Montserrat Holdings Pty Ltd v Wheeler
[2017] QCA 235
•28 July 2017
SUPREME COURT OF QUEENSLAND
CITATION:
Montserrat Holdings Pty Ltd v Wheeler & Ors [2017] QCA 235
PARTIES:
MONTSERRAT HOLDINGS PTY LIMITED
ACN 106 561 755v
VICKI MICHELLE WHEELER
(applicant)
REANA DEVELOPMENTS PTY LIMITED
(first respondent)
DOUGLAS PARTNERS PTY LTD
ACN 059 691 244
(second respondent)
CARDNO (QLD) PTY LTD
ACN 053 980 117
(third respondent)
ACN 051 074 992
(fourth respondent)FILE NO/S:
Appeal No 13393 of 2016
DC No 59 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Townsville – Unreported, 29 November 2016 (Baulch SC DCJ)
DELIVERED ON:
Orders delivered ex tempore 28 July 2017
Reasons delivered 13 October 2017DELIVERED AT:
Brisbane
HEARING DATE:
28 July 2017
JUDGES:
Gotterson and McMurdo JJA and Douglas J
ORDERS:
Orders delivered 28 July 2017:
1. Grant leave to appeal against Order 3 made on 29 November 2016.
2. Allow the appeal.
3. Set aside Order 3 and substitute an order that the plaintiff pay the second defendant’s costs of the application on the standard basis.
4. The first respondent to this appeal pay one half of the appellant’s costs of the appeal on the standard basis.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – RELEVANT PRINCIPLES – WHERE WRONG EXERCISE OF DISCRETION – where the first respondent brought a proceeding in the District Court against the applicant and some four other defendants for failing to comply with conditions attached to a council subdivision approval, breach of duty of care and misleading or deceptive conduct – where the applicant filed an application in the District Court seeking to strike out particular paragraphs of the first respondent’s statement of claim or, alternatively, to have requested particulars provided and for the first respondent to prosecute her case expeditiously by serving the claim and statement of claim on three of the defendants – where the learned primary judge refused relief in respect of the particulars and ordered the applicant pay the first respondent’s costs of the application – where, subsequent to the learned primary judge’s orders but prior to the hearing of the application to the Court of Appeal, the first respondent filed and served an amended statement of claim containing substantial amendment to, or deletion of, almost all of the paragraphs in the original statement of claim subject to challenge by the applicant – where there was no intimation to the applicant’s solicitors before the application to the Court of Appeal was filed that the challenged paragraphs would be particularised, amended or deleted – whether the learned primary judge erred in finding it was proper to postpone the provision of particulars until disclosure had been completed – whether the costs order ought to be substituted
Uniform Civil Procedure Rules 1999 (Qld), r 444
COUNSEL:
D E F Chesterman, with R M de Luchi, for the applicant
A J Moon for the first respondent
No appearance for the second, third and fourth respondentsSOLICITORS:
Corrs Chambers Westgarth for the applicant
Connolly Suthers for the first respondent
No appearance for the second, third and fourth respondents
GOTTERSON JA: On 7 March 2016, Ms V M Wheeler began a proceeding by filing a claim in the District Court of Queensland at Townsville against some five defendants.[1] Her claim is for $200,000 damages in respect of additional costs she alleges she must incur in order to be able to construct a residence on land, Lot 16, which she purchased from the second defendant, Montserrat Holdings Pty Ltd (“Montserrat”) in March 2010.
[1]AB183-184.
The factual circumstances in which the claim is made as pleaded in the statement of claim[2] filed with the claim, may be summarised as follows. Lot 16 was created in a subdivision of a Lot 122 on SP 144463 in the County of Elphinstone Parish of Coonambelah in Townsville. The subdivision was undertaken by Montserrat. It had acquired Lot 122 in December 2003 from a party that had initiated the subdivision.
[2]AB186-197.
That party had engaged the third defendant, Reana Developments Pty Ltd (“Reana Developments”), to develop Lot 122 as a residential subdivision. The engagement was continued by Montserrat when it acquired Lot 122. Reana Developments lodged a development application with the first defendant, Townsville City Council, (“the Council”) in December 2003. The application was approved and a development permit was issued in March 2004.
In May 2004, Reana Developments lodged a further development application with the Council seeking its approval of a change to the development permit in order to create six additional lots in the subdivision, including Lot 6. Approval for the further development application was given in June 2004. The approval contained what are described in the pleading as “the Geotechnical Report Conditions”. Certification of compliance with these conditions was given to the Council by the fourth defendant, Douglas Partners Pty Ltd, and/or the fifth defendant, Cardno (Qld) Pty Ltd. Subsequently the Council sealed the plan of subdivision for Lot 122 on 28 November 2005.
In her pleading, Ms Wheeler alleged that, at the time of certification, the Geotechnical Report Conditions had, in fact, not been complied with in certain respects. She also alleged against Montserrat and/or Reana Developments that they failed to carry out certain recommendations that had been made by the fourth and/or fifth defendants for compliance with the Geotechnical Report Conditions. Additionally, she alleged that, in developing Lot 122, Montserrat and/or Reana Developments had failed to comply with “all applicable codes, standards, statutory requirements, regulations and proper civil construction principles”.
The pleaded case against the Council is one of breach of duty of care to prospective purchasers of lots in the subdivided Lot 122 to ensure it was developed in accordance with conditions imposed by the Council. A like case is pleaded against Montserrat together with a case based upon an alleged breach of s 18 of the Australian Consumer Law.[3]
[3]Competition and Consumer Act 2010 (Cth), sch 2.
As a consequence of those breaches, Ms Wheeler alleges that in order to construct a residence on Lot 16, she is now required to effect, at cost to her, the repair of batters constructed on the land above Lot 16, the provision of proper and safe support for a concrete drain which runs across the top of Lot 16 and the removal or the securing of large boulders on adjacent land which present a danger to Lot 16. The total cost of such work, she alleges, is about $200,000.
The proceedings at first instance
The claim and statement of claim were served on the Council and on Montserrat. They were not, however, served on the other defendants. Montserrat’s solicitors made a detailed request for further and better particulars of some 23 paragraphs of the 53 paragraph statement of claim on 12 April 2016.[4] Two days later, it was rejected by Ms Wheeler’s solicitors as oppressive in that the claim was “appropriately particularised in accordance with the pleading requirements of the Uniform Civil Procedure Rules.”[5]
[4]AB56-69.
[5]AB70.
Montserrat filed a defence on 18 April 2016.[6] On the same date, its solicitors requested an explanation for why the other defendants had not been served and an indication of when they would be served.[7]
[6]AB198-209.
[7]AB82.
On 10 May 2016, the solicitors for Montserrat wrote a letter pursuant to r 444 of the Uniform Civil Procedure Rules (“UCPR”) to Ms Wheeler’s solicitors.[8] Relevantly, the letter complained of a failure to particularise certain parts of the statement of claim in accordance with particular rules in the UCPR and to comply with the particulars request. It also complained of an alleged failure by Ms Wheeler to comply with her implied undertaking to conduct the litigation expeditiously by serving the other defendants. Ms Wheeler’s solicitors responded by letter on 16 May 2016 rejecting the complaints as meritless.[9]
[8]AB84-94.
[9]AB95-96.
A response to the particulars request was given on 30 May 2016. It objected to the provision of the particulars requested of 22 of the paragraphs. Certain particulars of the quantum of the damages claimed were given in response to the request concerning the other paragraph.[10]
[10]AB103-109.
On 20 September 2016, Montserrat filed an application in the District Court. The respondents to it were Ms Wheeler and the three defendants who had not been served. As later amended, the substantive relief sought by the application fell into two categories:[11]
(i)that most of the paragraphs of which particulars had been sought but not provided and several other paragraphs, be struck out or, alternatively, that the particulars requested be provided; and
(ii)that, pursuant to r 366 UCPR, the other defendants be served with the claim and statement of claim or alternatively, that, pursuant to r 117 UCPR, provision of copies of those documents by Montserrat’s solicitors to those defendants under cover of letters dated 30 March 2016 be deemed effective service upon them.
[11]AB210-211.
The application was heard on 9 November 2016. On 29 November 2016, the primary judge refused relief in respect of the particulars and ordered Montserrat to pay Ms Wheeler’s costs of the application. Later that morning, his Honour clarified that the relief in respect of service was also refused. The formal orders of the Court included that the application be dismissed (Order 1) and that Montserrat pay Ms Wheeler’s costs of and incidental to it on the standard basis (Order 3).[12]
[12]AB286.
The application for leave to appeal
On 21 December 2016, Montserrat filed an application for leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) to appeal to this Court against the judgment given on 29 November 2016.[13] The application was heard on 28 July 2017. At the conclusion of argument the Court adjourned briefly and then reconvened to make the following orders:
1.Grant leave to appeal against Order 3 made on 29 November 2016.
2.Allow the appeal.
3.Set aside Order 3 and substitute an order that the plaintiff [Ms Wheeler] pay the second defendant’s [Montserrat’s] costs of the application on the standard basis.
4.The first respondent to the appeal [Ms Wheeler] pay one-half of the appellant’s [Montserrat’s] costs of the appeal on the standard basis.
[13]AB287-294.
I propose now to set out in brief form the reasons why these orders were made.
Particulars paragraphs
Evidence adduced at the hearing of the leave application revealed that on 19 June 2017, Ms Wheeler filed and served an amended statement of claim.[14] This document contained substantial amendment to, or deletion of, almost all of the paragraphs in the original statement of claim which had been challenged in the application at first instance, namely, paragraphs 13, 14, 15, 16, 17, 18, 19, 27, 29, 32, 33, 35, 36, 47 and 48.
[14]Affidavit M D Byers, filed 20 July 2017.
With two exceptions, paragraphs 19 and 29, none of the challenged paragraphs were ones of which it had been pleaded that further particulars would be provided after completion of disclosure and non-party disclosure. Contrast, for example, paragraphs 3, 4, 5, 6, 8, 26, 42 and 45 where such a pleading had been made. Further, subject to the same two exceptions, the responses to the requests for particulars of the challenged paragraphs did not state that further particulars would be provided after the completion of disclosure and non-party disclosure.
Thus, there was no intimation to Montserrat’s solicitors before the application was filed that the challenged paragraphs would be particularised, let alone amended or deleted, once disclosure of documents had been undertaken. There was, therefore, no firm basis for the primary judge to reason, as he did, that the case was one where it was proper to postpone the provision of particulars with respect to the challenged paragraphs until disclosure had been completed.[15] In so doing, his Honour erred.
[15]Reasons p 7 ll13-17: AB280.
As this and the subsequent particularisation or amendment of, or deletions to, the challenged paragraphs verify, Montserrat was justified in making the application in regard to those paragraphs. However, the need to make orders now in relation to them has been overtaken by the particularisations, amendments or deletions. Nevertheless, the costs order then made, unless varied, will stand.
That order ought not to have been made. Montserrat gave appropriate r 444 notice of its application in respect of the challenged paragraphs. In the ordinary course, orders giving effect to the relief sought in relation to the challenged paragraphs ought to have been made. The application in relation to them ought not to have been dismissed. That the making of such orders as ought to have been made has become unnecessary now ought not deprive Montserrat of the costs order in its favour which would have followed had such orders been made.
It was for the purpose of setting aside the costs order that was made and substituting the costs order that ought to have been made, that leave to appeal was granted, the appeal was allowed and the appropriate orders as to costs were made.
Service
At the hearing of this application, the Court was informed that on 6 March 2017, the claim had been renewed by Ms Wheeler upon application to a Registrar of the District Court.[16] The evidence placed before the Registrar to secure the renewal has not been placed before this Court.[17]
[16]Application Transcript 1-6 ll18-34.
[17]Ibid ll36-39.
The renewal of the claim and the amendment of the statement of claim have rendered of no practical utility the answer to the question whether the primary judge erred in not granting any of the relief sought in respect of service of the claim and the original statement of claim. The correctness of his Honour’s decision on that topic has, as a live issue, been superseded by these events. In the circumstances, it is not necessary to determine it.
It is also unnecessary to determine that question because whatever the answer to it is, it would be inappropriate for this Court to make any order with respect to service of the renewed claim. It may well be that the evidence that was adduced in support of the renewal is relevant to whether an order for service or of deemed service ought now be made against any of the defendants concerned. As noted, this Court does not have that evidence.
Moreover, although Montserrat has not sought to bring an action for contribution against the third, fourth and fifth defendants pursuant to s 6(c) of the Law Reform Act 1995 (Qld) it may yet do so within the time allowed by s 40(1) of the Limitation of Actions Act 1974 (Qld).
It remains to note that if any of the third, fourth or fifth defendants is served, then that party might apply to set aside service. That, too, is a further circumstance that would militate against the making of deemed service orders.
Costs of the application
Montserrat agitated two issues in support of the grant of leave to appeal. It pressed both of them at the hearing of the application. It has, however, succeeded in respect of one only of them. In the circumstances it is appropriate that Ms Wheeler pay one half of its costs of the appeal, including the application for leave, on the standard basis.
McMURDO JA: I agree with Gotterson JA.
DOUGLAS J: I agree with Gotterson JA.
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