Metwest Steel Pty Ltd v Ionic Projects Pty Ltd as trustee for the Ionic Projects Trust

Case •

[2020] WADC 106

•

31 JULY 2020

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   METWEST STEEL PTY LTD -v- IONIC PROJECTS PTY LTD AS TRUSTEE FOR THE IONIC PROJECTS TRUST [2020] WADC 106

CORAM:   REGISTRAR KINGSLEY

HEARD:   ON THE PAPERS

DELIVERED          :   31 JULY 2020

FILE NO/S:   CIV 1173 of 2020

BETWEEN:   METWEST STEEL PTY LTD

Plaintiff

AND

IONIC PROJECTS PTY LTD AS TRUSTEE FOR THE IONIC PROJECTS TRUST

Defendant


Catchwords:

Practice and procedure - Defendant's application to strike out statement of claim - Turns on own facts - No new principles

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(a), O 20 r 19(1)(c)

Result:

Application substantially successful

Representation:

Counsel:

Plaintiff : No appearance
Defendant : No appearance

Solicitors:

Plaintiff : Aherns Lawyers
Defendant : Office Nexus

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

Insurance Commission of Western Australia v Antony Leslie John Woodings as liquidator of the Bell Group Ltd (in Liq) [No 2] [2017] WASC 372

REGISTRAR KINGSLEY:

  1. By an application dated 17 May 2020 the defendant seeks orders, pursuant to O 20 r 19(1)(a) and O 20 r 19(1)(c) Rules of the Supreme Court 1971 (WA) (RSC), that either the statement of claim (SOC) be struck out in its entirety or pars 7, 9, 10 and 12 ‑ 17 inclusive be struck out.

The statement of claim

  1. On or about 25 May 2018 the plaintiff pleads that it entered into an agreement with the defendant to provide goods and services to the defendant in relation to a building project.  The agreement is particularised (par 3 SOC).

  2. Pursuant to the agreement, the plaintiff issues an invoice to the defendant between the 25th and 30th of each month and the defendant must on the 30th of the next month, pay the entire amount, subject to the defendant's right to retain up to 5% retention monies, or dispute the invoice (par 4 SOC).

  3. Pursuant to cl 14 General Conditions (incorporated into the agreement) if a dispute arises then either party may give written notice requesting a settlement meeting take place within seven days of the notice, and if the dispute remains unresolved the dissatisfied party is free to pursue to its legal rights (par 4(f) SOC).

  4. The plaintiff pleads that it carried out the works and issued invoices to the defendant which remain partially or wholly unpaid (pars 5 and 6 SOC).  At par 7 the plaintiff pleads the defendant has failed, refused or neglected to pay the unpaid invoices.

  5. At par 8 SOC the plaintiff pleads practical completion of the project was reached in or around the second week of October 2019 and at par 9 pleads the defendant has failed, refused or neglected to release the retention monies.  The amount of the retention sums have been particularised.

  6. At par 10 the plaintiff pleads the defendant, by email dated 6 May 2019, requested a settlement meeting take place as the parties were in dispute.

  7. Paragraph 11 SOC pleads the parties met and the dispute was not resolved (par 12 SOC).  There is no plea as to what made up the dispute.

  8. Paragraphs 13 - 16 SOC plead the plaintiff's solicitors sent letters of demand to the defendant's solicitor, and to the defendant direct, and there was no response.

  9. Paragraph 17 SOC pleads as a result of the defendant's conduct and the matters pleaded in pars 3 - 16, the plaintiff has suffered loss and damage which is particularised as the unpaid invoices and unpaid retention monies.

Legal principles - O 20 r 19 RSC

  1. The plaintiff's application pursuant to O 20 r 19 is brought on the basis that the statement of claim either discloses no reasonable cause of action or that the statement of claim may prejudice, embarrass or delay the fair trial of the action.

  2. In considering an application to strike a statement of claim for no reasonable cause of action, the starting point is that the plaintiff is entitled, as of right, to have their case heard, to have the facts found, and then to argue the question of law as it arises before the trial judge upon those facts found.  Only where from the outset it can be seen that, however the facts are found, there is no basis for the legal conclusion contended by the plaintiff that the pleading should be struck out: Insurance Commission of Western Australia v Antony Leslie John Woodings as liquidator of the Bell Group Ltd(in Liq)[No 2] [2017] WASC 372 [31].

  3. In relation to striking a pleading for prejudice, embarrassment or delay, unnecessary material may be struck under this sub‑paragraph.  Whilst a court is slow to dictate to parties how they should frame their case, if a party introduces a plea which is unnecessary then it becomes a pleading beyond their right.  If wholly immaterial material matter is set out in such a way that a party must plead to it and so raise irrelevant issues, then that irrelevant material will be struck out as it will prejudice the fair trial of the action.

Discussion

  1. In an action by the plaintiff for the provision of goods and services to the defendant, the invoices for which remain unpaid, pars 1 - 7 reflect that cause of action.  A further cause is the matter of the retention monies and the pleas in pars 8 and 9 properly plead that cause.

  2. Paragraphs 10 - 12 plead the settlement meeting taking place as required by cl 14 of the General Conditions as the parties were in dispute.  There is no plea about why the parties were in dispute and no remedy arises from these paragraphs.  There is no reference to any cause that may arise from the holding of a settlement meeting and its conclusion.  In my opinion pars 10 - 12 inclusive disclose no cause of action and should be struck on that basis. 

  3. Paragraphs 13 - 16 inclusive establish the context in which the issuance of the writ by the plaintiff came about.

  4. Pursuant to the agreement between the parties the defendant, after receiving an invoice from the plaintiff, must pay that invoice on the 30th of the next month.  There is no plea that any demand need to be made.  There is no plea that the defendants conduct in not replying to correspondence is in breach of the agreement and gives rise to a cause of action.

  5. Paragraph 13 pleads the demand which may have been unnecessary but would not be embarrassing to the defendant.  However pars 14, 15 and 16 are, in my opinion, irrelevant and embarrassing to the defendant and ought be struck.

Conclusion

  1. For these reasons pars 10 - 12 inclusive and 14 - 16 inclusive are struck.  As a result there would need to be consequential amendment to par 17 of the SOC.

  2. As the defendant has been substantially successful in the application, I would give the defendant their costs on the application.  However, I invite submissions on the issue of costs if any different order is sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DH
Court Officer

31 JULY 2020

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