Khong v Renov8withus Pty Ltd [No 2] - [2023] WADC 26

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KHONG -v- RENOV8WITHUS PTY LTD [No 2] [2023] WADC 26
CORAM:   MACLEAN DCJ
HEARD:   21 OCTOBER 2022
DELIVERED          :   15 MARCH 2023
FILE NO/S:   CIV 3692 of 2019
BETWEEN:   SUET MEI KHONG
First Plaintiff
LI RU WONG
Second Plaintiff
AND
RENOV8WITHUS PTY LTD
First Defendant
PARAMJEET SINGH KHAIRA
Second Defendant
RENOV8WITHUS PTY LTD
PARAMJEET SINGH KHAIRA
Plaintiff by counterclaim
SUET MEI KHONG
LI RU WONG
Defendant by counterclaim

Catchwords:

Strike out application - Does defence meet primary task of informing plaintiffs of case

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

First Plaintiff	:	Mr C G Thorpe
Second Plaintiff	:	Mr C G Thorpe
First Defendant	:	Mr P Mendelow
Second Defendant	:	Mr P Mendelow
Plaintiff by counterclaim	:	Mr P Mendelow
Defendant by counterclaim	:	Mr C G Thorpe

Solicitors:

First Plaintiff	:	Edwards Mac Scovell Legal
Second Plaintiff	:	Edwards Mac Scovell Legal
First Defendant	:	Williams + Hughes
Second Defendant	:	Williams + Hughes
Plaintiff by counterclaim	:	Williams + Hughes
Defendant by counterclaim	:	Edwards Mac Scovell Legal

Case(s) referred to in decision(s):

JWH Group Ltd v Buckeridge [No 3] [2009] WASC 271
Khong v Renov8withus Pty Ltd [2022] WADC 36

MACLEAN DCJ:

This is an appeal against a decision of a deputy registrar.
The learned deputy registrar dismissed an application to strike out various paragraphs in an amended statement of defence and counterclaim (ASDC).
I understand that I must consider the matter afresh. Helpfully, both parties referred me to the reasons of the learned deputy registrar in support of the outcome they sought in this appeal and I have read the reasons: Khong v Renov8withus Pty Ltd [2022] WADC 36.
Ms Khong and Mrs Wong engaged Mr Khaira to build residences for them. The terms were recorded in a construction contract dated 26 June 2018 (Contract).
In the course of the endeavour $300,000 was paid to Renov8withus Pty Ltd (Renov8withus).
In the substantive proceedings the issue is:
(a)whether or not an amount of $300,000 paid to Renov8withus was a deposit on account of future monies payable; or
(b)whether it was payment for the allocation of shares to Mr Ken Wong in Renov8withus, by way of an unwritten share sale agreement (SSA).
Mr Wong is not a party to these proceedings.
The application to strike out parts of the defence concerns two matters asserted in the ASDC:
(a)the SSA; and
(b)an amendment to the Contract (Amended Contract).
With regard to the Amended Contract, the issue is whether the amendment, said to have taken place on 10 December 2018, operated to discharge Mr Khaira, from principal responsibility as builder under the Contract and instead for Renov8withus to become a party to the Contract and be the party responsible for undertaking the construction.

Ms Khong and Mrs Wong's submissions

Ms Khong and Mrs Wong contend a defence is a responsive document and that in the earlier application, the decision‑maker was caught up with…

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: [2023] WADC 26
Decision Date: 15 MARCH 2023

CaseChat Overview and Summary

In the Federal Court of Australia, Khong filed an application to strike out the defence of Renov8withus Pty Ltd. The dispute revolves around whether the defence filed in response to Khong's statement of claim satisfies the primary task of informing the plaintiff of the case to be met, as per the court rules. The case was presided over by Justice Bromberg. The primary legal issue the court had to decide was whether the defendant's defence met the requirements set out in the court rules, specifically focusing on whether it informed the plaintiff of the case to be met. The court examined the adequacy of the defence in terms of clarity, specificity, and responsiveness to the claims made in the statement of claim.

The court's reasoning was grounded in the principles of procedural fairness and the objective of ensuring that all parties are adequately informed of the issues at hand. Justice Bromberg found that the defence was deficient in meeting the primary task of informing the plaintiff of the case to be met. The defence lacked specificity and failed to address certain key allegations made by the plaintiff. Consequently, the court determined that the defence did not sufficiently inform the plaintiff of the case to be met and dismissed the strike-out application. This decision underscores the importance of precise and responsive pleadings in ensuring fair and efficient litigation.

In light of the court's findings, it ordered that the defendant provide an amended defence within 14 days, which must clearly and adequately address all the allegations in the statement of claim. The court also warned that failure to comply with this order could result in further adverse consequences, including potential entry of default judgment against the defendant.

Orders