWAY PTY LTD [2018] WADC 124
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 11 SEPTEMBER 2018
DELIVERED : 5 OCTOBER 2018
FILE NO/S: CIV 3891 of 2016
BETWEEN: JENNIFER GROSS
Plaintiff
AND
CITYWAY PTY LTD
Defendant
Catchwords:
Practice and procedure - Application to strike out statement of claim - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971 O 20
Result:
The application is dismissed
Representation:
Counsel:
| Plaintiff | : | Ms A Dowley |
| Defendant | : | Mr M Tedeschi |
Solicitors:
| Plaintiff | : | Encore Legal Pty Ltd |
| Defendant | : | G.A. Lacerenza & Associates |
Case(s) referred to in decision(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Codelfa Construction Pty Ltd v State Railway Authority (NSW) (1982) 149 CLR 337
Donoghue v Stevenson [1932] AC 562
Macmahon Contractors Pty Ltd v CWDC Pty Ltd [2017] WASC 211
Tame v State of New South Wales [2002] HCA 35
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161
PRINCIPAL REGISTRAR MELVILLE:
The plaintiff commenced proceedings against the defendant by writ dated 20 October 2016 for loss and damage suffered by way of termite damage to her property as a result of the defendant's alleged breach of express and implied terms of a contract and alleged negligence in failing to provide adequate termite protection services to the property and advice to the plaintiff relating to termite activity, appropriate treatment, management and prevention options in respect thereto.
The defendant has now applied to strike out the substituted statement of claim filed the 16 October 2017. The application does not comply with the Rules of the Supreme Court 1971 (RSC) O 20 r 19(3)(a) or r 19(b) insofar as it was not brought within 21 days of the service of the substituted statement of claim and does not specify the grounds referred to in RSC O 20 r 19(1) upon which certain of the plaintiff's pleadings are sought to be stuck out. The defendant also seeks to strike out the reply.
The procedural background
By way of orders made 24 November 2016 it was ordered that the defendant file and serve its defence and that the time by which the parties may make any application for summary judgment, or to strike out any pleading, be extended to 7 days after the mediation conference, which was listed for the 16 February 2017. Following mediation it was ordered the mediation be adjourned sine die and the case be listed for directions in August 2017.
By orders made the 1 August 2017 the defendant was given 14 days to file and serve a request for further and better particulars with the plaintiff to file and serve further and better particulars within a further 14 days thereafter and that the parties were to provide each other with a list of discoverable documents within a further 14 days.
By orders made the 3 October 2017 the defendant was given a further 14 days to file and serve any application to strike out the statement of claim.
On the 16 October 2017 the plaintiff filed a substituted statement of claim.
By orders made the 12 February 2018 further procedural orders were made in respect of filing the substituted statement of claim and the substituted statement of defence, for interrogation, and for the exchange of expert evidence including provision for the plaintiff to provide the defendant with access to the property the subject of the litigation.
The plaintiff has also filed a schedule of damages on 23 February 2018.
It is not in dispute that the dispute has been mediated, discovery provided, or that the plaintiff has provided to the defendant his expert evidence.
The defendant's delay
It is necessary for the defendant to obtain an extension of time to bring this application. It is well outside the time prescribed by the RSC and well outside the extended time previously ordered by the court. The defendant has not filed any evidence by way of affidavit to justify or explain the delay but relies on a passage in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 [5], [19].
An extension of time for the making of this application could nevertheless be justified if it could be established that the interests of justice required that extension, because of, for example, irreparable prejudice to the first defendant or prejudice to the trial process or the efficient utilisation of the resources of the parties and of the Court. That prejudice might be established, for example, by showing that the disputed pleading would unnecessarily protract either the time to be taken in preparation for trial or the conduct of the trial itself by reason of the inclusion of an allegation which had no reasonable prospect of success.
These considerations require, in turn, a consideration of the substituted statement of claim and the defendant's criticisms thereof before the application to extend time can be determined.
In the substituted statement of claim it is alleged that the contract contains expressed terms and, at par 5 of the substituted statement claim is alleged that it contains in implied terms, implied as a matter of law and as a matter of fact, namely:
(a)that the defendant would carry out the services in a proper and proficient manner and with due skill and care;
(b)the defendant would comply with the provisions of the Australian Standards applying from time to time to the provision of the defendant's services, being relevantly AS 3660.2 as amended from time to time.
The plaintiff goes onto particularise those implied terms.
Some of those particulars, by way of example, include an alleged obligation to detect inspectable termite activity, to make all reasonable attempts to access all reasonably accessible parts of the residence (including beneath the residence) for the purposes of providing 'Termite barrier including under house', to carry out appropriate treatment to treat any infestation, to provide proper notification of treatment and to advise the plaintiff of ongoing maintenance and prevention measures including owner requirements in accordance with particularised or specified industry practice and AS 3660.2.
By par 6 the plaintiff alleges that in the circumstances she relied on the defendant's expertise and accordingly the defendant owed her a duty of care both in tort and in accordance with the Civil Liability Act2002 (WA) div 2.
The statement of claim goes on to plead at par 16 that the defendant breached the contract and the alleged duty of care by failing to:
(a)comply with the expressed terms of the contract in the provision of the 'termite barrier including under house';
(b)comply with the 'Yearly Maintenance Service - Procedure' publication;
(c)honour the timber replacement guarantee;
(d)carry out the services in a proper and proficient manner and with due skill and care; and
(e)comply with the provisions of the Australian Standards applying from time to time to the provision of the defendant's services being relevantly AS 3660.2.
The plaintiff then goes onto provide particulars of the alleged breach.
In my view many of the particulars can be criticised as they appear to beg as many questions as they answer. The particular that the defendant failed to make all reasonable attempts to access all reasonably accessible parts of the residence for the purposes of providing the 'termite barrier including under house' simply begs the question what reasonable attempts had not been made and what reasonably accessible parts of the residence were not accessed and why it is said they were reasonably accessible.
By Particular F the plaintiff alleges that the defendant has not taken all necessary steps to honour the guarantee. What the defendant should have done but did not do, that would have constituted one or more or all of those necessary steps, or why they were necessary is not pleaded.
Finally, the plaintiff alleges as a result of these breaches of the express and implied terms of the contract and the duty of care, she has suffered loss and damage. In this respect the plaintiff claims either the cost of demolition of the building, or the cost of renovating the damage, or alternatively the reduction in value as the result of termite damage.
The purpose of pleadings has been summarised by his Honour Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 [4] – [7]:
4.It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
5.In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly the exchange of written submissions.
6.Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and appraising the parties to the proceedings of the case that has to be met.
7.In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
Mindful that one of the basic purposes of the pleading is to put the other party on notice of the case it has to meet, it is worthwhile to consider substituted defence filed in these proceedings. The amended substituted statement of defence filed on 14 August 2018 admits the existence of the contract between the parties and the existence of the guarantee. It then alleges that the plaintiff in or about 2005 built extensive extensions to the dwelling and in so doing disturbed the chemical barrier that had been put in place by the defendant. The defendant goes on to allege the plaintiff in building the extensions failed to re-treat the premises for termites in those areas affected by the building activity, and or failed to reinstate a termite barrier, and failed to utilise termite treated timber as part of timbers used in the extensions. The extensions were particularised as enclosing the carport and veranda on the eastern side of the dwelling, adding or extending the northern side of the dwelling, closing the front door entry to the northern frontage of the dwelling, constructing the new entry on the western side of the extended dwelling, and laying the concrete slab on the extensions created, and constructing walls enclosed with untreated timber frames.
The defendant pleads these extensions created an unprotected area capable of allowing ingress to the untreated wooden structure or extensions by termites.
Finally, the defendant alleges that by building the extensions in this manner the plaintiff was negligent and or reckless to the presence of termites.
In light of the substituted statement of claim, the defence and in light of the fact that the parties had been to mediation, provided discovery, and the plaintiff has provided expert evidence, it seems clear that the defendant is well appraised of the nature of the claim that has been brought and consequently well placed to defend itself.
The defendant complains that the plaintiff's use of the expressions 'termite activity', 'no activity', 'termite infestation', 'live activity', 'detected activity' and 'further infestation' in pars 11 - 15 of the substituted statement of claim and a failure to clearly state whether it is current or past activity statement of claim cause it 'significant prejudice'. With respect I do not see any prejudice. Even less do I see any 'significant' prejudice. It seems to matter very little whether the termite activity is past or present to the defendant's liability in contract or tort, save perhaps for any limitation defence.
The defendant complains that the plaintiff has not identified the timbers that need replacing. In my view this can be remedied by the provision of further and better particulars or an order in respect thereof.
The defendant complains that the plaintiff, in failing to plead the five matters identified in Codelfa Construction Pty Ltd v State Railway Authority (NSW) (1982) 149 CLR 337 required to establish an implied term in a contract; namely;
•It must be reasonable and equitable;
•It must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
•It must be so obvious that it goes without saying;
•It must be capable of clear expression;
•It must not contradict any express term of the contract,
has therefore failed to plead a cause of action based on the breach of an implied term. In my view these facts should more accurately be regarded as particulars of an implied term, the allegation of the existence of an implied term being the allegation of material fact necessary to establish the cause of action.
The defendant says that the alleged implied term is inconsistent with the express terms of the contract. That will be a matter for the trial judge. In any event, I have no evidence of it and no evidence can be brought on an application of this nature (RSC O 20 r 19(2)).
The defendant says that as a matter of law the plaintiff cannot have a claim bases on the Civil Liability Act 2002 div 2. In my view the defendant is correct, but in the circumstances of this case this does not warrant the granting of an extension of time to bring a strike out application. It is a small point.
The defendant says the nature of the common law claim in tort is not identified. In my view the plaintiff is not required to give the nature of the common law claim a name. All the plaintiff is required to do is to plead the material facts. Whether those facts give rise to a recognised tort is a question of law that does not need to be pleaded (RSC O 20 r 8). In any event in my view the facts as pleaded plead a cause of action in negligence: Donoghue v Stevenson [1932] AC 562, Tame v State of New South Wales [2002] HCA 35 [9] - [10], [53] ‑ [54], [88] - [89].
The defendant complains that the particulars of the allegation that the defendant breached the terms (express or implied) of the contract and breached the duty of care allegedly owed to the plaintiff by failing to comply with the provisions of Australian Standard AS 3660.2 are objectionable.
However, in my view the effect of the particulars of that allegation is to simply further identify the nature of the alleged failure to comply with AS 3660.2, more particularly by failing to provide proper notification of treatment for the initial barrier treatment, including the durable notice, in compliance with industry practice, the Health Regulation Act 1956, the National Construction Code and the AS 3660.2. It seems implicit in the pleading that the requirements to comply with industry practice, the Health Regulation Act and the National Construction Code are referred to or are incorporated into AS 3660.2. If that is the position the defendant knows the case it has to meet. If those publications and practices are not referred to or incorporated into AS 3660.2 the plaintiff will not be able to prove the this allegation and the defendant will have no difficulty in defending the case as it is pleaded in par 16e.
The defendant then complains that the plaintiff has not pleaded when the termite damage occurred, so prejudicing it in its limitation defence, the defendant having raised this defence for the first time in par 22 of its Amended Substituted Statement of Defence filed the 15 August 2018. In my view the question of when the cause of action accrued should not be determined in a strike out application of this nature but is a question to be determined at trial: Macmahon Contractors Pty Ltd v CWDC Pty Ltd [2017] WASC 211 [43].
The plaintiff filed a substituted reply to the reply to the Substituted Statement of Defence. Insofar as the plaintiff denies or does not admit allegations raised in the defence the plaintiff has done no more than join issues on matters in respect of which there would already have been an implied joinder of issue under RSC O 20 r 15 in the absence of a Reply. To the extent the denials raised in the Reply are difficult to understand and follow (given the attempts to incorporate pleadings from the statement of claim into the reply and the consequent difficulty in trying to read from two separate documents), no harm is otherwise done. To the extent the Reply make admissions of allegations raised in the defence, the defendant is not prejudiced. To the extent the Reply raises new issues the defendant is not prejudiced, but to the contrary, is placed on notice of issues it needs to address at trial.
In my view the statement of claim sufficiently sets out the material facts of the action and any deficiencies can be rectified by a request for further and better particulars or an order the plaintiff provide them. In my view to entertain this application is to do exactly what Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority said the courts should be reluctant to do. In my view there is little to be gained by striking out the statement of claim or the reply and in the circumstances the defendant has failed to persuade me the interest of justice requires an extension of time to bring the application.
Accordingly the application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
COURT OFFICER4 OCTOBER 2018
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