Morago Nominees Pty Ltd T/As Gavin Construction v Casver Imports Pty Ltd

[2012] WADC 113

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MORAGO NOMINEES PTY LTD T/AS GAVIN CONSTRUCTION -v- CASVER IMPORTS PTY LTD [2012] WADC 113

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   12 JULY 2012

DELIVERED          :   23 JULY 2012

FILE NO/S:   CIV 1350 of 2011

BETWEEN:   MORAGO NOMINEES PTY LTD T/AS GAVIN CONSTRUCTION

Plaintiff

AND

CASVER IMPORTS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Applications to strike out particulars, provide particulars, provide further and better discovery and for the cost of copying discovered documents

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr G Nairn

Defendant:     Mr B Wheatley

Solicitors:

Plaintiff:     Lavan Legal

Defendant:     Mossensons

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

Nil

1. DEPUTY REGISTRAR HARMAN:  Applications on behalf of each of the parties were presented in the course of the action having been listed for directions.

2. That of the defendant is to strike out particulars; for particulars of the statement of claim and the reply and defence to counterclaim; and discovery.  The plaintiff has sought particulars of defence and counterclaim and to recover costs associated with the exercise of providing copies of documents to the defendant. 

3. I have already given reasons for my decision in relation to the applications to strike out, for particulars of the statement of claim and in relation to the question of the cost of copies.  The result of my consideration of the last point is that the application will be referred back to the Registrar who made the order that:

   1.On or before 27 April 2012, the plaintiff do provide the defendant with copies of the plaintiff's discovered documents at a cost of 11 cents per page to the defendant and any additional amount for the cost of copying in excess of 11 cents per page be the subject of argument at the special appointment;

   …

4. I take it that it had been intended that the court would make a determination on the question of whether the plaintiff could recover an additional amount associated with an exercise that it undertook involuntarily.   Had the order not been made I do not consider that there would have been any basis for the court to determine the cost of a service provided to the defendant by the plaintiff. 

5. The only matter that remains to be determined is the defendant's application for particulars of the reply and defence to counterclaim.  The particular requests being 1, 2.3, 3.1 and 3.2.

6. Request 1 deals with the allegation at par 4 of the reply which is as follows:

   As to paragraphs 8 and 9 of the defence and counterclaim, the plaintiff:

   4.1does not admit that the Head Contract was not provided to the defendant;

   4.2denies that the defendant was unaware of the Head Contract; and

   4.3denies that the defendant did not agree to the terms of the Head Contract.

7. By the request the defendant seeks particulars of:

   1.1When, by what method and by whom the Head Contract was provided to the Defendant, stating to whom on behalf of the Defendant it was provided;

   1.2How the Defendant agreed to the terms of the Head Contract, stating who on behalf of the Defendants agreed and whether such agreement was oral or in writing;

   If oral, stating between whom and where such agreement was made and giving the full terms relied on; and

   If writing, identifying the documents.

8. The pleading at par 4 is made in the context established by the statement of claim at 9.4.2: that the defendant was deemed to have acquainted itself with the head contract.  Having heard the submissions of the plaintiff, in my opinion the reply is within the scope of the pleading at 9.4.2 and was intended to be no more. 

9. Request 2.3 seeks particulars of ‘other loss and damage’ suffered by the plaintiff with reference to par 5 of the reply.  In that pleading the reference to the plaintiff's loss draws upon the loss specified in the statement of claim which at par 18.3.4 specifies that further particulars would be supplied prior to trial.

10. The plaintiff has chosen to respond by particulars numbered 7 and 8 in a document filed 23 December 2011 entitled 'Plaintiff's Particulars of Loss and Damage'.  In the context of dealing with the defendant's application for particulars of the statement of claim, I have already determined that those particulars were sufficient.  In this case the result is the same.

11. Request 3.1 seeks particulars of par 10 of the reply in which the plaintiff asserts that practical completion under the head contract was achieved on 22 December 2009 when the superintendent under the head contract issued a certificate to that effect.  The particular request questions whether the certificate was subject to any conditions and if so what condition and whether the plaintiff performed any work after 22 December 2009 to complete the works.  In that event it seeks detail of that work.

12. The plaintiff's response is in the form of objection as the request does not arise out of the relevant allegation of material fact.  That objection is sustained.

13. Accordingly no particulars are required to be filed in response to the defendant’s request the subject of its application.