Iasbet Ltd v Worldgroup Consulting Pty Ltd (No 3)
[2003] VSC 470
•26 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
No. 7242 of 2002
| IASBET LIMITED (ACN 066 967 502) | Plaintiff |
| v | |
| WORLDGROUP CONSULTING PTY LIMITED (ACN 092 707 689) | Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 AND 17 SEPTEMBER 2003 | |
DATE OF JUDGMENT: | 26 NOVEMBER 2003 | |
CASE MAY BE CITED AS: | IASBET LIMITED v WORLDGROUP CONSULTING PTY LTD (NO. 3) | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 470 | |
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Practice and Procedure – Pleading – Application to strike out repleaded Statement of Claim – Failure to plead material facts.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.R. Pearce | Baker & McKenzie |
| For the Defendant | Mr P.G. Cawthorn | Middletons as town agents for Acuiti Legal |
HIS HONOUR:
The Application
On 3 July 2003 I ordered in this proceeding that a substantial number of paragraphs in the plaintiff's Amended Statement of Claim be struck out. The plaintiff was given leave to file and serve a Further Amended Statement of Claim, which was done on 8 August 2003.
By a summons filed on 5 September 2003 and amended at the hearing, the defendant sought an order that paragraphs 9, 19, 30, 35, 37, 47, 51, 53 to 55, 56 to 60, 62, 62A to 62E, 64, 66, 73 to 93, 98, 100, 101, 107, 108, 110 and Schedules 2 and 3 of the Further Amended Statement of Claim be stayed and/or struck out, with leave to replead in an appropriately amended form.
Mr Cawthorn of counsel, who appeared for the defendant, submitted that "instead of carefully reconsidering and recasting its pleading so as properly to meet and cure the objections to it that were upheld by the Court, … the plaintiff has taken a churlish approach and, at its peril, has made only superficial changes to the previous pleading." He highlighted three areas of fundamental concern to the defendant.
Background
The relevant background to this dispute is set out in my earlier reasons for judgment ("my earlier judgment").[1] It is unnecessary to repeat it in these reasons, save to say that the plaintiff carries on business as a bookmaker taking bets by telephone and via the Internet and that the defendant specialises in the production of complex computer software.
[1]Iasbert Limited v Worldgroup Consulting Pty Ltd (No. 2) [2003] VSC 233.
I turn then to a consideration of the three main areas of concern and the other admittedly less important issues raised by the defendant. I will deal with them in the same order and grouping of paragraphs in which they were presented by Mr Cawthorn in his submissions.
Paragraphs 73 to 93
As I stated in my earlier judgment, these paragraphs in the Amended Statement of Claim followed a common pattern in dealing with seven Work Orders (1 to 6 and 9). The first paragraph in respect of each Work Order alleged that pursuant to that Work Order the defendant promised to do certain work, the second paragraph alleged that in breach of its obligations under the Work Order the defendant "failed to perform the work required by" the particular Work Order "or failed to perform it adequately" and the third paragraph alleged that the plaintiff had suffered loss and damage as a result of the defendant's breach of its obligations under the particular Work Order.
In paragraph 51 of my earlier judgment I ruled as follows:
"In respect of all of the relevant Work Orders, I accept the defendant's submission that the particulars of the alleged deficiencies do not correspond to the content of any obligation pleaded earlier. Whilst in a simple case it may be sufficient just to plead that the defendant promised to perform certain work, that is not the present case. In my opinion, the plaintiff should plead the specific terms of each contract on which it relies, with appropriate particulars, the breach of each term that is alleged to have been breached, with full particulars, and how loss was caused to the plaintiff as a consequence. If these matters are pleaded, the defendant will know which parts of the numerous and lengthy underlying documents relied on by the plaintiff are relevant to each Work Order and which terms the plaintiff alleges that the defendant breached and in what way. …"
In the Further Amended Statement of Claim, the plaintiff amended the first paragraph in respect of each Work Order to allege that "it was an express term of the contract arising pursuant to" the Work Order that certain work would be done; amended the second paragraph to plead that in breach of the express term of the contract the defendant "failed to perform the work required by" the particular Work Order, alternatively in breach of an implied term of the contract, the defendant "failed to perform that work competently and adequately" and added an extra paragraph, preceding the third paragraph, which alleged that the plaintiff obtained no benefit from the work performed by the defendant pursuant to the particular Work Order.
On behalf of the defendant, Mr Cawthorn submitted that paragraphs 73 to 93 of the Further Amended Statement of Claim did not satisfy the matters which I had said in paragraph 51 of my earlier judgment had to be pleaded. Mr Cawthorn first illustrated his submission by detailed reference to the pleading in respect of Work Order No. 6 in paragraphs 88 to 90 of the Further Amended Statement of Claim. He submitted that the requirements set out in Schedule 2 were contractual allegations and that the plaintiff had still not set out the specific terms of the contract on which it relied in respect of Work Order No. 6. It was not sufficient simply to state in the particulars that the express term was to be found in a number of listed documents. Further, the plaintiff was still at large in terms of what it would be able to rely on at trial.
Mr Pearce of counsel, who appeared on behalf of the plaintiff, submitted that it was entitled to plead its case in the way it chose. For example, in respect of Work Order No. 6, the plaintiff's case was that the defendant was contractually bound to produce "a functioning ReadBet betting engine" and that the defendant had breached the express term by not producing a functioning betting engine and had breached the implied term by not doing the work competently and adequately so as to ensure that it was properly designed and built. Mr Pearce submitted that the matters identified in Schedule 2 showed that it was not a functioning system, but the plaintiff did not rely on those matters as contractual terms. He submitted that the plaintiff put its case in this limited way and if it failed at trial to establish that what the defendant had produced was not a functioning betting engine, then the plaintiff would lose this particular part of its case.
Mr Pearce also made detailed reference to the pleading in respect of Work Order No. 6. For example, he referred to the "Requirement" set out in Schedule 2, item 367, that the system would "result correctly". Mr Pearce submitted that it was not the plaintiff's case that there was a contractual term that the system resulted correctly. Rather, the plaintiff said that a functioning system required that it result correctly and that the defendant breached its contractual obligation to produce a functioning system. The requirements were testing requirements not contractual requirements.
I agree with Mr Cawthorn's response to the way in which Mr Pearce attempted to justify the pleading. Mr Cawthorn pointed out that in paragraph 88 of the Further Amended Statement of Claim, which dealt with Work Order No. 6, the plaintiff had not pleaded that it was a term of the contract that the defendant would provide the plaintiff with a functioning Readbet betting engine. Rather, the plaintiff had pleaded that:
"It was an express term of the contract arising pursuant to Work Order No. 6 that the defendant would build and deliver the ReadBet betting engine in accordance with the:
·ReadBet Betting Engine Proposal
·Betting Engine Proposal. Response to IAS Quotation
·3 November Email."
Mr Cawthorn queried the status of the "Requirements" listed in Schedule 2 if they were not contractual. What use, if any, could be made of them in deciding whether or not the system functioned? Why should reference be made to the "Requirements" in deciding this question, unless they were something that the parties had agreed to and were therefore binding on them?
Mr Cawthorn further submitted that only one of the three documents, in accordance with which it was said in paragraph 88 that the betting engine would be built, was mentioned in Schedule 2. This was the ReadBet Betting Engine Proposal. Mr Cawthorn therefore submitted that the reference to the other documents referred to in Schedule 2 could not contain requirements imposed by Work Order No. 6. That work did not have to be "in accordance" with these other documents.
In my opinion, the pleading of paragraphs 88 to 90 in respect of Work Order No. 6 is not justifiable. Despite Mr Pearce's submissions to the contrary, I consider that confusion still exists over the way in which the plaintiff puts its case. As I have previously held, this can only be cleared up by the plaintiff pleading "the specific terms of each contract on which it relies, with appropriate particulars", and "the breach of each term that is alleged to have been breached, with full particulars". If indeed the plaintiff is limiting its claim in contract to a failure by the defendant to provide a functioning betting engine, then it should plead that term, with appropriate particulars. On the other hand, if the plaintiff is saying that the defendant breached its contractual obligations by failing to build and deliver the betting engine in accordance with certain specified documents, then that term should be pleaded, with appropriate particulars, and the various breaches should be identified by reference to the particular contractual requirement.
Similar reasoning applies to paragraphs 73 to 75, 79 to 81, 85 to 87 and 91 to 93 in respect of Work Orders Nos. 1, 3, 5 and 9. Therefore, in my opinion, paragraphs 73 to 75, 79 to 81 and 85 to 93 should be struck out with leave to replead.
However, I have reached a different conclusion in respect of Work Order No. 2 (paragraphs 76 to 78) and Work Order No. 4 (paragraphs 82 to 84). Work Order No. 2 was concerned with the secondment of Mr Snowdon to act as the plaintiff's project manager. The particulars to paragraph 77 relate specifically to each task or responsibility of Mr Snowdon pleaded in paragraph 76. In the end, it seemed to me that the defendant's complaint about paragraph 77 came down to a criticism of the generality of the particulars. I consider that this can be addressed by the defendant delivering a request for further and better particulars.
Work Order No. 4 was concerned with the allegation that the defendant agreed to provide a risk register. The relevant paragraphs contain a fairly straightforward pleading of the plaintiff's claim in respect of this contract. The defendant's complaint about the pleading in respect of Work Order No. 4 seemed to me to be limited to the fact that it was said in paragraph 82 that the risk register was "to manage risks arising under the project".
Mr Cawthorn submitted, and Mr Pearce agreed, that the risk register was entirely separate from "the project", being the provision of a betting engine system. The plaintiff's solicitors had already indicated to the defendant's solicitors in correspondence that the above words would be deleted, but they expressed a reluctance or unwillingness to accept that this amendment required a new version of the Statement of Claim to be delivered at this stage. Apart from possibly prejudicing the plaintiff's position on costs, I cannot understand why a new version of the Further Amended Statement of Claim was not delivered immediately it was accepted that there needed to be minor changes made to paragraph 82 and two other paragraphs referred to subsequently. No reason was advanced at the hearing for this reluctance. In the circumstances, I consider that I should order that the words "to manage risks arising under the project" be struck out of paragraph 82.
Paragraphs 62 to 66 and Schedule 2
These paragraphs of the Further Amended Statement of Claim contain allegations about the system failing user acceptance tests conducted by the plaintiff in August 2001, September 2001 and February 2002.
In paragraph 37 of my earlier judgment I summarised the defendant's complaint about the way in which the plaintiff had pleaded this topic:
"The defendant's objection to each of these paragraphs was said to be that it pleaded a qualitative conclusion, in the most summary form, without pleading the material facts that must necessarily underlie it.[2] In developing this submission, Mr Margo argued that the material facts underlying the allegations of testing failure needed to be clarified at an early stage. For example, what precise performance and scalability criteria did the plaintiff allege that the System failed to meet and under what test conditions? Only by providing this information would the real issues in dispute be raised and clarified. Mr Margo went through much of Schedule 2 attempting to demonstrate the difficulties facing the defendant in grappling with the complaints made by the plaintiff. He argued that the highly general complaints of the plaintiff could only be understood by reference to the plaintiff stating what criteria the System had to perform to, what criteria were used in any testing, how any equipment used in the tests was set up, what the inputs were, what the outputs were, what the result was and how the plaintiff interpreted that result."
[2]Bruce v Odhams Press Limited [1936] 1 KB 697 at 705 per Green LJ
My conclusion was contained in paragraph 41 of my earlier judgment:
"I do not agree with Mr Pearce's submission that the plaintiff has provided all of the required information in Schedule 2. In my opinion, Mr Margo was correct in his submission that the material facts had to include much more information about the tests conducted by or on behalf of the plaintiff. Without definitely ruling on the issue at this stage, it seems to me that the plaintiff must provide the type of information outlined by Mr Margo and set out in paragraph 37 above. Only then can the plaintiff's complaints be understood and assessed. Accordingly, I accept the defendant's argument that each of paragraphs 62, 64 and 66 and Schedule 2 should be struck out, with leave to replead, and that when repleading the plaintiff should plead its case about the alleged testing failures as a series of material facts with appropriate particulars. …"
Mr Cawthorn submitted that all that had been done by the plaintiff was to convert what was previously set out in parts of Schedule 2 into paragraphs 62A, 62C, 62E, 64A and 66A of the Further Amended Statement of Claim and that this had previously been held to be insufficient. He submitted that the alleged failings of the system were so vague as to be meaningless. They lacked the necessary material facts that established the testing environment, or the criteria against which the system was tested and therefore the true nature of the alleged failings.
Mr Pearce did not dispute that the allegations about the tests were still insufficient. However, he submitted that the further information provided in the new pleading was the best the plaintiff could provide until it had obtained discovery from the defendant. Mr Pearce referred to the introductory words concerning each series in Parts 3, 4 and 5 of Schedule 2, where it was now alleged that the testing of the system was configured to the defendant's requirements or specifications. Mr Pearce submitted that wherever possible further details were provided about such matters as whether a single server or multi-server was used. Once discovery had been obtained, further particulars would be provided. (This statement was missing from the introduction to Part 4 of Schedule 2 and Mr Pearce agreed that it should have been included).
In my opinion the plaintiff's explanation of its difficulties should be accepted. This means that the defendant's attack on the sufficiency of information about the testing does not succeed at this stage. In due course, the plaintiff will have to provide satisfactory particulars about the testing or run the risk of again facing a strike out application. However, I can see no reason why the defendant should not now be required to plead to the allegations, if these are the best particulars the plaintiff can provide at this stage.
Paragraphs 100, 101 and 105 and Schedule 3
This is the defendant's third major area of concern. In the Amended Statement of Claim, these paragraphs related to allegations of falsity and lack of reasonable grounds in respect of representations allegedly made by the defendant to the plaintiff.
In paragraph 57 of my earlier judgment I concluded that:
"I have already expressed the view that, in the circumstances of this case, the dispute about whether the necessary material facts appear in the pleading itself or in a schedule to the pleading is a non-issue. The real question is whether the necessary material facts have been alleged. In my opinion, they have not. As Mr Margo submitted, in respect of most of the Representations alleged to be misleading or deceptive, the plaintiff's "particulars of falsity/lack of reasonable grounds" in Schedule 3 alleged that the defendant "knew or should have known" or "was or should have been aware" of certain matters which meant that the Representations were false. Yet, contrary to r.13.10(3) of the Supreme Court Rules, no material facts were pleaded to support the serious allegation that the defendant "knew" or "was aware" of those matters."
The defendant submitted that no attempt had been made to comply with my order that all material facts be pleaded. Paragraphs 100, 101 and 105 themselves had not changed, although some additional particulars (which were already present in Schedule 3) had been provided in paragraph 101. Schedule 3 also remained unaltered. (Sensibly, no point was taken by Mr Pearce that paragraph 105 was not actually listed in either the defendant's summons or its amended summons. It was always clear that the defendant was also seeking to strike out paragraph 105).
I do not accept Mr Pearce's submission that what had been pleaded was sufficient. I agree with Mr Cawthorn's submission that the plaintiff was, in effect, seeking to re-argue an issue when I had previously ruled against it. No reasons were advanced as to why it should be permitted to do this. Accordingly, paragraphs 100, 101 and 105 and Schedule 3 should again be struck out with leave to replead.
Paragraph 9
Paragraph 9 of the Further Amended Statement of Claim pleaded that on or about 15 June 2000 the plaintiff retained SPL WorldGroup (Australia) Pty Ltd ("SPL") to advise it and make recommendations with respect to the implementation of the recommendations in the Panopera Report ("the Advice Retainer"). In particular (b) to paragraph 9, it was said that insofar as the retainer was implied, it was to be implied from "the course of conduct of SPL and subsequently the defendant providing advice and recommendations to the plaintiff … in the period between 15 June 2000 and about September 2001".
In my earlier judgment I dealt with the issues arising out of the apparent change in contracting party from SPL to the defendant. Having obtained discovery of the relevant documents pursuant to my order, the plaintiff was now able to plead that on or about 29 June 2000 SPL and the defendant had entered into an asset sale agreement pursuant to which, amongst other things, SPL agreed to sell to the defendant the assets of SPL's business, including the benefit of all contracts concerning that business, the defendant agreed to assume all of the liabilities of SPL and SPL agreed "to novate in favour of the defendant" all such contracts or if the other party refused or failed to consent to a novation of a contract, then the defendant would perform the contract on SPL's behalf (paragraphs 10A and 10B of the Further Amended Statement of Claim). The plaintiff further pleaded that pursuant to the asset sale agreement, SPL's obligations and liabilities to the plaintiff under the Advice Retainer were assumed by the defendant (paragraph 10E of the Further Amended Statement of Claim).
Mr Cawthorn submitted that as a matter of logic the wording of particular (b) of paragraph 9 could not be right. The conduct of one party (the defendant) could not without more development in the pleading imply a contract with a different party (SPL). He argued that particular (b) was embarrassing because the defendant would have to undertake the otherwise unnecessary task of looking at its conduct during the period to see whether it could be said to be referrable to the retainer of SPL.
It seemed to me that in the end Mr Pearce accepted that particular (b) should not remain in its present form. He really had no answer to Mr Cawthorn's part that the defendant's conduct was not relevant to the pleading. I consider that this part of the particular is not one which can be supported. The words "and subsequently the defendant" should be struck out in order to avoid the defendant incurring costs on an issue in respect of which the plaintiff cannot succeed. Consequential amendments would also have to be made to the time period relied on in respect of SPL's conduct. In any event, it seems to me that the plaintiff's reliance on the Advice Retainer as against the defendant is arguably made out by the facts pleaded in paragraphs 10A, 10B and 10E of the Further Amended Statement of Claim and that the criticised part of particular (b) is unnecessary.
Paragraphs 19, 30, 35, 37, 47, 51, 53 to 55 and 98
The previous complaint about these paragraphs was that they pleaded reliance on representations "in a string of documents" without identifying which specific statements in the documents were relied on. In paragraph 27 of my earlier judgment I upheld the defendant's submission:
"… Reference to any number of documents each possibly containing a number of representations, without more, hardly defines the case that the defendant has to meet. This is particularly the case where the alleged representations refer to a variety of subject matters. In any event, Mr Pearce accepted that the pleading should be amended to specify precisely which representations were being relied on in respect of each Work Order. He denied that this would result in any of the previously relied on representations being abandoned. But even if this be the case, at least it should be clear exactly what the plaintiff is saying."
Apart from paragraph 98, the relevant paragraphs in the Further Amended Statement of Claim have now been amended to read "in reliance on the representations alleged herein and contained in" certain specified documents. Mr Cawthorn submitted that this did not comply with my earlier judgment. He submitted that the precise representation relied upon in respect of each Work Order had to be specifically pleaded, even if this meant repeating the same representations time after time in the pleading.
In my opinion, the plaintiff has adequately pleaded these paragraphs. By a process of cross-referencing, the reader of the Further Amended Statement of Claim can identify, for example, the two representations allegedly made in the Strategy Implementation Blueprint Proposal (paragraph 8), the seven representations allegedly made in the Strategy Implementation Blueprint (paragraph 16) and the one representation allegedly made in the Technical Information Overview (paragraph 18), in respect of which reliance is pleaded in paragraph 19. The plaintiff is no longer at large in respect of representations which might have been made in these three documents. The same reasoning applies to the other paragraphs in this group, except paragraph 98 which has not been amended to include the words "alleged herein and contained in". I consider that it would have been preferable for the plaintiff to have repeated the additional words in paragraph 98. Nevertheless, in my opinion, the representations in respect of each Work Order now having been specified, it is reasonably clear that in paragraph 98 of the Further Amended Statement of Claim, which is part of the pleading of the negligent misstatement cause of action, the plaintiff is referring to all of the previously identified representations allegedly made in one or other of the sources listed in paragraph 98. The defendant's attack on this part of the pleading therefore fails.
Paragraphs 56 to 60
In the Amended Statement of Claim, these paragraphs dealt with an attempted demonstration of the basic functionality of the betting engine computer system in April 2001. In my earlier judgment I accepted the submission by the defendant that it was not clear what contractual obligations were relied on for the conducting of the demonstration and what specific obligations in the Master Services Agreement, the Work Orders or the Change and Variation Requests were relied on by the plaintiff.
In paragraph 35 of my earlier judgment I stated:
"In my opinion, the defendant is entitled to complain about this lack of identification or particularisation of the case it has to meet. The plaintiff should be required to provide particulars to paragraphs 56 and 59 of which Work Orders and which Change and Variation Requests it relies on and which specific obligations in the Master Services Agreement, the Work Orders and the Change and Variation Requests it relies on."
Once again, the defendant submits that the plaintiff has failed to comply with my order. The only relevant amendment to the Further Amended Statement of Claim has been to add particulars under paragraph 56 stating that "the obligations arose under or pursuant to" clause 2.1 of the Master Services Agreement, Work Orders Nos. 3, 5, 6, 7, 8 and 9, section 11 of the ReadBet Betting Engine Project Plan and each of the Change and Variation Requests set out in Schedule 1. Mr Cawthorn submitted that this did not identify the specific obligations relied on.
I consider that the provision of the particulars under paragraph 56 does sufficiently identify which specific obligations in the Master Services Agreement, the Work Orders, the ReadBet Betting Engine Project Plan and the Change and Variation Requests are relied on by the plaintiff.
A second complaint by the defendant was that no particulars were given under paragraph 59. The plaintiff acknowledged that this was an oversight which would be remedied in due course by the inclusion of a reference to and repetition of the particulars given under paragraph 56. However, it was reluctant to accept that this amendment required a new version of the Statement of Claim to be delivered at this stage. The foreshadowed particulars under paragraph 59 should now be provided.
Paragraph 107
This paragraph pleads that the plaintiff has suffered loss or damage by the defendant's misleading or deceptive conduct. No amendment was made to this paragraph in the repleaded Further Amended Statement of Claim, despite the ruling in paragraph 64 of my earlier judgment that:
"… paragraph 107 should be struck out, with leave to replead this paragraph containing all material facts alleged about the causal relationship between contravention and loss."
Mr Pearce submitted that the plaintiff had supplied the causation and reliance element by adding paragraph 106A, which pleaded that each of the representations previously referred to had "induced the plaintiff to enter into the Advice Retainer, the First Master Services Agreement, the Second Master Services Agreement, the contracts arising pursuant to the Work Orders and the Change and Variation Requests". However, he conceded that through an oversight the following words had been omitted from paragraph 106A – "as alleged in paragraphs 9, 10, 10G, 12, 19, 30, 35, 37, 47, 51, 53 and 54 hereof". Again, the plaintiff was reluctant to accept that this omission required a new version of the Statement of Claim to be delivered at this stage. The foreshadowed amendment to paragraph 106A should now be made.
The more important question was whether the addition of paragraph 106A answered the criticism made by the defendant of the failure to replead paragraph 107. In my opinion, it does not. Although the allegation that the Representations "induced" the plaintiff to enter into the various contracts may explain the incurring of the costs of the project as set out in Schedule 3, the defendant is still left to guess how it is said by the plaintiff that each representation caused the plaintiff to suffer loss and damage by incurring staff costs and the loss of profits after the date of that representation. Indeed, Mr Pearce virtually accepted Mr Cawthorn's submission that the plaintiff could not recover loss of profits by reason of reliance on the Representations. This shows, I believe, that the plaintiff needs to reconsider just how it is putting its case that there is a relationship of cause and effect between the defendant's alleged conduct and the plaintiff's claimed damage.
Paragraphs 108 and 110
In my earlier judgment, I decided that the complaint about these paragraphs was not a strike out point and that the defendant's concerns about the vagueness and generalised particulars of the defendant's alleged negligent performance of work "should be able to be met by the provision of further particulars, as now offered by the plaintiff" (paragraph 68). I ordered that the plaintiff give appropriate particulars of paragraph 110 of the Further Amended Statement of Claim.
Mr Cawthorn submitted that the particulars now given under paragraph 110 were "entirely deficient" in that no new particulars had been given. He submitted that the references to Schedule 3 were too vague and general, for example, the references to failures to adhere to time frames and to cost estimates. Whilst Mr Cawthorn accepted that this was not a strike out point, he submitted that I should direct that further particulars be provided.
Mr Pearce submitted that wherever possible the plaintiff had provided further particulars, even if in some respects it was only by cross-referencing to other allegations in the pleading. He pointed out that some aspects of the defendant's alleged negligent performance of work could not be properly particularised until after discovery.
In my opinion, I should not at this stage order that further particulars be provided of paragraph 110. If the defendant wishes, it can deliver a request specifying precisely what further particulars it requires from the plaintiff.
Conclusions
The result of the above is that the Statement of Claim will once again have to be repleaded by the plaintiff to take account of the following conclusions:
(a)the words "and subsequently the defendant" should be struck out of paragraph 9;
(b) the plaintiff should provide the foreshadowed particulars to paragraph 59;
(c)paragraphs 73 to 75, 79 to 81 and 85 to 93 should be struck out with leave to replead;
(d)the words "to manage risk arising under the project" should be struck out of paragraph 82;
(e)paragraphs 100, 101 and 105 and Schedule 3 should be struck out with leave to replead; and
(f) paragraphs 106A and 107 should be struck out with leave to replead.
Once the parties have had an opportunity to consider these reasons, I will hear submissions concerning the form of order that should be made. I reject Mr Cawthorn's submission that the whole of the Further Amended Statement of Claim should be struck out on the ground that the plaintiff has abused the leave to amend granted by my earlier order. However, I will hear any submissions which the defendant wishes to make in respect of the imposing of conditions on the granting of fresh leave to amend.
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