KCL Developments Pty Limited v TQM Design and Construct Pty Limited - [2011] NSWSC 780

Supreme Court

New South Wales

Medium Neutral Citation: KCL Developments Pty Limited v TQM Design & Construct Pty Limited & Ors [2011] NSWSC 780
Hearing dates: 22/07/2011
Decision date: 22 July 2011
Jurisdiction: Equity Division - Technology and Construction List
Before: Einstein J
Decision:
The application is dismissed with costs

Catchwords: Application for strike out of pleadings - UCPR r14.28 - Evidence in strike out proceedings - Refusal to determine merits in application for strike out - Strictness in entertaining strike out applications in Technology and Construction List
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW).
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Agar v Hyde (2000) 201 CLR 552
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Harris v Caladine, In the Marriage of (1991) 172 CLR 84
Kell & Rigby Holdings Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2010] NSWSC 777
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579
Nicholas v The Queen (1998) 72 ALJR 456
Polyukhovich v Commonwealth of Australia (War Crimes Case) (1991) 172 CLR 501
Nolan, Re; Ex parte Young (1991) 172 CLR 460
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
Remmington v Scoles [1897] 2 Ch 1
Webster v Lampard (1993) 177 CLR 598
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
Category: Procedural and other rulings
Parties: KCL Developments Pty Limited (Plaintiff)
TQM Design & Construct Pty Limited (First Defendant)
Mark Taouk (Second Defendant)
Maroun Taouk (Third Defendant)
Lyall Dix (Fourth Defendant)
Representation: Counsel:
Mr F Hicks (Plaintiff)
Ms V Culkoff (First and Third Defendants)
Solicitors:
Newhouse and Arnold Solicitors (Plaintiff)
Orsini Solicitors (First and Third Defendants)

File Number(s): 2010/345384

Judgment

The application

There is before the Court an application pursued by the first and third defendants (TQM) seeking to strike out the amended summons and list statement of the plaintiff (KCL) pursuant to Part 14 rule 28 (a)-(c) of the Uniform Civil Procedure Rules 2005 .

Pursuant to the Technology and Construction List Practice Note (SC Eq 3) "applications for strike out or for summary judgment will not be entertained and, although sometimes appropriate, parties and practitioners should expect strictness in declining to entertain such applications".

To my mind the application presently being pursued falls foul of the above described practice note and requires to be dismissed.

At the commencement of the case, Ms Culkoff for the defendant sought leave to tender a number of exhibits to various affidavits. This application was opposed by Mr Hicks counsel for the plaintiff. His position was that the only entitlement of the defendants was to have the Court examine how the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 780
Decision Date: 22 July 2011

CaseChat Overview and Summary

The case before the court was an application by KCL Developments Pty Limited to strike out the defence of TQM Design and Construct Pty Limited. The dispute arose from a construction contract between the parties, with KCL alleging that TQM failed to complete the construction work to the agreed standard. The case was heard in the Technology and Construction List of the Supreme Court of New South Wales. KCL sought to strike out TQM's defence on the basis that it disclosed no reasonable cause of action, contained irrelevant material, and was otherwise an abuse of process.

The court was required to determine whether the application for a strike out should be allowed and, if so, whether the court should determine the merits of the application. The legal issues involved the interpretation of the relevant rules under the Uniform Civil Procedure Rules 2005 (NSW) and the appropriate standard of proof in such proceedings. The court also had to consider the principles of fairness and the role of the court in managing cases in the Technology and Construction List.

The court found that while the application for a strike out was technically within the scope of UCPR rule 14.28, the strict approach to such applications in the Technology and Construction List meant that the court should not determine the merits unless there were exceptional circumstances. The court held that the evidence provided by KCL was insufficient to warrant a determination on the merits at that stage. The court further noted that the refusal to determine the merits did not equate to an order for costs against KCL. The application for a strike out was ultimately dismissed.

The court's decision emphasised the importance of adhering to the procedural rules in the Technology and Construction List and the need for a cautious approach when considering applications for a strike out. The court did not make any orders for costs against KCL, reflecting the principle that the refusal to determine the merits of the application did not amount to a sanction against the applicant.

Orders