Kousa International LLC v CPB Contractors Pty Ltd Formerly Known as Leighton Contractors Pty Ltd
[2017] WASC 11
•20 JANUARY 2017
KOUSA INTERNATIONAL LLC -v- CPB CONTRACTORS PTY LTD FORMERLY KNOWN AS LEIGHTON CONTRACTORS PTY LTD [2017] WASC 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 11 | |
| Case No: | CIV:2036/2016 | 19 JANUARY 2016 | |
| Coram: | ALLANSON J | 20/01/17 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KOUSA INTERNATIONAL LLC CPB CONTRACTORS PTY LTD FORMERLY KNOWN AS LEIGHTON CONTRACTORS PTY LTD |
Catchwords: | Practice and procedure Pleadings Application for further and better particulars Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 20 r 13(1) |
Case References: | Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CPB CONTRACTORS PTY LTD FORMERLY KNOWN AS LEIGHTON CONTRACTORS PTY LTD
Defendant
Catchwords:
Practice and procedure - Pleadings - Application for further and better particulars - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 13(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr D J Morris
Defendant : Mr J Garas
Solicitors:
Plaintiff : HHG Legal Group
Defendant : Clyde & Co (Perth Office)
Case(s) referred to in judgment(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
- ALLANSON J:
Kousa International
1 CPB Contractors Pty Ltd (then known as Leighton Contractors Pty Ltd) was a contractor on a construction project for a wind farm near Geraldton. CPB and Kousa International LLC contracted for Kousa to manufacture, supply, and deliver 22 wind turbine tower structures. CPB erected the towers on site.
2 In 2016, Kousa brought this action against CPB for money owed under the contract. CPB defends the proceedings and counterclaims. In the counterclaim, CPB pleads that Kousa breached the contract. In particular, it pleads that as a consequence of defects and related rectification work, and the late delivery of replacement parts, CPB was delayed in reaching the practical completion date stipulated in its contract with the principal (the Main Contract). CPB claims an indemnity for damages and loss it suffered and incurred, including liquidated damages it was required to pay under the Main Contract for delay in completion.
The defence and counterclaim
3 In its amended defence and counterclaim, CPB pleads these facts:
(1) The contract required Kousa to deliver tower sections in two deliveries: on 14 April 2012 and 1 June 2012. By cl 28.13 of their contract, the parties acknowledged and agreed that delivery of the towers was critical to CPB being able to achieve the contractual completion date under the Main Contract: par 2.
(2) The second delivery of towers on 27 June 2012 was late and not in accordance with the contract: par 6(c); and Kousa delivered replacement adaptor rings late, on 4 December 2013, and not in accordance with the contract as varied: par 6(d).
(3) Kousa failed to carry out work in accordance with the contract, and the towers contained defects: par 14. Seven categories of defects are set out in par 14(a) to (g).
(4) Kousa failed to remedy the defects and that work was done by others: pars 17 and 18.
(5) Kousa breached the contract in relation to the defects and the failure to rectify them, and that CPB incurred costs and expenses in having the defects and breaches remedied: pars 20 to 22.
4 Paragraph 23 pleads a claim by CPB for liquidated damages against Kousa.
5 Paragraph 25 pleads that, as a consequence of the defects and related rectification work, and late delivery of the replacement adaptor rings, CPB was delayed in reaching the practical completion date under the main contract by a period of 41 days, and is liable to pay liquidated damages to the principal under the main contract. Paragraph 26 pleads the amount of liquidated damages that CPB was obliged to and did pay.
Particulars
6 Order 20 r 13(1) of the Rules of the Supreme Court 1971 (WA) provides, relevantly, that every pleading must contain the necessary particulars of any claim. Kousa requested further and better particulars of the defence and counterclaim. CPB answered part of the request, including by providing particulars of every fact, act, matter or circumstance on which it relies in identifying the date of acceptance of the towers; and identifying the commencement, end, and duration of the period of delay in reaching practical completion.
7 When this application was brought, two requests were outstanding. At the hearing, counsel for Kousa did not press the second request. The remaining request asked CPB to state:
8 As to paragraph 25:
(a) each alleged cause of delay; and
(b) how much delay is alleged to have resulted from each such cause.
9 CPB objected to answer this request on the ground that it was not a request for particulars but sought to elicit evidence, or information already provided in the defence. In submissions, counsel for CPB further argued that particulars are unnecessary in the context of case management directions that will be made as this action proceeds.
10 Kousa has not yet pleaded a reply and defence to counterclaim. The parties have agreed that CPB will provide a Scott Schedule detailing the defects alleged to be present on each of the wind towers and the rectification work carried out. The requirement to plead a defence to counterclaim was deferred until after the preparation of the Scott Schedule. The parties expect CPB to provide the schedule on 31 January 2017, or close to then.
11 Counsel for Kousa submitted that there is a global allegation in the counterclaim and particulars already given that the 41 days delay after 14 December 2012, for which CPB paid damages to the principal, were all attributable to Kousa. He requires the further particulars to know, as a matter of pleading, what causal connection CPB alleges between the 41 days of delay and each of the breaches of contract alleged against Kousa, so that Kousa may properly plead to the allegation of delay.
12 Counsel for CPB submitted that the facts pleaded and particulars already given are sufficient. Whether that is so may depend on the detail about rectification in the Scott Schedule.
13 I believe this application should be dismissed on the other ground advanced by CPB. Counsel referred to the comments of Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82, where his Honour emphasised the need to view the adequacy of pleadings in the context of case management techniques and pre-trial directions. His Honour continued:
The need to provide particulars must also be assessed in the case management environment … in which the parties can be assured that the case will not go to trial before various orders have been made requiring the pre-trial disclosure of all the evidence that will be adduced at trial [16].
14 The procedures to be followed in a particular case must be adapted to the nature of the matters in issue, and how they will be resolved. To support its allegations that Kousa's breaches of contract caused delay affecting the date of completion, CPB must adduce expert evidence of the project sequencing and analysis of delays. Both parties accepted that there will be expert evidence of this kind.
15 Expert reports will be exchanged well in advance of trial. Should there be competing expert evidence, the experts will confer. It would be an unnecessary duplication to require CPB to plead that information by way of particulars. If, following exchange of expert reports, Kousa maintains that it still does not have adequate notice of the case against it, the court can then consider what further needs to be done. But in my opinion it is not something to be dealt with by an order for particulars at this stage of the proceedings.
16 The application will be dismissed.
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