ICS Australia Pty Ltd v Bolivia Nominees Pty Ltd
[2001] WADC 84
•5 APRIL 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ICS AUSTRALIA PTY LTD -v- BOLIVIA NOMINEES PTY LTD [2001] WADC 84
CORAM: REGISTRAR KINGSLEY
HEARD: 22 FEBRUARY 2001
DELIVERED : 5 APRIL 2001
FILE NO/S: CIV 80 of 2000
BETWEEN: ICS AUSTRALIA PTY LTD
Plaintiff
AND
BOLIVIA NOMINEES PTY LTD
Defendant
Catchwords:
Practice - Application to extend time nunc pro tunc to amend defence - Case management principles considered
Legislation:
Nil
Result:
Application allowed
Representation:
Counsel:
Plaintiff: Mr G I K Macnish
Defendant: Mr G J Archer
Solicitors:
Plaintiff: Cocks Macnish
Defendant: Eley Palmer Archer
Case(s) referred to in judgment(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Great City Pty Ltd v Kemayan Management Services (Australia) Pty Ltd and Others (1999) 21 WAR 44
Hawter v Stevens & Ors, unreported; SCt of WA; Library No 970645, 25 November 1997
Skahill & Anor v Kestral Holdings Pty Ltd (in liq) & Ors [2000] WASC 32
State of Queensland and Another v JL Holdings Pty Ltd 141 ALR 353
Case(s) also cited:
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Hughes v Gales (1995) 14 WAR 434
REGISTRAR KINGSLEY: This is the defendant's application that the time for filing a substituted defence and counterclaim be extended nunc pro tunc to 3 January 2001. The plaintiff's statement of claim dated 12 January 2000 pleads that in April 1998 the plaintiff entered into a written agreement with the defendant to refurbish premises in Tuart Hill. The oral terms of the agreement were that the defendant would pay for additional works carried out by the plaintiff beyond the scope of the work contained in the written agreement. The plaintiff in its statement of claim alleges that the defendant, through its agents, requested variations and, in breach, of the contract the defendant has not paid any monies in respect of the variations. At par 11 of the statement of claim the plaintiff claims as upon a quantum meriut the sum of $57,948.72.
History
In a defence filed 4 February 2000 at par 4 the defendant denies the plaintiff is entitled to any relief as the plaintiff was not a registered builder. By a counterclaim the defendant pleads that the sum of $265,250 previously paid ought to be returned on the basis that the plaintiff was precluded by the Builders' Registration Act 1939 from entering into any agreement or engaging to construct any building and therefore the agreement is void ab initio. To this counterclaim the plaintiffs filed a defence to counterclaim on 18 February 2000. The present solicitors came on the record on 29 May 2000.
By 20 July 2000 both parties were in default of their obligations to provide a certificate of discovery. As a result of a case management summons for directions the milestone for the certificate of discovery was extended to 11 August 2000. On 25 July 2000 a list of documents verified by a director of the plaintiff company was filed. No certificate was filed by the defendant by 11 August 2000.
On 28 July 2000 the plaintiff (in the application misdescribed as the defendant) brings an application seeking an extension of time to strike out the defence and counterclaim dated 4 February 2000. At the first return the application was adjourned to a special appointment which came on for hearing on 10 October 2000. At that hearing the defendant, was given by consent, leave to file and serve an amended or substituted defence within 21 days reserving the right of the plaintiff to bring an application to strike out the amended or substituted defence. Further the defendant was ordered to give discovery within 21 days of 10 October 2000. The application was otherwise adjourned to 15 November 2000. Those orders were extracted by the plaintiff on 22 November 2000.
Nothing more occurred until 18 December 2000 when the plaintiff brought an application seeking to enter judgment for damages to be assessed. That application at its first return was adjourned to 11 January 2001. The reason for the adjournment to 11 January 2001 was because on 3 January 2001 the defendant had filed a chamber summons seeking an extension of time for filing the substituted defence and counterclaim and the first return date was 11 January 2001.
Thus on the history of the matter it is apparent that notwithstanding consent orders the defendant failed to file and serve an amended or substituted defence within 21 days of 10 October 2000 and failed to give discovery within 21 days of 10 October 2000.
The matter came before Registrar Wallace on 17 January 2001 where she made an order that unless the defendant within 14 days from service of the order provide a list of documents verified on oath then the defence be struck out and judgment entered in favour of the plaintiff as upon a quantum meruit for damages to be assessed with costs. The defendant complied with the order on 15 February 2001. I am not informed when the order was served but it was extracted on 31 January 2001 and may well be that the discovery was filed on the last available day.
Legal Principles
The plaintiff's counsel submits that the important factors in the exercise of the Court's discretion to grant an extension of time is the length of delay and the interests of justice (Hawter v Stevens & Ors, unreported; SCt of WA; Library No 970645, 25 November 1997 Sanderson M.) In addition, citing Skahill & Anor v Kestral Holdings Pty Ltd (in liq) & Ors [2000] WASC 32 plaintiff's counsel submits it is improper for a party simply to disregard an order of the Court and expect to be indulged. It is in the interests of justice and fundamental that parties to an action comply with the orders of a court.
In Hawter the plaintiff sought an extension of time in relation to a springing order with respect to the provision of further and better answers to particulars. Master Sanderson doubted that the principles of Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 now applied having regard to Orders 1A and 1B RSC. Orders 1A and 1B emphasise the overriding importance of delay in considering interlocutory matters. Thus Master Sanderson was of the opinion only two factors need be considered – the length of delay and the interests of justice. Master Sanderson found that a delay of 11 months in providing particulars was not proper. There were numerous chamber summonses on which numerous orders had been made and that the plaintiffs appeared to have flagrantly disregarded all of the orders made. Master Sanderson was of the view that the plaintiffs had taken no steps whatever to obtain evidence which was clearly central to their case. Master Sanderson then refused leave to extend time. Master Sanderson then considered Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and was of the view that even on the principles enunciated in Esther Investments Pty Ltd the plaintiff's inactivity warranted a refusal to extend time. In the exercise of the Court's discretion to extend time the principles in Esther Investments Pty Ltd are the length of the delay, the reason for the delay, whether there is an arguable case, and the extent of any prejudice suffered by the respondent.
In Skahill's case on 4 November 1999 a case management Registrar made a springing order of which the plaintiffs failed to comply. Judgment had been entered and the plaintiffs sought to appeal against the decision of the Registrar. Properly characterised the plaintiffs were seeking an extension of time to comply. According to Master Sanderson the case evaluation conference held on 4 November 1999 was the 15th case management conference held on the file. Master Sanderson said that from time to time a party may not be able to comply with case management directions or may be in default. Steps should be taken to remedy the non-compliance and re-programme the action. Master Sanderson commented it is not the function of case management Registrars to nursemaid a case from its inception to its resolution, battling the indifference of solicitors. In Skahill's case Master Sanderson was conscious of the profound consequences for the plaintiffs in not extending time. The action against the second and third defendants was brought under the Trade Practices Act and the time limit for bringing proceedings had long expired. Thus the plaintiffs would be affectively prevented from proceeding against the second and third defendants. The plaintiffs took the matter on appeal and the Full Court allowed the appeal on the basis that the springing order should have been expressed to operate from the date of service and not independently of service. The Full Court did comment that the only significant prejudice suffered by the respondent could have been remedied by an appropriate order for costs. One of the grounds of appeal was that the Master had not properly considered the issue of interests of justice. The Full Court was not persuaded that the Master had not fully considered the appropriate balance of prejudice to the respective parties.
Application of Legal Principles
In this matter in July 2000 the plaintiff brought an application seeking an extension of time to strike out the defence and counterclaim. When the matter came on in October 2000 the defendant was given leave to file an amended or substituted defence within 21 days. That order was extracted in November 2000. Nothing further occurred until January 2001 when the defendant brought the within application. Whilst there has been delay the only relevant delay is from October 2000. The plaintiff's chamber summons to strike out the defence and counterclaim was issued in July 2000 with a return date on 9 August 2000. On 9 August the application was adjourned to a special appointment which was listed for 10 October 2000. On 10 October, by consent, the application was adjourned to 15 November with the defendant having leave to file and serve an amended or substituted defence. A further application was brought in December 2000. I am of the opinion that the delay is not of such a length, of itself, to warrant the refusal of the order sought by the defendant.
It is in the interests of justice for a litigant to pursue a matter expeditiously. It can never be proper for a litigant to simply disregard the orders of a Court and for the litigant to expect to be indulged. However as Master Sanderson has commented, there will be occasions when a litigant is unable to comply with an order. Whilst case management is an important aid for ensuring the prompt and efficient disposal of litigation the principles of case management should not supplant the Court's ultimate aim of the attainment of justice (State of Queensland and Another v JL Holdings Pty Ltd 141 ALR 353). Some explanation for the delay has been given by the defendants solicitors. Whilst not entirely satisfactory an explanation, the delay has not been outright neglect or indifference. I am of the opinion that the neglect by the solicitors in complying with the orders of the Court would not preclude an extension of time.
The plaintiff's counsel submits that the plaintiff has been prejudiced by the delay as it has been unable to properly prepare for trial and proceed with its claim expeditiously. Whilst, there has been delay the plaintiff's claim is a money claim and any delay will be adequately compensated by interest on the moneys.
The plaintiff's counsel submits that in any event the defendant's defence and counterclaim is one without merit. The defendant whilst broadly admitting that work was done at the premises alleges that the variations were performed unsatisfactorily. The alleged dissatisfaction has been particularised. The defence at par 7 then goes on to plead that as the plaintiff was not a registered builder the plaintiff is not entitled to any profit under the building contract. Accordingly the defendant pleads that as the defendant has paid a total of $265,250 for all the work done, that amount satisfies any, and all, monies owing by the defendant to the plaintiff.
The law in this State is that s 4 of the Builders' Registration Act does not prohibit the recovery of moneys by an unregistered builder who has entered into a building contract or engagement. The recovery of moneys is based upon a quantum meriut although a builder is prevented from recovering any fee or charge under any such contract or engagement (see Great City Pty Ltd v Kemayan Management Services (Australia) Pty Ltd and Others (1999) 21 WAR 44). If the plaintiff is entitled to recover work done on the principles of restitution, for which a claim for quantum meriut truly is, then a defendant is entitled to defend on the basis that the plaintiff's claim goes beyond unjust enrichment but includes any fee or charge pursuant to the contract or engagement.
Conclusion
Where the law recognises an obligation to pay a reasonable remuneration for a benefit actually received then it is proper to the plaintiff to put the defendant to proof as to the proper basis upon which the quantum of remuneration is to be ascertained.
For these reasons I would give leave to the defendant to extend time nunc pro tunc to 3 January 2001.
In the circumstances it is appropriate that the defendant pay the plaintiff's costs to be taxed forthwith.
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