Ivec Pty Ltd v TJP Designs Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Ivec Pty Ltd v TJP Designs Pty Ltd & Anor [2013] QDC 134

PARTIES:

IVEC PTY LTD (ACN 116 636 296)
(Respondent)

v

TJP DESIGNS PTY LTD (ACN 098 178 520)
(First Applicant)

and

JONATHON RICHARD PATTIE
(Second Applicant)

FILE NO/S:

2160 of 2011

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

21 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2012

JUDGE:

Reid DCJ

ORDER:

The Amended Statement of Claim be struck out. The Applicant have leave to re-plead and further order that the applicant deliver such further Amended Statement of Claim by 10 am on 12 August 2013.

CATCHWORDS:

Pleadings – UCPR, r171– statement of claim – reference therein to expert report – whether permissible where report appears to be inadmissible – leave to re-plead

COUNSEL:

A Duffy for the Applicants
L Coman for the Respondent

SOLICITORS:

Thynne & McCartney for the Applicants;
Wellners Lawyers for the Respondent

1. The respondent has brought proceedings against the first applicant for damages for breach of contract and/or negligence, and also pursuant to the provisions of s 87 of the Trade Practices Act, and against the second applicant for damages pursuant to s 87 of the Trade Practices Act.  It also seeks interest and costs.

1. The application before me is for orders that the respondent’s Amended Statement of Claim (“ASOC”) or, alternatively, paras 7, 8, 9, 10, 14, 16, 19, 20, 21, 23, 24, 28, 29, 30 and 31 thereof be struck out pursuant to r 171 of the Uniform Civil Procedure Rules (“UCPR”). In the alternative the applicants’ seek orders pursuant to r 161 of the UCPR that the respondent provide further and better particulars of the allegations in those paragraphs (other than para 7). In the event that orders are made under r 171 the applicants do not oppose the respondent being given an opportunity to re-plead.

1. Rule 171 provides relevantly as follows:

(1)         This rule applies if a pleading or part of a pleading—

(a) discloses no reasonable cause of action or defence; or

(b) has a tendency to prejudice or delay the fair trial of the proceeding; or

(c) is unnecessary or scandalous; or

(d) is frivolous or vexatious; or

(e)is otherwise an abuse of the process of the court.”

1. In considering the effect of r 171 it is also necessary to have regard to r 149 which requires, inter alia, that pleadings must contain a statement of all the material facts on which the party relies, but not the evidence by which the facts are to be proved, and must state specifically any matter that, if not stated specifically, may take another party by surprise. If damages are claimed, r 155 provides that the pleading must also state the nature and amount of the damages claimed and must include the following particulars of the party’s pleading: (a) the nature of the loss or damage suffered; (b) the exact circumstance in which the loss of damage was suffered; and (c) the basis on…