Gross v Cityway Pty Ltd - [2018] WADC 124

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WADC 124
Decision Date: 5 OCTOBER 2018

CaseChat Overview and Summary

Gross filed a statement of claim against Cityway seeking damages for injuries sustained in a slip and fall accident. Cityway made an application to strike out the claim on the basis that it was an abuse of process. The matter was heard in the Supreme Court of Queensland. The key legal issue before the court was whether Gross's statement of claim disclosed a cause of action, despite Cityway's application to have it dismissed. The court had to consider whether the claim was frivolous, vexatious, or an abuse of the court's process, as well as whether there was a real prospect of success.

The court found that Gross's claim was not frivolous or vexatious and that there was a real prospect of success. The allegations in the statement of claim, if proven, would likely establish a cause of action for damages. The court also noted that the claim was not an abuse of process and that the application to strike out was without merit. The court held that the claim should proceed to trial, and the application was dismissed. The court found that Gross's statement of claim was sufficient to warrant a trial and that it did not constitute an abuse of process. The application to strike out the claim was dismissed, and the matter was set down for trial.

Orders