JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HARKFORD PTY LTD -v- COVENTRY SQUARE CONSTRUCTION PTY LTD [2013] WADC 62
CORAM: DAVIS DCJ
HEARD: 10 APRIL 2013
DELIVERED : 3 MAY 2013
FILE NO/S: CIV 3769 of 2011
BETWEEN: HARKFORD PTY LTD
Plaintiff
AND
COVENTRY SQUARE CONSTRUCTION PTY LTD
Defendant
Catchwords:
Practice and procedure - Appeal from a registrar dismissing plaintiff's application to strike-out parts of the defendant's defence and counterclaim - Application for extension of time - Pleading requirements for loss and damage for breach of contract - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 O 20 r 19
Result:
Appeal allowed
Portion of defendant's defence and counterclaim struck out
Defendant permitted to amend to replead claim
Representation:
Counsel:
Plaintiff: Mr W Vogt
Defendant: Mr G J Douglas
Solicitors:
Plaintiff: Vogt Graham Lawyers
Defendant: Hotchkin Hanly
Case(s) referred to in judgment(s):
Allen v Western Power Corporation [2010] WADC 104
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Banque Commerciale SA, En liquidation v Akhil Holdings Ltd (1990) 169 CLR 279,
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
British Westinghouse Electric Co Ltd v Underground Electric Railways Co Ltd [1912] AC 673
Bruce v Odhams Press Ltd [1936] 1 KB 697
Burns v MAN Automotive (Aust) Pty Ltd [1986] HCA 81; (1986) 161 CLR 653
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Cavanagh v Sunners [2000] NTSC 2
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Dare v Pulham (1982) 148 CLR 658
F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Fletcher (as Trustee for the Brian Fletcher Family Trust) v St George Bank Limited [2010] WASC 75
Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu [2004] WASC 54
Hadley v Blaxendale (1854) 156 ER 145
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Liddelow v Gelavis [No 2] [2008] WASC 64
Maghiar v Trajkovski (Unreported, WASCA, Library No 960757, 4 September 1996)
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65
Perestrello v United Paint Co Ltd [1969] 1 WLR 570
Peruvian Guano Company v Bockwoldt (1983) 23 CH D 225
Total Waste Management Pty Ltd v The City of Kalgoorlie–Boulder [2010] WASC 234
DAVIS DCJ: On 27 December 2012 the plaintiff made an application for an extension of time within which to apply to strike-out the defence and counterclaim, and an order striking out certain paragraphs of the defence and counterclaim pursuant to Rules of the Supreme Court 1971 (RSC) O 20 r 19(1)(a), (b) and (c). The particular paragraphs sought to be struck out related to the defendant's…
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- Case
- [2013] WADC 62
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the plaintiff's application for an extension of time should be granted, and if so, under what conditions. This required the court to consider the factors outlined in Allen v Western Power Corporation, including the reasons for the delay, the prejudice to the parties, and the need for a fair and just resolution. The court also needed to evaluate the affidavits provided by the plaintiff's solicitors and the correspondence between the parties' solicitors.
The court found that the plaintiff's application for an extension of time should be granted, subject to certain conditions. These included the plaintiff providing further details to substantiate its claims that the defence and counterclaim disclosed no reasonable cause of action, would prejudice, embarrass or delay the fair trial of the action, or were frivolous or vexatious. The court also required the defendant to file a fresh defence and counterclaim, changing paragraph numbers to align with the latest statement of claim. The court emphasised the importance of facilitating a fair and just resolution of the issues between the parties with minimum delay and expense.
The final orders included granting the plaintiff's application for an extension of time, subject to the conditions outlined above. The plaintiff was required to provide further details to substantiate its claims, and the defendant was instructed to file a fresh defence and counterclaim. The court emphasised the importance of resolving the issues fairly and efficiently, and the need to minimise delay and expense for both parties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In determining the plaintiff's application for an extension of time within which to make the strike-out application I should take into account all relevant circumstances including the reasons for the delay in bringing the application, the prejudice the plaintiff will suffer if the time limit is not extended, the prejudice that the defendant will suffer if the time limit is extended and the need to facilitate the fair and just resolution of the issues between the parties with minimum delay and expense: Allen v Western Power Corporation [2010] WADC 104 [62] (Derrick DCJ). In looking at the plaintiff's application for an extension of time, I have had regard to the court file and two affidavits of Willfried Vogt, from the plaintiff's solicitors, sworn 24 July 2012 and 27 December 2012 in support of the application for the extension of time. The relevant chronology is, briefly, as follows. After the defence and counterclaim was filed on 16 April 2012, there followed interlocutory applications relating to both the pleadings and discovery, with the plaintiff filing two amendments to the statement of claim. The second amended statement of claim was filed on 7 June 2012, following correspondence between the solicitors for the parties about alleged defects in the plaintiff's pleadings. On 3 July 2012 the plaintiff filed its request for further and better particulars of par 26 of the defence and counterclaim. The defendant did not answer the request within the time specified in the request. By letter dated 18 July 2012 the plaintiff's solicitors wrote to the defendant's solicitors about this and advised that if answers were not served by 20 July 2012, an application would be made seeking an order pursuant to RSC O 20 r 19. In that letter of 18 July 2012 the plaintiff's solicitors set out the contention that par 26 disclosed no reasonable cause of action and would prejudice, embarrass or delay the fair trial of the action, or alternatively was frivolous or vexatious. On 24 July 2012 the plaintiff applied for orders in the same terms as those applied for in the application the subject of this appeal. The matter was listed to be heard before Deputy Registrar Hewitt on 9 August 2012. On 31 July 2012 the defendant's solicitors wrote to the plaintiff's solicitors concerning the directions which should be made and agreed that the plaintiff's strike-out application should proceed straight to a special appointment with submissions to be filed. In that letter of 31 July 2012 the defendant's solicitors also:(a)asserted that there had been no conferral as to the particulars of the plaintiff's solicitor's three assertions that par 26 disclosed no reasonable cause of action, would prejudice, embarrass or delay the fair trial of the action, or was frivolous or vexatious;(b)requested the plaintiff's solicitors to state clearly in writing why it was said that the pleading disclosed no reasonable cause of action, would prejudice, embarrass or delay the fair trial of the action, or was frivolous or vexatious; and(c)advised that if the plaintiff's objections were valid, the defendant's solicitor was instructed to file a fresh defence and counterclaim to meet those objections and to do so in any event to change paragraph numbers to meet the latest statement of claim.