Macmahon Contractors Pty Ltd v Cw-Dc Pty Ltd - [2017] WASC 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MACMAHON CONTRACTORS PTY LTD -v- CW‑DC PTY LTD [2017] WASC 211

CORAM: MARTINO J

HEARD: 28 JULY 2017

DELIVERED : 28 JULY 2017

FILE NO/S: CIV 1216 of 2014

BETWEEN: MACMAHON CONTRACTORS PTY LTD
Plaintiff
AND
CW-DC PTY LTD
Defendant

Catchwords:

Practice and procedure - Application to strike out indorsement of claim and amended statement of claim

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr M J Feutrill
Defendant: Mr G D Cobby

Solicitors:

Plaintiff: HBA Legal
Defendant: Gilchrist Connell

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73
Glendinning v Cuzens [2009] WASCA 21
May v Smith [2000] WASC 313
Morgan v Banning (1999) 20 WAR 474
Ruzeu v Massey‑Ferguson (Aust) Ltd [1983] 1 VR 733
Sands v The State of South Australia [2015] SASFC 36
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] 233
Youlden Enterprises Pty Ltd v Health Solutions Pty Ltd (2006) 33 WAR 1

MARTINO J: This action was commenced by writ of summons filed on 14 February 2014. The defendant entered an appearance on 20 February 2015. The action was added to my CMC list on 16 November 2015.
The plaintiff is a construction contractor. The defendant is an engineering practice. The writ of summons contains an indorsement of claim in the following terms:
The plaintiff's claim is for loss and damage arising from the defendant's breach of contract, negligence and misleading and deceptive conduct in respect of engineering services provided to the plaintiff including:
(i)the provision of designs and documentation in connection with stormwater management and timber decking associated with a community infrastructure project situated in Darwin (the Project);
(ii)the provision of contract documentation for the purposes of the Project; and
(iii)inspections of the works the subject of the Project conducted by the defendants.
AND THE PLAINTIFF CLAIMS:
1.Damages.
2.An order that the defendant indemnify the plaintiff.
3.Damages pursuant to s82 of the Trade Practices Act.
4.Interest.
5.Costs.
6.Such further or other order as the Court in its discretion deems fit.
The plaintiff filed a statement of claim on 26 February 2015.
On 27 July 2016 the plaintiff applied for leave to join the Northern Territory of Australia and Opus International Consultants (Australia) Pty Ltd as defendants to the action. On 21 September 2016 I directed that the plaintiff should give notice of that application to the Northern Territory and to Opus International Consultants.
On 14 December 2016 the plaintiff applied for an order that the action be transferred to the Supreme Court of the Northern Territory.
The plaintiff filed an amended statement of claim on 7 March 2017.
On 8 March 2017 the action was in my CMC case management directions list. At that hearing counsel informed me that the defendant had some objections to the amended statement of claim. I adjourned the action to a further directions hearing to enable the parties to confer as to the defendant's objections to the amended statement of claim and as to whether the plaintiff's application to transfer the action to the Supreme Court of the Northern Territory should be determined before or after any dispute as to the amended statement of claim was resolved.
On 16 May 2017 I made orders by consent pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 (WA) that the action be listed for a two hour hearing to hear the defendant's application to strike out the writ of summons and amendments to the plaintiff's statement of claim and for the filing and service of affidavits and outlines of submissions.
The defendant's application, as contained in its outline of submissions, was that as a consequence of the amendments to the statement of claim made on 7 March 2017:
i)the indorsement of claim be struck out pursuant to O 20 r 19(1);
ii)in the alternative, the amendments to the statement of claim made 7 March 2017 be struck out on the ground that they exceed the scope of the writ;
iii)alternatively, paragraphs 11E, 16A, 16B, 16C, 16D and 21 of the amended statement of claim be struck out as failing to disclose a reasonable cause of action or on the ground that they are embarrassing and likely to delay the fair trial of the action;
iv)further that the plaintiff's claim in contract and tort in relation to the timber decking as pleaded in the original statement of claim should be struck out as not disclosing a reasonable cause of action as the plaintiff has now disclosed that it first suffered loss in relation to the decking in 2010, so the claims have always been statute barred.

The statement of claim dated 26 February 2015

On 26 February 2015 the plaintiff served its statement of claim on the defendant. In that statement of claim the plaintiff pleaded that prior to 6 May 2005 the Government of the Northern Territory and Darwin Cove Convention Centre Pty Ltd entered into an agreement styled 'Community Infrastructure Project Delivery Deed' for the development of a community infrastructure project in Darwin and that on 6 May 2005 the plaintiff entered into a contract with Darwin Cove styled 'Community Infrastructure D&C Contract' for the plaintiff to design and construct community infrastructure for that project. It pleaded that on 19 September 2005 it entered into a contract with the defendant styled 'Professional Services Agreement' under which the defendant agreed to provide engineering and other services to the plaintiff in connection with the plaintiff's contract with Darwin Cove.
It pleaded that the defendant breached the Professional Services Agreement by preparing and supplying inadequate documentation, resulting in defects in stormwater designs and in timber decking designs. The plaintiff claimed that it suffered loss and damage including liability to Darwin Cove and any other party in connection with the Community Infrastructure D&C Contract and the community infrastructure project. It claimed damages for breach of contract, in negligence and under s 82 of the Trade Practices Act 1974 (Cth), an indemnity, interest and costs.

The amended statement of claim

In its amended statement of claim the plaintiff pleads that it entered into two other agreements on 6 May 2005 in addition to the Community Infrastructure D&C Contract. In paragraphs 11A and 11B it pleads a deed styled 'D&C Contract Side Deed' between the Northern Territory, Darwin Cove, the plaintiff and Macmahon Holdings by which Darwin Cove assigned to the Northern Territory all of its interests under the Community Infrastructure D&C Contract on the release date defined in the Community Infrastructure Project Delivery Deed.
In paragraphs 11C, 11D, 11E and 11F the plaintiff pleads a deed styled 'Warranty Deed' between the Northern Territory and the plaintiff under which the plaintiff provided warranties to the Northern Territory as to the performance of the plaintiff's obligations under the Community Infrastructure D&C Contract and agreed that it would make good any defects under that contract and indemnified the Northern Territory against losses as a result of breaches of the warranties and failure to perform its obligations under the Warranty Deed.
In paragraphs 16A, 16B, 16C, 16D and 16E the plaintiff pleads that the Northern Territory made claims against it for defects in the stormwater drainage system and the timber decking that formed part of the works under the Community Infrastructure D&C Contract, that the plaintiff rectified the timber decking defects and that on 11 December 2015 the Northern Territory commenced proceedings in the Supreme Court of the Northern Territory against the plaintiff and Macmahon Holdings claiming that the plaintiff is liable for loss and damage to the Northern Territory as assignee under the Community Infrastructure D&C Contract and that the plaintiff is liable to the Northern Territory under the Warranty Deed, in negligence and for breach of the Competition and Consumer Act 2010 (Cth). It pleads that the defendant is liable to the plaintiff for loss and damage that it has suffered by reason of its rectification of the timber decking defects and for any loss and damage for which it is liable to the Northern Territory by reason of defects in the stormwater drainage system.
In paragraphs 17, 19, 20 and 24 it adds to its claim that by reason of the defendant's breach of the Professional Services Agreement the plaintiff has breached the Community Infrastructure D&C Contract a claim that the plaintiff has also breached the Warranty Deed and it deletes its express reference to Darwin Cove and substitutes a claim that as a result of those breaches the plaintiff is liable to the Northern Territory. The claim that it is also liable to any other party in connection with the Community Infrastructure D&C Contract and the community infrastructure project remains.
In paragraph 21 the plaintiff adds to its pleading that the defendant was aware of, or should have been aware of, the Community Infrastructure D&C Contract a pleading that the defendant was aware of, or should have been aware of, the D&C Contract Side Deed, the Warranty Deed and of the plaintiff's potential liability to the Northern Territory under the Community Infrastructure D&C Contract.

The application to strike out the indorsement of claim

In its outline of submissions the plaintiff submitted that I should not hear the application to strike out the writ of summons because the defendant had not made an application to strike out the indorsement of the writ, there had been no conferral regarding that matter and the application was not made within 21 days of service of the writ, as required by O 20 r 19(3) of the Rules.
On 27 July 2017, the day before this hearing, the defendant filed a summons seeking the following orders:
1.The requirement for conferral pursuant to Order 59 Rule 9 be waived.
2.The time for making an application to strike out the indorsement on the writ of summons be extended to 27 July 2017.
3.The indorsement of claim contained in the writ of summons be struck out pursuant to O 20 r 19(1) Rules of the Supreme Court 1971 (WA) and the writ struck out as a consequence;
4.In the alternative, the amendments to the statement of claim made 7 March 2017 be struck out on the ground that they exceed the scope of the writ;
5.In the further alternative, paragraphs 11E, 16A, 16B, 16C, 16D and 21 of the amended statement of claim ('ASOC') be struck out as failing to disclose a reasonable cause of action or on the ground that they are embarrassing and likely to delay the fair trial of the action pursuant to O 20 r 19(1)(d);
6.The plaintiff's claims in contract and tort in relation to the timber decking as pleaded in the original statement of claim be struck out as not disclosing a reasonable cause of action pursuant to O 20 r 19(1)(a) or (d).
7.The plaintiff pay the defendant's costs of this application, including reserved costs, in any event.
That application is supported by an affidavit of the solicitor for the defendant in which she deposes that by letter dated 19 April 2017 the defendant's solicitors outlined to the plaintiff's solicitors their objections to the amended statement of claim. In May 2017 the parties corresponded by email about the exchange of written submissions. The failure of the defendant to lodge an application was an oversight.
The solicitor for the defendant also deposes that by email dated 4 January 2017 the plaintiff's solicitors produced and disclosed the D&C Contract Side Deed, which caused the defendant to file its amended defence which it served on 22 February 2017.
The defendant accepts that there has been inadequate disclosure. In my view both parties are to blame for that. After I adjourned the hearing on 8 March 2017 to enable the parties to confer they should not have provided to me a consent minute for the orders I made on 16 May 2017 without conferral having taken place. However the plaintiff has been aware of the defendant's application since at least 16 May 2017. In my view the absence of conferral or an application do not warrant further delay in this action.
However, the application to strike out the indorsement of claim appears to have been foreshadowed no earlier than March 2017, two years after the time limited by O 20 r 19(3). The defendant points to the fact that it was not aware of the D&C Contract Side Deed until this year. However in my view that is no reason why an application to strike out the indorsement of claim could not have been made within time if the indorsement of claim is defective. The time limit in O 29 r 19(3) requires an expeditious approach to the bringing of an application to which the rule applies: Youlden Enterprises Pty Ltd v Health Solutions Pty Ltd (2006) 33 WAR 1 [18].
The defendant has referred to May v Smith [2000] WASC 313 [45] where Roberts‑Smith J said that an application to strike out an indorsement of claim can be made under O 20 r 19(1) in addition to an application under O 6 r 1(2). An application under O 6 r 1(2) may be made before appearance. A court may at any time make an order under O 20 r 19(1), however that is subject to O 20 r 19(3). Nothing that was said by Roberts‑Smith J in May v Smith suggests that the time limit in O 20 r 19(3) is to be disregarded.
An extension of time for the making of the application could nevertheless be justified if it could be established that the interests of justice required the extension. Examples of where the interests of justice would require an extension or time are where there would be irreparable prejudice to a defendant or prejudice to the trial process or the efficient utilisation of the resources of the parties or the court: Youlden Enterprises Pty Ltd v Health Solutions Pty Ltd [19].
In Glendinning v Cuzens [2009] WASCA 21 Pullin JA said:
28What will constitute an adequate indorsement on a writ is not something that can be reduced to hard and fast rules. As McLure JA pointed out in ABB Service Pty Ltd v Hetherington [2001] WASCA 235 (ABB Service):
The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole [11].
29But in determining whether an indorsement on a writ is adequate, it is necessary to bear in mind that an indorsement serves three important functions:
1.it informs the defendant of the nature of the claim made and the relief sought so as to enable the defendant to determine whether he or she should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
2.it enables the determination, for the purposes of the relevant Limitation Act, of whether a cause of action is contained in the writ, as the Limitation Act is concerned with the date upon which an action is commenced. A cause of action in this context means a factual situation which will entitle a person to approach a court for relief: Morgan v Banning (1999) 20 WAR 474, 475; and
3.it sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
See ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [7] ‑ [10].
The defendant has submitted that the indorsement of claim is defective because it does not contain sufficient information to enable the date or dates on which the plaintiff's cause of action accrued to be determined nor to enable a determination to be made of the metes and bounds within which the statement of claim is to be framed.
However the indorsement identifies that the plaintiff's claim is for loss and damage arising from the defendant's breach of contract, negligence and misleading and deceptive conduct in respect of engineering services provided to the plaintiff and refers to the provision of design and documentation in connection with stormwater management and timber decking associated with a community infrastructure project in Darwin and the inspection of those works. It is not suggested that the defendant has any misapprehension as to the contract to which the indorsement of claim refers.
The defendant submits that the knowledge of the defendant is irrelevant to the assessment of the adequacy of the indorsement, referring to Ruzeu v Massey‑Ferguson (Aust) Ltd [1983] 1 VR 733. However the knowledge of the defendant is not irrelevant to whether there would be irreparable prejudice to it or prejudice to the trial process or the efficient utilisation of the resources of the parties or the court if the application were not dealt with.
In any event it is my view that the indorsement of claim complies with O 6 r 1 in that it contains a concise statement of the nature of the claim made against the defendant and of the relief claimed. What must be identified in an indorsement of claim is the critical events which give rise to the relief claimed without descending to the factual particularity appropriate to a statement of claim: Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 [10]. In my view the indorsement of claim does that. I refuse the application for an extension of the time limited to apply to strike out the indorsement of claim. I do not strike out the indorsement of claim.

Whether the amended statement of claim exceeds the scope of the writ of summons

The defendant submits that the amendments to the statement of claim raise new causes of action which are outside the scope of the indorsement of claim. It submits that as a consequence the amendments are statute barred.
The submission that the amendments raise new causes of action appears to be based upon two propositions: first that the plaintiff now pleads that the rights of Darwin Cove against the plaintiff have been assigned to the Northern Territory and that the plaintiff is liable to the Northern Territory under the Warranty Deed so that the plaintiff is liable to the Northern Territory and not Darwin Cove and secondly the pleading in paragraphs 16A and 16B of the amended statement of claim that the Northern Territory has rectified defects in the timber decking.
Where a statement of claim makes a claim for a breach of contract which is not identified in the indorsement of claim it is making a claim for a new cause of action and will not be permitted unless the indorsement is amended: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] 233, 239. In this context cause of action does not mean the legal label applied to the facts that give rise to the right to a remedy. It means the factual situation the existence of which gives rise to that right to a remedy: Morgan v Banning (1999) 20 WAR 474, 484; Belgravia Nominees Pty Ltd v Lowe Pty Ltd [10].
It is my view that the amendments to the statement of claim do not make a claim for a new cause of action. The causes of action are the same causes of action in contract, negligence and for misleading and deceptive conduct arising out of the allegedly inadequate work done by the defendant.
The original statement of claim pleaded that the plaintiff was liable to Darwin Cove and any other party in connection with the Community Infrastructure D&C Contract by reason of the defendant's breaches. The amended statement of claim pleads that the plaintiff is liable to the Northern Territory and any other party in connection with the Community Infrastructure D&C Contract by reason of the defendant's breaches. What has changed is that the amended statement of claim changes the identity to whom the plaintiff says it has a liability by reason of the breaches of contract, duty of care and misleading and deceptive conduct of the defendant. The claims remain for liability to other parties and, subject to adequate notice being given to the defendant, that could still include Darwin Cove. The amended statement of claim pleads that in response to a demand from the Northern Territory the plaintiff has rectified defects in the timber decking. The plaintiff's claims as to the defendant's breaches have not changed.

In my view the amendments to the statement of claim do not exceed the scope of the indorsement on the writ.
If I had taken the view that the amended statement of claim does exceed the scope of the indorsement on the writ it would not follow automatically that the amended statement of claim would have been struck out by reason of it making claims outside the applicable limitation periods. There is room for argument as to whether the relevant limitation periods have expired.
The limitation period in both contract and tort in the Northern Territory is three years: s 12(1) Limitation Act 1981 (NT). There is a power to extend limitation periods in s 44 of that Act.
In an action for economic loss and rectification costs resulting from defective building construction of building work or other work carried out under the Building Act 1993 (NT) the limitation period for causes of action in contract, tort and breach of statutory duty is ten years after the date on which the cause of action first accrues, which is the date of the grant of occupancy certification in relation to building work that is subject of the action or, if occupancy certification is not granted, on the date of the first occupation of the building concerned after completion of the building work: s 159 and s 160. Section 159 and s 160 of the Building Act apply to building work carried out in the Darwin (Greater Area) Building Area (Compiled Plan 4955): s 6(2) and Northern Territory Government Gazettes, S29 16 September 2004, G46 17 November 2004 and S15 3 July 2006.
It is arguable that s 160 of the Building Act applies to the claims made by the plaintiff.
Further, the plaintiff submits that the Professional Services Agreement was executed as a deed and the limitation period for an action founded on a deed under s 14(1) of the Limitation Act is twelve years. The defendant disputes that the Professional Services Agreement was executed as a deed.
The defendant also contends that liability for stormwater damage arose on an event in 2009 and that the limitation period expired in 2012. The plaintiff does not accept liability for stormwater damage and submits that any liability for it has not yet crystalized so that the limitation period has not commenced to run.
The plaintiff also submits that its cause of action in negligence is a single indivisible cause of action for damages: Sands v The State of South Australia [2015] SASFC 36 [87].
It is generally undesirable to attempt to determine questions of limitation other than in the context of a substantial trial: Morgan v Banning (479); Belgravia Nominees Pty Ltd v Lowe Pty Ltd [10]. In my view it is not appropriate to resolve the limitation issues raised by the defendant at a strike out application. They should be determined at trial.
In its outline of submissions the plaintiff has submitted that, to the extent necessary, it applies to amend the indorsement on the writ of summons. However it has not identified what those amendments would be.
If I had taken the view that the amended statement of claim did exceed the scope of the indorsement on the writ I would have directed the plaintiff to formulate amendments to the indorsement and considered allowing amendments to it, reserving to the trial any limitation period defences that the defendant may have. However I have decided that the amended statement of claim does not exceed the scope of the indorsement.
Whether paragraphs of the amended statement of claim should be struck out as failing to disclose a reasonable cause of action or on the ground that they are embarrassing and likely to delay the fair trial of the action.
As Allanson J said in David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73 [14] ‑ [15] on an allegation that a plea fails to disclose a reasonable cause of action 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief then the cause of action should be held to be reasonable. Pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.

Paragraph 11B

Although in paragraph 1.3 of its submissions of 7 July 2017 and in paragraph 5 of its chamber summons of 27 July 2017 the defendant refers to paragraph 11E of the amended statement of claim paragraphs 20 to 23 of the defendant's submissions of 7 July 2017 refer to paragraph 11B of the amended statement of claim.
In paragraph 11B the plaintiff pleads that under the D&C Contract Side Deed Darwin Cove assigned to the Northern Territory all of its interests under the Community Infrastructure D&C Contract on the release date defined in the Community Infrastructure Project Delivery Deed. The defendant submits that the pleading is embarrassing and likely to delay the fair trial of the action in that it is impossible to ascertain the date on which the plaintiff alleges that the assignment occurred.
Paragraph 11B is in the following terms:
By clause 3.16 of the D&C Contract Side Deed Darwin Cove assigned to the Territory all of its rights, title and interests in, to, under and derived from the D&C Contract on the Release Date (as defined in Community Infrastructure PDD).
It is a pleading that the assignment took effect on the Release Date as defined in the Community Infrastructure Project Delivery Deed. In my view it does identify the plaintiff's case as to when the assignment occurred. The defendant understands the case that it has to meet. That case is arguable and the pleading is not embarrassing or likely to delay the fair trial of the action.

Paragraph 16A

In paragraph 16A of the amended statement of claim the plaintiff pleads that the Northern Territory made claims against it for defects in the stormwater drainage system and the timber decking that formed part of the works under the Community Infrastructure D&C Contract. In particulars of that plea that have been provided in correspondence the plaintiff has identified a letter from the Darwin Waterfront Corporation to the plaintiff dated 11 August 2011 as the Northern Territory's claim in respect of the stormwater drainage system.
The defendant points to the Darwin Waterfront Corporation Act 2006 (NT) which provides that the Darwin Waterfront Corporation does not represent the Northern Territory and does not enjoy the privileges, rights and immunities of the Crown. It submits that as a consequence a letter from the Darwin Waterfront Corporation cannot constitute a claim by the Northern Territory. I do not accept that submission. The fact that the Darwin Waterfront Corporation Act provides that the Darwin Waterfront Corporation does not represent the Northern Territory does not prevent the Corporation writing a letter making a claim on the Northern Territory's behalf.
That is the plaintiff's case. The defendant knows the case that it has to meet at trial on this point. The pleading is not embarrassing or likely to delay the fair trial of the action.

Paragraph 16B, 16C and 16D

In paragraph 16B the plaintiff pleads that it rectified the defects in the timber decking and suffered loss and damage. In paragraph 16C the plaintiff pleads that on 11 December 2015 the Northern Territory commenced proceedings in the Supreme Court of the Northern Territory against it and Macmahon Holdings claiming that the plaintiff is liable for loss and damage to the Northern Territory as assignee under the Community Infrastructure D&C Contract and that the plaintiff is liable to the Northern Territory under the Warranty Deed, in negligence and for breach of the Competition and Consumer Act. In paragraph 16D the plaintiff pleads that by reason of its breaches of the Professional Services Agreement, negligence and misleading and deceptive conduct the defendant is liable to the plaintiff for the loss and damage it has suffered by reason of rectifying the defects in the timber decking.
The defendant submits that the paragraphs plead causes of action which are statute barred, as having expired before the writ of summons was issued. For reasons which I have expressed when considering whether the amended statement of claim exceeds the scope of the indorsement of claim it is arguable whether or not the defendant's submissions on this point are correct. In my view it is not appropriate to determine them at this interlocutory hearing. They should be determined at trial.
In the defence filed on 18 September 2015 the defendant pleaded that the plaintiff's claims in negligence were statute barred. In its amended defence, filed on 21 February 2017, before the plaintiff filed its amended statement of claim, the defendant added a plea that the plaintiff's claims in contract were also statute barred.
The defendant remains able to contend at trial that the plaintiff's causes of action are statute barred.

Paragraph 16E

In paragraph 16E the plaintiff pleads that if it is liable to the Northern Territory for any loss or damage as a consequence of the stormwater defects then, by reason of the defendant's breach of contract, negligence and misleading and deceptive conduct it is liable to the plaintiff for the loss that the plaintiff has and will suffer by reason of its liability to the Northern Territory.
The defendant submits that this pleading is inconsistent with the plea in the following paragraphs of the amended statement of claim in which the plaintiff pleads that it is liable to the Northern Territory. The defendant submits that this inconsistency is embarrassing and likely to delay the fair trial of the action.
I do not accept that submission. The plaintiff has not yet conceded that it is liable to the Northern Territory as a consequence of the alleged stormwater defects. The extent of any liability of the plaintiff to the Northern Territory is yet to be determined. The plaintiff contends that if it is liable to the Northern Territory then the defendant has a liability to the plaintiff.
The defendant knows the case that it has to meet. I do not consider the pleading to be embarrassing or likely to delay the fair trial of the action.

Paragraph 21

In paragraph 21 of the amended statement of claim the plaintiff adds to its plea in the statement of claim that the defendant was aware of, or should have been aware of, the Community Infrastructure D&C Contract a plea that the defendant was aware of, or should have been aware of, the D&C Contract Side Deed, the Warranty Deed and of the plaintiff's potential liability to the Northern Territory under the Community Infrastructure D&C Contract.
The plaintiff has provided particulars of this pleading which the defendant contends are inadequate to support the plea. The defendant submits that the there is nothing in the particulars which suggest that the defendant ought to have known of the specific terms and conditions of documents when there is no reason to think that the defendant ever saw them and that the particulars do not support the allegation that the defendant was aware of the plaintiff's potential liability to the Northern Territory.
The particulars were provided by letter dated 24 March 2017. They state that before 6 May 2005:
a) the Northern Territory called for tenders for the community infrastructure
b)the Northern Territory selected Darwin Cove as the preferred tenderer for the community infrastructure; and
c)the defendant was involved in the preparation of the technical specifications and the design for engineering services for that community infrastructure.
They state by reason of those matters the defendant knew that Darwin Cove was or would be contracted to design, construct and hand over the community infrastructure and associated assets to the Northern Territory and that the Northern Territory was or would be the owner of the community infrastructure, that a reasonable person in the defendant's position would infer that the entity ultimately responsible for the design and construction of the community infrastructure would be liable to the Northern Territory in negligence, contract, deed or otherwise and that the defendant knew, or ought to have known from the Professional Services Agreement that the plaintiff was responsible for design and construction of the community infrastructure under the Professional Services Agreement.
In my view the pleading in paragraph 21 and the particulars provided of it give the defendant adequate notice of the plaintiff's claim as to why it contends that it was reasonably foreseeable that the plaintiff would suffer economic loss in the form of liability to a third party, namely the Northern Territory. The claim is reasonably arguable and the defendant knows the case that it has to meet at trial. In my view the pleading discloses a reasonable cause of action and is not embarrassing or likely to delay the fair trial of the action.

The plaintiff's claim in relation to the timber decking

The defendant submits that the plaintiff's claim in contract and tort in relation to the timber decking pleaded in the original statement of claim should be struck out as not disclosing a reasonable cause of action as the plaintiff has now disclosed that it first suffered loss in relation to the decking in 2010. For reasons that I have given earlier it is my view that the limitation defences that the defendant has pleaded are arguable. They are not matters that should be determined at a strike out application but should be determined at trial. The pleading discloses a reasonable cause of action.

Conclusion

For these reasons I have decided that I should dismiss the defendant's applications to strike out the indorsement of claim, the statement of claim and the amended statement of claim.