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…

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: [2017] WASC 211
Decision Date: 28 JULY 2017

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Macmahon Contractors Pty Ltd sought to strike out the indorsement of claim and amended statement of claim filed by Cw-Dc Pty Ltd. The dispute centred around a contract between the parties, which involved the construction of a project. The legal issues before the court were whether the indorsement of claim and amended statement of claim were filed within the appropriate time frame and whether they disclosed a reasonable cause of action.

The court considered that the indorsement of claim was filed within the statutory time limit, but the amended statement of claim was not. However, the court found that the indorsement of claim was defective as it did not set out the relevant jurisdictional facts. The court also found that the amended statement of claim, although filed out of time, was nevertheless allowed as it was filed promptly after the indorsement of claim was struck out. The court held that the amended statement of claim disclosed a reasonable cause of action and that the matter should proceed to trial.

The court dismissed the application to strike out the indorsement of claim and allowed the application to strike out the amended statement of claim. However, the court permitted the filing of the amended statement of claim and ordered that the matter proceed to trial. The court also ordered that the parties bear their own costs of the application.

Orders