| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KATZ & ANOR -v- SHEAD & ORS [2005] WADC 262 CORAM : REGISTRAR KINGSLEY HEARD : 8 DECEMBER 2005 DELIVERED : Delivered Extemporaneously on 8 DECEMBER 2005 typed from tape and edited by a Registrar
PUBLISHED : 8 DECEMBER 2005 FILE NO/S : CIV 4588 of 1999 BETWEEN : JOHN ARTHUR KATZ First Plaintiff
ARIEL ESTHER KATZ by her next friend PETA ANNE KATZ
Second Plaintiff
AND
MELVYN JEFFREY SHEAD
First Defendant
SHEAD NOMINEES PTY LTD
Second Defendant
TIMOTHY WARREN MORLEY
Third Defendant
MORLEY DAVIS ARCHITECTS PTYLTD (ACN 009 066 817)
Fourth Defendant
(Page 2)
Catchwords: Practice - Application by third and fourth defendant to extend time to file a defence Legislation: Nil Result: Extension of time allowed
Representation:
Counsel:
First Plaintiff : Mr A C McIntosh
Second Plaintiff : Mr A C McIntosh
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Ms D M Templeman
Fourth Defendant : Ms D M Templeman
Solicitors:
First Plaintiff : Cameron Eastwood
Second Plaintiff : Cameron Eastwood
First Defendant : Simon Watson
Second Defendant : Not applicable
Third Defendant : Minter Ellison
Fourth Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 REGISTRAR KINGSLEY: I am considering the third and fourth defendants' application to extend time within which it files a defence. I am troubled and concerned at the way action is starting to develop. I accept that the incident goes back, in terms of construction of a residence, to 1983-84 and that cause of action arose in 1997. There is an amended statement of claim by way of substitution in April 2003 and then consent orders in November 2003, firstly, that the plaintiffs provide answers or objection to the third and fourth defendants' amended request for further and better particulars, and then, the third and fourth defendant file a defence within 14 days of compliance.
2 There is a disputation about whether in fact there has been compliance: the plaintiff's answers were filed in July 2004. There is a chamber summons in April 2005, which, again by consent, provides that the plaintiffs within 14 days file and serve further and better particulars. The particulars are filed on 4 July 2005. On 7 July 2005, the third and fourth defendants write to the plaintiff saying, "give us more time to file our defence and let us know whether you are going to revise the pleadings". 3 On 3 August 2005 the plaintiff says, "We do not intend to amend the statement of claim." Thereafter there are requests in relation to filing the defence by the defendant by seeking extensions of time and those requests are reiterated through September until 16 September when there is then a lengthy issue raised abut the statement of claim. Of course the statement of claim has been filed since 2003. 4 I am troubled with the course of correspondence between the third and four defendants and the plaintiff. I can only deal with what is, as a matter of evidence before me, but it troubles me that the third and fourth defendants request extensions of time, and then on 16 September, launch into a substantial issue with the statement of claim and, to be fair, the particulars. 5 I am troubled at the way in which the third and fourth defendants may be directing this action. It is a substantial matter and has been on foot for some time. But the third and fourth defendants ought to plead. 6 The issue also is whether the third and fourth defendants are to develop some disputation about the particulars in the statement of claim two years after the event and in this fashion. I suspect it is something which the plaintiff might have some word to say. (Page 4)
7 The third and fourth defendants' counsel has argued about the necessity of proper pleadings and answers to particular that are consistent throughout. I accept that is proper. I do not necessarily accept the proposition that this Court does not view pleadings perhaps as robustly as are viewed in other jurisdictions. 8 I think the time has come for the third and fourth defendants to put their plea before the Court and then to examine that plea and the statement of claim and particulars in a quieter, more measured time. 9 That being the case I would extend time to file and serve the defence. |