| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MAZZEO -v- McNAMARA & ANOR [2005] WADC 221 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 1 AUGUST 2005 DELIVERED : 23 NOVEMBER 2005 FILE NO/S : CIV 3047 of 2000 BETWEEN : GAETANO (GUY) MAZZEO Plaintiff
AND
DAVID McNAMARA
REBECCA McNAMARA
Defendants
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to amend pleading - Turns on its facts
Legislation: Architects Act 1921
Result: Application successful but for the reference to the content of experts reports in the particulars to par 28A and par 34C.7 be assigned a different designation
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Representation:
Counsel:
Plaintiff : Mr T H Brickhill
Defendants : Mr R D Shaw
Solicitors:
Plaintiff : Brickhills
Defendants : Phillips Fox
Case(s) referred to in judgment(s):
Pyrenees Shire Council v Day (1998) 192 CLR 330
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The plaintiff is a builder and his claim revolves around the construction of a residence for the defendants. The defendants have sought to re-amend their defence in the terms of a minute dated May 2005. Amongst other things they propose to introduce claims founded upon a representation, which they characterise as being to maximise views, a warranty to the same effect, a related basis for finding a duty of care and a further implied term. They carry the onus of satisfying the court that it is appropriate to grant leave to so amend. The plaintiff has articulated particular concerns in relation to that proposal that I will address seriatim.
2 At par 1(b) of the minute of proposed amended defence, the defendants plead that the plaintiff was a director of Guy Mazzeo Architects Pty Ltd. The plaintiff submits that as the corporation is not a party, that allegation is irrelevant. The defendants contend that it would provide a sufficient basis to engage s 22B of the Architects Act 1921 and that such a case is introduced at par 1(c). On that basis, in my opinion the proposed pleading could not be objectionable. 3 By par 2A the defendants plead their instruction to the plaintiff that the outlook from the upstairs area of the building to the river and city be maximised. The contest raised by the plaintiff relates to a particular that the instruction was provided to the plaintiff at a meeting in August 1999. The plaintiff contends that at that point the effect of the instruction is not provided. It is sufficiently pleaded at par 2A. 4 The plaintiff also refers to scope to consider that the date of that meeting would be distinguished from the date of the meeting the subject of particular (iii), described as having been held on or about 29 August 1999. During the course of submissions the defendants acknowledged that it had been intended that the pleading would convey that there were indeed two meetings. Whilst it was legitimate for the respondent to raise the prospect for confusion, in my opinion the defendants having responded by way of a commitment that accords with the particulars, that is the end of the matter. 5 The plaintiff also contended that he could not plead to par 2A(a)(i), as it is no more than a particular, the plaintiff would not be expected to do so. 6 By par 2A(b) the defendants seek to plead that the plaintiff represented that he would design and build to maximise the outlook. The plaintiff contends that the defendants plead evidence rather than material
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fact. It seems to me that the representation pleaded lay in the plaintiff's response to the defendants' instruction. It is conceivable that as the particular suggests, that response was "I will comply with the instruction" however it is not presented so as to indicate quotation. It is not likely that the context would have called for such formality. At that point I ought to reflect upon where the onus lies in the application. Despite the prospect that upon the hearing of the application the applicants were well aware of the plaintiff's particular concern, in my opinion the court ought not expect that the applicant would produce evidence in order to discount the prospect to which the plaintiff alludes. In my opinion it is sufficient that the words expressed in the particular are not expressed as having been expressed. 7 At par 2A(e) the defendants seek to plead that by reason of the matters pleaded at pars 1(b), (c) and par 2A(a), (b) and (c) the plaintiff owed the defendants a duty of care to warn the defendants of any decrease in the levels of the house such as would affect its outlook. The relevant paragraphs cover all that I have canvassed above; that is that the plaintiff was an architect, was a director of the corporation, was instructed to design and build a residence that would maximise particular views and represented that he would do so. The plaintiff contends that the defendants do not plead material facts to establish a basis for the existence of a duty of care, particularly whether the proximity constituted by the relationship would accommodate the imposition of the duty and whether it was reasonably foreseeable that the failure to warn would cause harm. In my opinion the proposed duty of care arises in a context in which the defendants could properly submit that a duty of care arose. In my opinion whether a sufficient case is pleaded to allow for a finding in the defendants favour is beyond the scope of what ought to be determined on the application. As to the particular concerns of the plaintiff he referred to a passage of the judgment of the High Court in Pyrenees Shire Council v Day (1998) 192 CLR 330 to the effect that the existence of a duty of care would depend upon an assessment of foreseeability of the risk of harm and that such assessment would draw into consideration the relationship between the parties. In addition to what I have already canvassed, at par 35 of the minute the defendants plead the loss arising from the contended breach of duty as a decrease in the value of the building constructed at lower levels than those represented in contractual documents. At par 2A(e) the defendants plead a relationship between such levels and outlook. In my opinion the pleading is sufficient. 8 By par 12(a)(i) the defendants admit an allegation of the plaintiff and specify the extent of that admission. The plaintiff contends that
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particulars ought to be provided. In my view the submission fails to appreciate that fundamentally the pleading is an admission. In any event the issue is beyond the terms of the application as the defendants were provided with leave to amend to the extent of par 12(a)(i) some time ago. 9 By par 27.4.3 the defendants propose an implied term to the effect that the building would be fit for its purpose as a residential dwelling. The plaintiff submits that par 27.4.3 does not add to the implied term at par 27.3. I concede that it may not do so however it is evident that the purpose of par 27.4.3 is to draw into consideration the fact that the design drawings were prepared by the corporation. 10 Paragraph 28A of the minute refers to the failure of the roof and consequential water damage which the defendants attribute to breach by the plaintiff of the term pleaded at par 27.3. The defendants provide particulars of the allegation of breach by reference to construction defects detailed in experts' reports. The plaintiff submitted firstly that the pleading should express the causal link between the breach and failure of the roof and secondly that it is insufficient to simply refer to the content of reports. 11 The defendants have pleaded at par 28(B) that the failure of the roof to prevent ingress of rainwater had allowed it to enter the building causing damage to upstairs bedrooms and music room. In the particulars to par 28A the defendants express that the design of the roof over that area is defective in that valleys that discharge onto the rear balcony roof are too flat to drain effectively and there is not enough drainage relief for that area. It is only after provision of those particulars of the allegation of breach that the defendants referred to the construction defects being more fully expressed in the expert's reports. I have read the reports cited. In my opinion they encompass more than the extent to which particulars are provided in the pleading. The defendants ought to specify their case. The reference to the content of experts' reports is insufficient. 12 At par 34A the defendants plead breach of the warranty to maximise the outlook from the building. In the particulars of breach the defendants refer to the prospect that at a particular upper floor level the building would have complied with "all council requirements", which I take to be a reference to local authority by-laws. My impression of the thrust of the plaintiff's submission is that the defendants ought to have accommodated the plaintiff by introducing into the pleading the impact of any council requirement. There is no reference in the defendants' pleading to any such impact or indeed any constraint on the ability of the plaintiff to design a
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residence that would provide the outlook required by the defendants. In my opinion if the plaintiff seeks to fault the proposition put in the defendants' case he is free to do so by way of reply. It is not appropriate for the pleading party to anticipate such a reply. 13 Paragraph 34B expresses the defendants' loss as a result of the breach of warranty. The particulars of that loss are that the value of the building is less than would have been the case if it had been built to specified levels. The plaintiff contended that those particulars do not relate to the breach of warranty. At par 34A the particulars of breach refer to a level of the upper floor of the building from which a specified outlook would have been achieved. In my opinion there is sufficient in the references in par 34B to par 34A and 35 to establish a connection between the loss claimed and the breach. The particular criticism that the loss is expressed by reference to levels of construction should be evaluated in light of par 2A, which pleads upstairs views and expressly refers to floor levels. 14 By par 34C the defendants seek to plead that they have suffered loss as a consequence of breach of the duty of care to warn of loss of outlook. The plaintiff submits that the material facts supporting the existence of a duty are not sufficiently pleaded. I have already canvassed the sufficiency of the pleading of the existence of duty of care at the point where I considered par 2A(e). 15 Otherwise the plaintiff contends that the material facts cited in support of the allegation of breach are confusing. At par 34C.2 the plaintiff is able to point to the allegation that contract drawings shown to the defendants revealed particular levels yet that the defendants' contend that they were not advised of the impact of level reduction on views. In my opinion there would be scope for the defendants to maintain a claim for breach of duty on those allegations. It is difficult to see that there is any justification for refusing the defendants that opportunity. Although the case may have been differently expressed, in my opinion the role of the court is to do no more than consider whether the proposed pleading meets an acceptable standard. In my opinion it does. At par 34C.3, the defendants plead that the failure to advise deprived them of the opportunity to respond. The plaintiff submits that the scope of any such response is not provided. In my opinion there is sufficient in the prospects pleaded. The defendants could have sought to have the levels changed or withdrawn from their relationship with the plaintiff. At par 34C.4 the defendants contend that the plaintiff's submitted drawings to the statutory authority. The plaintiff submits that it is not clear whether the drawings so submitted were submitted with the knowledge of the
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defendants. Evidently the defendants' knowledge of the scope of the allegations contained in par 34C.4 or their lack of knowledge is not part of their case. If the plaintiff seeks to raise the issue of the knowledge of the defendants either of the submission or what was contained in the drawing so submitted then it is for him to do so. Finally at par 34C.6 the defendants plead the effect of construction was to fail to achieve "the river and city views". The plaintiff submits that it is not clear whether the failure was absolute. The context into which the allegation is introduced is that of failure to warn that a decrease in levels would have an effect on river and city views. The duty to warn of loss of views is expressed at par 2A(e) by reference to any decrease in levels affecting the river and city views. In my opinion there is nothing to suggest the absolute loss contemplated by the plaintiff. The concept of the maximisation of the river and city views is canvassed at par 2A(a) also by reference to "the river and city views". Paragraph 34C.6 utilises the same terminology. In my opinion there is nothing to suggest absolute loss. 16 At par 34C.7 the defendants plead the consequence of breach. In my opinion it is patent that the paragraph should be disassociated from the context in which it is expressed and renumbered. 17 At par 35 the defendants plead loss and go on to particularise that loss by reference to level shown in the contract documents. The plaintiff submits that it is unclear what the reference to "contract documents" embraces. In my opinion, although the term is not defined, the defendants have referred to the term "Building Contract" adopted by the plaintiff at par 2 of the statement of claim and allege at par 2 of the defence that it was comprised of nine documents or categories of documents. The plaintiff points to the sketch pleaded at par 34C.1 and questions whether it would be constituted as a contractual document. On the analysis that I have conducted, that would not be the case. It is a matter of considering whether the plaintiff is entitled to some greater degree of certainty. In my opinion each of the nine documents or categories of documents described at par 2 of the defendants' pleading is sufficiently specific to exclude the sketch. An alternative analysis to the same result is that elsewhere sketches are identified as such. The plaintiff goes beyond that point and postulates the relevance of the sketch pleaded at par 34C.1 for the purposes of breach. In my opinion it simply establishes the datum for the purposes of the balance of the allegations made in that paragraph. In my opinion the plaintiff has no valid concern.
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