Heaven Builders Pty Ltd v Moustafa

[2023] ACTMC 27

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Heaven Builders Pty Ltd v Moustafa

Citation: 

[2023] ACTMC 27

Hearing Dates: 

14 June 2023

Decision Date: 

4 August 2023

Before:

Magistrate Temby

Decision: 

See [165].

Catchwords: 

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – strike out application – whether Third-Party statement of claim discloses reasonable cause of action – where pleading fails to comply with the procedural rules to such an extent that it fails to expose the case the party intends to run – whether leave to replead should be given – where certain causes of action sufficiently disclosed to warrant granting of leave to replead

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) ss 124A, 124B

Construction Occupations (Licensing) Act 2004 (ACT) ss 28, 31

Construction Occupations (Licensing) Regulation 2004 (ACT) r 19

Court Procedures Rules 2006 (ACT) rr 20, 302, 303, 406, 407, 430, 432, 425, 1147

Cases Cited: 

Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; (2020) 280 FCR 265

Findex Group Limited v McKay [2022] ACTSC 192

Georges v Georges [2022] NSWDC 558

M1 v R1 & Ors [2022] NSWDC 409

Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

Parties: 

Heaven Builders Pty Ltd ( Plaintiff)

Nour Moustafa ( First Defendant)

Marwa Moustafa ( Second Defendant)

Khalil Khattak ( First Third-Party)

Muhammad Naizi ( Second Third-Party)

Mice Kljusuric ( Third Third-Party)

Syeda Gul ( Fourth Third-Party)

Representation: 

Counsel

B Buckland ( Plaintiff, Third-Parties)

Solicitors

Bradley Allen Love Lawyers ( Plaintiff, Third-Parties)

Self-Represented ( First Defendant)

Self-Represented ( Second Defendant)

File Number:

CS 182 of 2022

MAGISTRATE TEMBY:

Table of Contents

Introduction

Summary

Litigation context for Third-Party claims

Third-Party claims

First Third-Party statement of claim

Second Third-Party claim

Third Third-Party claim

Fourth Third-Party claim

Summary judgment / Strike out application

Position of the Third-Parties

Position of the Defendants

Relevant Rules

Third-Party claims

Pleadings

Rules governing summary judgment / strike out applications

Principles applicable to the determination of summary judgment / strike out applications

Consideration

Third-Party notices

First and Second Third-Party claims – alleged breaches of the Second Contract

First Third-Party claim – other possible claims

Disposition of application in relation to the First Third-Party claim

Second Third-Party claim – other possible claims

Disposition of application in relation to the Second Third-Party claim

Third Third-Party claim

Fourth Third-Party claim

Costs

Orders

Introduction

1․The proceedings concern a dispute between the Plaintiff and the Defendants with respect to the Plaintiff’s construction of a residential dwelling for the Defendants. The Defendants filed a counterclaim against the Plaintiff and also filed four Third-Party claims. This decision concerns a summary dismissal application made by the four Third-Parties.

2․Specifically, by an Application in Proceeding filed on 18 May 2023, Khalil Khattak (the First Third-Party), Muhammad Niazi (the Second Third-Party), Mice Kljusuric (the Third Third-Party) and Syeda Gul (the Fourth Third-Party), seek summary judgment in relation to third-party claims that have been brought against…