Phillis v J Anderson Constructions Pty Ltd; Stephan v J Anderson Constructions Pty Ltd - [2020] NTSC 70

CITATION:Phillis v J Anderson Constructions Pty Ltd & Ors; Stephan & Anor v J Anderson Constructions Pty Ltd & Ors [2020] NTSC 70
PARTIES:DWAIN PHILLIS

v
J ANDERSON CONSTRUCTIONS PTY LTD
and
TECON AUSTRALIA PTY LTD
and
AUSTRALIAN PROPERTY PROJECTS PTY LTD
and
NORTON REAL ESTATE PTY LTD

ANDANNA STEPHAN

and
MATTHEW GRAHAM COWIE
AND
J ANDERSON CONSTRUCTIONS PTY LTD
and
TECON AUSTRALIA PTY LTD
and
AUSTRALIAN PROPERTY PROJECTS PTY LTD
and
NORTON REAL ESTATE PTY LTD

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:SA2 of 2019 (21935120)
SA3 of 2019 (21935408)

DELIVERED:  9 November 2020
HEARING DATE:  13 October 2020
JUDGMENT OF:  Luppino AsJ
CATCHWORDS:

Practice and Procedure – Pleadings – Amendment of Pleadings – Refusal of leave to amend if the amended pleading is liable to strike out – Refusal of leave to amend if the proposed pleading is embarrassing or does not plead an arguable case – Amendments which plead a statute barred cause of action.
Practice and Procedure – Pleadings – Strike out of Pleadings – Principles applicable to applications for strike out – Application pursuant to rule 23.02(a) in respect of pleadings allegedly failing to disclose a cause of action – Claim under Part 5A of the Building Act 1993 – Whether this Court has jurisdiction to hear that claim – Application pursuant to rule 23.02(c) in respect of pleadings alleged to be embarrassing – When a pleading is embarrassing – Requirements of pleadings – Discretionary nature of an order for strike out – Factors relevant to the exercise of the discretion.
Building Act 1993, ss 4, 54AB, 54AC, 54AD, 54B, 54BA, 54BC, 54FA, 54FC, 54FE.
Northern Territory Civil and Administrative Tribunal Act 2014, s 99A.
Construction Contracts (Security of Payments) Act 2004.
Limitation Act 1981, ss 44, 48A.
Australian Consumer Law 2010 (Cth), s 60.
Building Work Contractors Act 1995 (SA).
Domestic Building Contracts Act 1995 (Vic).
Building (Resolution of Residential Building Work Disputes) Regulations 2012, regs 18, 21, 32, 33, 34, 74, 86, 87.
Supreme Court Rules, rr 9.12, 13.02(1)(a), 23.02, 23.04, 36.01(6), 36.03(a), 46.04, 47.04
Secretary v Northern Territory of Australia [2019] NTSC 73.
The Commonwealth of Australia v Verwayan (1990) 170 CLR 394.
Brooks v Wyatt (1993) 99 NTR 12.
McDonnell Shire Council v Miller [2009] NTSC 46.
Wickham Point Development Pty Ltd v The Commonwealth of Australia [2018] NTSC 7.
Motor Accidents (Compensation) Commission v Insurance Commission of Western Australia & Anor [2019] NTSC 68.
Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4.
Australian Consumer and Competition Commission v Pauls Ltd [1999] FCA 1750.
Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191. Demetrios v Lehmann [2019] VSC 301.
Williams and Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368.
Doe v Bridges (1831) 109 ER 1001.
Josephson v Walker (1914) 18 CLR 691.
Attorney General, Meat And Allied Trades Federation of Australia v Beck & Anor [1980] 2 NSWLR 77.
Gwelo Developments Pty Ltd v Brierty Ltd (2014) 35 NTLR 1.
North Wind Pty Ltd v Proprietors – Strata Plan 3143 [1981] 2 NSWLR 809.
Cirocco Constructions Pty Ltd v Clarke [2015] SADC 98.
Kulda & Kulda v System Homes Pty Ltd [2017] NTCAT 369.
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.
Kiranou v Black [2020] NTSC 60.
LKAJ Two Pty Ltd v Squire Patton Boggs & Anor [2020] NTSC 45.
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109.
Banque Commerciale SA v Akhil Holdings Pty Ltd (1989) 169 CLR 279.
Buric v Transfield PBM Pty Ltd (1992) 112 FLR 189.
Weldon v Neal (1887) 17 QBD 394.
Kingston Earthworks Pty Ltd v Iles (1997) 6 Tas R 443.
Williams, Civil Procedure Victoria, LexisNexus Butterworths.
Australian Civil Procedure, Cairns B., Thomson Reuters, 2016.
REPRESENTATION:
Counsel:
Plaintiff:N Floreani and P Hayes
First Defendant:  J Roper
Second Defendant:  H Baddeley
Solicitors:
Plaintiff:Ward Keller, as Town Agents for Brockhill & Usherwood
First Defendant:  Povey Stirk
Second Defendant:  Maher Raumteen, as Town Agents for Barry Nilsson Lawyers
Judgment category classification:    B
Judgment ID Number:  Lup2004

Number of pages: 47

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Phillis v J Anderson Constructions Pty Ltd & Ors; Stephan & Anor v J Anderson Constructions Pty Ltd & Ors [2020] NTSC 70
No. SA2 of 2019 (21935120) and No. SA3 of 2019 (21935408)

BETWEEN:
DWAIN PHILLIS

Plaintiff
AND:
J ANDERSON CONSTRUCTIONS PTY LTD
First Defendant
and
TECON AUSTRALIA PTY LTD
Second Defendant
and
AUSTRALIAN PROPERTY PROJECTS PTY LTD
Third Defendant
and
NORTON REAL ESTATE PTY LTD

Fourth Defendant
AND BETWEEN:
ANNA STEPHAN
First Plaintiff
and
MATTHEW GRAHAM COWIE
Second Plaintiff
AND
J ANDERSON CONSTRUCTIONS PTY LTD
First Defendant
and
TECON AUSTRALIA PTY LTD
Second Defendant
and
AUSTRALIAN PROPERTY PROJECTS PTY LTD
Third Defendant
and
NORTON REAL ESTATE PTY LTD
FourthDefendant

CORAM: Luppino AsJ
REASONS

(Delivered 9 November 2020)

Three summonses in these proceedings were heard concurrently on 13 October 2020. There are two separate proceedings but the issues in both proceedings are largely identical. Both proceedings are based on the same causes of action and the pleadings in each are largely identical. Common interlocutory issues arise in both proceedings. Therefore, unless something is specifically identified as applicable to only one proceeding, these reasons apply interchangeably to both proceedings.
By summons filed 4 February 2020, the First Defendant sought orders for summary judgment and strike out and, in the alternative, for preliminary determination of a question in the proceedings. That question is a jurisdiction question, namely whether this Court has jurisdiction to hear a claim under Part 5A of the Building Act 1993 (“Act”).
By summons also filed 4 February 2020, the Second Defendant sought an order for summary judgment and, in the alternative, a strike out of the Plaintiffs’ claims.
By summons filed 19 May 2020, the Plaintiffs sought an order to join two additional parties,[1] and secondly, for leave to further amend their Statement of Claim. The leave to amend was not sought merely in consequence of the joinder of the additional parties. If leave is granted that will result in the Plaintiffs having filed three versions of a Statement of Claim.[2]
By the time of the hearing, the Second Defendant’s summonses were effectively resolved and the First Defendant abandoned its summary judgment application as well as the application seeking preliminary determination of the jurisdiction question. Further, neither Defendant opposed the Plaintiffs’ application to join the proposed Third and Fourth Defendant. Appropriate orders were therefore made.
The only contentious applications remaining were the First Defendant's application for strike out and the Plaintiffs’ application for leave to amend.
The jurisdiction question was the basis of part of the First Defendant’s strike out application, and that interrelated with the First Defendant's opposition to the Plaintiffs’ application for leave to amend.
The other part of the First Defendant’s strike out application related to other paragraphs of the proposed amended Statement of Claim which the First Defendant alleged were “embarrassing”. That again interrelated with the First Defendant’s opposition to the Plaintiffs’ application for leave to amend.
The Plaintiffs’ application for leave to amend was initially made in respect of the version of the Statement of Claim annexed to the affidavit of Michael Penman made 19 May 2020. By the time of the hearing a number of further iterations of that proposed amended Statement of Claim had been provided to the Defendants. The latest version, which included pleadings in relation to the two new Defendants, was put in evidence before me by consent as Exhibit P1. All parties agreed that the Plaintiffs’ application for leave to amend was to be based on that version. An appropriate amendment was ordered to be made to the Plaintiffs’ summonses.
Some brief background facts will help to put the proceedings, and the issues on the summonses, into context. The claims relate to a development in Alice Springs to convert a former motel site into residential townhouses. The First Defendant was the builder. The Second Defendant was the certifier. The Third Defendant was the owner of the development site. Another company related to the Third Defendant, who is not a party, was the entity which engaged with the builder. The Fourth Defendant was engaged by the Third Defendant as its real estate agent to sell the townhouses. Each of the Plaintiffs bought one of the residential townhouses off the plan through the Fourth Defendant as selling agent.
After the building works were completed and the Second Defendant certified that the premises were fit for occupation, each Plaintiff settled on their contract and took possession. Numerous defects in each of the townhouses were later identified. Those defects are the subject matter of the various claims made by the Plaintiffs.
There is no contractual relationship between the Plaintiffs and the First Defendant. The Plaintiffs’ claims against the First Defendant are based on the 2011 amendments to the Act which established a consumer protection scheme of statutory warranties (referred to as “consumer guarantees” in the Act), to be provided by a builder to an owner. Those warranties apply notwithstanding the absence of a contractual relationship.[3]
Separately to the action under the Act, the Plaintiffs also claim against the First and Second Defendants in negligence and, additionally against the First Defendant, pursuant to section 60 of the Commonwealth Australian Consumer Law 2010 (Cth) (“ACL”).
There is an overlap between the principles relative to amendments and to strike out.[4] Some of the principles relative to amendment derived from the cases[5] and relevant to the current applications, are:-
·applications for leave to amend should be made in good faith;
·an amendment must not result in prejudice or injustice to other parties which cannot be remedied by an order for costs;
·the amendment must disclose an arguable case;
·as the Court is not concerned with the merits, a pleaded case will be allowed even if it has low prospects of success;
·however, an amendment that is bad in law will not be allowed as it would be futile to allow an amendment that is liable to struck out;
·an amendment cannot be embarrassing or prejudicial to a fair trial;
·a pleading must set out the case to be met with clarity so that the Defendant can properly plead to it;[6]
·the requirements of proper pleading, both at common law and pursuant to Rule 13 of the SCR must be complied with;[7]
It is readily apparent that an overlap exists between bullet points 3, 4 and 5. In their written submissions, the Plaintiffs made a number of general submissions related to these points in respect of the strike out applications. Firstly, that a Court should not strike out a pleading if it raises an arguable point. Secondly, and conversely, that only obviously unsustainable pleadings should be the subject of strike out. Thirdly, that as the current case involves a developing area of law, the Court should refrain from determining a difficult question of law on a summary application, and presumably should instead leave the question for trial, which I agree is an option. Another option is to have the question determined by way of a preliminary determination before trial pursuant to rule 47.04 of the SCR.[8]
The Plaintiffs did not support these submissions with reference to authorities. I assume they are largely based on the discretionary nature of an order for strike out of pleadings.[9] I accept that an order to strike out a pleading is discretionary and should not be ordered where a pleading raises a debatable point of law.[10] Contra Williams and Humbert Ltd v W & H Trade Marks (Jersey) Ltd,[11] which held that a Court should decide a point of law if the Court is satisfied that it can be decided appropriately and thereby avoiding the necessity for, and the expense of, a trial.[12]
I think the Plaintiffs’ submissions on this point are highly pertinent. Before the hearing, I had formed a preliminary view that it was appropriate that the jurisdiction question should be the subject of a preliminary determination. Whether this issue is determined at trial, or by way of preliminary determination, or as part of a strike out application seems to make little difference in the end result. Indeed, that was one reason given by Mr Roper, counsel for the First Defendant, for abandoning the application for a preliminary determination and proceeding instead by way of the strike out application.
As the First Defendant abandoned its application for a preliminary determination of the jurisdiction question, without objection from the Plaintiffs, and as the parties have now fully argued the jurisdiction question on the strike out application, it seems more practical that I now determine that issue to avoid the waste of costs that would result if it was now to be re-ventilated at trial or as part of a preliminary determination. I think that total costs already expended are likely to be a significant proportion of the quantum of each claim.
As there is an overlap between the Plaintiffs’ application for leave to amend and the First Defendant’s strike out application, I will deal with both concurrently. The First Defendant's opposition to the Plaintiffs’ proposed amendments is on the basis firstly, of the futility of allowing amendments to plead a claim under Part 5A of the Act as they would then be liable to strike out. Secondly, that parts of the proposed pleading are embarrassing. Thirdly, that some of the amendments seek to plead a cause of action which is now statute barred.
Rules 23.02 and 36.01 of the SCR are the rules respectively dealing with strike out and amendment of pleadings. For reference purposes, I now set out the parts of those rules relevant to the current applications, namely:
23.02Striking out pleading
Where an endorsement of claim on a writ or originating motion or a pleading or a part of an endorsement of claim or pleading:
(a)does not disclose a cause of action or defence;
(b)is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d)is otherwise an abuse of the process of the Court,
the Court may order that the whole or part of the endorsement or pleading be struck out or amended.
36.01 General
(1)For the purpose of determining the real question in controversy between the parties to a proceeding or of correcting a defect or error in a proceeding or of avoiding multiplicity of proceedings, the Court may at any stage order that a document in the proceeding be amended or that a party have leave to amend a document in the proceeding.
(2)In this Order document includes originating process, an endorsement of claim on originating process and a pleading.
(3)-(5) Omitted.
(6)The Court may, notwithstanding the expiration of a relevant limitation period after the day a proceeding is commenced, make an order under subrule (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
(7)-(9)Omitted.
The first part of the First Defendant’s strike out application relied on the principle which derives from Doe v Bridges.[13] The principle was first applied by the High Court in Josephson v Walker[14] and has since been applied in a number of other cases.[15] The principle is that where legislation creates a right and also specifies a remedy or an enforcement process, the remedy or enforcement process is exclusive and the right may not be enforced in any other manner. Where appropriate this operates an ouster of the jurisdiction of any Court not provided for in the specified enforcement process. Clearly, Part 5A of the Act creates a statutory right of action[16] for a “current owner”[17] against the “residential builder”[18] (the First Defendant), absent which the Plaintiffs would have no contractual claim against the First Defendant due to privity.
The First Defendant otherwise concedes that the Act applies to the building work the subject of the proceedings and that the Plaintiffs have the benefit of the consumer guarantees provided for in the Act,[19] notwithstanding that they are not contracting parties.
Mr Roper argued that the principle is a presumption which applies unless it is rebutted by clear language in the Act demonstrating that the enforcement process is not intended to be exclusive. The Plaintiffs did not submit anything to the contrary.
There is ample support for the view that the principle operates as a presumption. Griffith CJ in Josephson v Walker said that the rule was a very strong presumption, rebuttable if the language of the legislation shows that the legislature did not intend the enforcement process to be exclusive.[20]
Isaacs J also described the principle as a presumption. He said that as a specific method of enforcement was created in that case, it was presumed that the method of enforcement was intended to be exclusive. He added that the enforcement process is presumed to be exclusive unless, on consideration of the legislation, a different legislative intention is determined.[21]
Mr Floreani, counsel for the Plaintiffs, broadly argued that the legislative intention of Part 5A of the Act was not to create an exclusive remedy and jurisdiction. He submitted that, looking at the language of the Act and the Building (Resolution of Residential Building Work Disputes) Regulations (“Regulations”) holistically, and coupled to the beneficial nature of the legislation and the broad interpretation that usually follows, it is evident that Parliament did not intend the process under Part 5A of the Act to be an exclusive remedy.
The specific matters relied on by the Plaintiffs to support their argument were:-
(a)The current proceedings between the Plaintiffs and the First Defendant, are pleaded as being in respect of “consumer guarantees”, and not in respect of a "consumer guarantee dispute". As only a "consumer guarantee dispute" must be heard by the Commissioner by reason of section 54FC of the Act, therefore the Plaintiffs are able to bring these proceedings in this Court.
This was the Plaintiffs’ primary argument. The Plaintiffs pointed out that only the First Defendant has pleaded that the dispute is a “consumer guarantee dispute”. The Plaintiffs say that their claim against the First Defendant, as pleaded, arises out of the First Defendant’s breach of the consumer guarantees in section 54B of the Act. It is for that reason that the Plaintiffs say that their claims are in respect of “consumer guarantees” but not in respect of a “consumer guarantee dispute”, notwithstanding the First Defendant’s pleadings.
The sections of the Act relevant to this argument are in the following terms:
54ABPrescribed residential building work and residential builders
(1)Prescribed residential building work is building work in connection with a residential building that is prescribed by regulation for this Part.
(2)A residential builder is one of the following:
(a)     a contracting residential builder;
(b)    a developer;
(c)     an owner-builder;
(d)    a person specified by regulation to be a residential builder.
(3)Also, in relation to an application to the Commissioner under Division 6 about prescribed residential building work, a residential builder includes the following:
(a)a contracting residential builder who was registered at the time the residential building contract for the work was entered into, or the work was carried out, but is not registered at the time the application is made;
(b)a developer who was registered at the time the work was carried out but is not registered at the time the application is made;
(c)an owner-builder whose owner-builder certificate in relation to the work is no longer in force at the time the application is made.
54AD Current owner
For this Part, a current owner, in relation to land or a residential building, is one of the following persons who currently owns the land or building:
(a)      a contracting owner;
(b)a person who is a successor in title to a contracting owner, developer or owner-builder;
(c)a person specified by regulation to be a current owner.
54B     Consumer guarantees
(1)The following guarantees (consumer guarantees) apply to all prescribed residential building work carried out by a residential builder:
(a)the residential builder will carry out the building work in a proper and workmanlike manner and in accordance with the plans and specifications:
(i)     specified in the building permit for the work; and
(ii)if there is a residential building contract for the work – specified in the contract;
(b)all materials supplied by the residential builder will be good and suitable for the purpose for which they are to be used;
(c)all materials supplied by the residential builder will be new unless:
(i)the residential builder is an owner-builder or developer; or
(ii)if there is a residential building contract for the work – the contract for the work specifies otherwise;
(d)the residential builder will carry out the building work in accordance with this Act, the Regulations and other laws in force in the Territory;
(e)the residential builder will carry out the building work with reasonable care and skill;
(f)the residential builder will complete the work:
(i)if there is a residential building contract for the work – by the date, or within the period, specified in the contract; or
(ii)otherwise – within a reasonable period;
(g)     any other guarantee specified by regulation.
(2)     Omitted.
54FC Application to Commissioner for decision
(1)A current owner of a residential building may, in the approved form and within the prescribed effective period, apply to the Commissioner for a decision about a consumer guarantee dispute.
(2)A consumer guarantee dispute is a dispute between a current owner of a residential building and a residential builder who has carried out prescribed residential building work in relation to the building:
(a)about an alleged contravention of a consumer guarantee by the residential builder; and
(b)in circumstances specified by regulation.
For the purposes of section 54FC(2)(b), regulation 18(1) of the Regulations provides that the specified circumstance is that there is no contractual relationship between the owner and the builder in relation to the work to which the dispute relates.
Whether the claim is or is not a "consumer guarantee dispute" is a matter of law to be determined by the interpretation of the relevant statutory provisions. The determination of whether the dispute falls within that definition is not solely a matter of pleading. That only the First Defendant has pleaded that the dispute is a “consumer guarantee dispute” is not determinative as it still has thereby been made an issue on the pleadings.
The Plaintiffs’ claims are in respect of “consumer guarantees” pursuant to section 54B of the Act. That is conceded by the Plaintiffs in their submissions and is undeniably the case as otherwise the Plaintiffs would have no claim against the First Defendant under the Act. The requirements to establish whether the Plaintiffs’ claims are in respect of a "consumer guarantee dispute" in section 54FC of the Act are:-
(1)there is a dispute,
(2)the dispute is between a “current owner” and a “residential builder”,
(3)where that builder has carried out “prescribed residential building work”,
(4)the dispute is about an alleged contravention of a “consumer guarantee” by the “residential builder”,
(5)there is no contractual relationship between the current owner and the builder.
In my view the definition is satisfied. It is self-evident that there is a dispute. The Plaintiffs fit the definition of a “current owner” in section 54AD of the Act. That is clear. Their claims are based on that and that is not in dispute. Similarly, the First Defendant fits the definition of a “residential builder” in section 54AB(2) of the Act. Again, the Plaintiffs’ claims are predicated on that and that is also undisputed. It is also the Plaintiffs’ case that the First Defendant has carried out “prescribed residential building work” as defined in section 54AB(1) of the Act. That is because the Plaintiffs’ case is made pursuant to section 54B(1) of the Act which only applies in the case of “prescribed residential building work”. That the dispute is about an alleged contravention of a “consumer guarantee” by the “residential builder” is also part of the Plaintiffs’ case and is clearly the case on the pleadings. Lastly, the absence of a contractual relationship between the Plaintiffs and the First Defendant is also clear and is not in dispute.
Therefore I conclude that the dispute is a “consumer guarantee dispute”, irrespective of how the Plaintiffs have pleaded their case.
(b)The legislation is beneficial or remedial and therefore it is to be broadly interpreted. In particular, it should be read so that section 54B applies to all building work to which the Act relates on an optional basis in respect of the forum chosen to enforce the remedies given.
As a matter of statutory interpretation, I accept that remedial or beneficial legislation is to be broadly interpreted but that only has application in the event of ambiguity as to the interpretation of the relevant provisions. Statutory interpretation principles relative to remedial legislation do not operate to re-word legislative provisions. The principle is a rule of statutory construction to be applied in the case of ambiguity. I do not accept that the Plaintiffs’ arguments have demonstrated the requisite ambiguity.
(c)As the Commissioner can only hear matters between the owner and the builder and not other parties, in cases such as the current proceedings where other parties are involved, multiplicity of proceedings will result. As this is generally undesirable, especially because of the risk of inconsistent verdicts, if Parliament had intended this, it would have specifically expressed that intention in the legislation.
I agree that the avoidance of multiplicity of proceedings is desirable and I also agree that the possibility of multiplicity of proceedings can be a factor relevant to determining the legislative intent. This is a good point as although exclusive jurisdiction on the Commissioner would require multiple proceedings in different forums to determine all issues between all current parties, if this Court was endowed with jurisdiction, it could conveniently deal with all causes of action and between all parties concurrently.
(d)The definition of "residential builder" in section 54AB of the Act is expanded by sub-sections (2) and (3) when it relates to an application before the Commissioner. The expanded definition would be otiose if the legislative scheme contemplated exclusive jurisdiction for the Commissioner.
The First Defendant argued that the differential definition was explained, consistent with maintaining exclusive jurisdiction in favour of the Commissioner, by reason of sections 54AC (dealing with fidelity certificates) and 54BA of the Act (prohibiting contracting out of the consumer guarantees).
Although arguable, that does not sit well with section 54FC(2)(a) which defines a “consumer guarantee dispute” as being a dispute about an alleged contravention of a consumer guarantee. The provisions in the Act in relation to fidelity certificates and prohibition of contracting out are not strong points in my view.
Without more, the Plaintiffs’ submissions appear to be a strong point against exclusivity of the Commissioner’s jurisdiction. However, the submission overlooks that the jurisdiction under Part 5A of the Act rests not only with the Commissioner but also with the Northern Territory Civil and Administrative Tribunal (“Tribunal”).
It may be that the expanded definition is required as it is intended to apply to proceedings before the Commissioner but not, for whatever reason, to proceedings before the Tribunal. Although I cannot for the present see why there should be an expanded definition applying only to the Commissioner and not to the Tribunal, what that means is that, leaving the justification for the differential definition aside for the moment, the expanded definition is not determinative as there remains a reason for the differential definition consistent with exclusivity of jurisdiction for the Commissioner.
(e)As the Regulations[22] limit the Commissioner’s jurisdiction to the amount of $100,000, if the Commissioner’s jurisdiction was exclusive, that would mean that in claims where compensation is assessed at in excess of $100,000, an applicant would first have to adopt the process in the Act and then take separate proceedings in respect of the excess. This overlaps with sub-paragraph (c) in relation to the point concerning multiplicity of proceedings.
That would be a good point if that was all that the scheme provided. However, the Regulations specifically provide for what is to occur if a claim is assessed in excess of the Commissioner’s jurisdictional limit. Regulation 32(3) mandatorily requires the Commissioner to refer the dispute to the Tribunal in that case and the Tribunal’s jurisdiction does not have an upper limit.[23] Also, notwithstanding that the jurisdiction of the Tribunal is unlimited, the Tribunal can transfer proceedings to this Court pursuant to section 99A of the Northern Territory Civil and Administrative Tribunal Act 2014, but I do not consider that to necessarily negate the exclusivity of the enforcement process under the Act on that account alone.
(f)The Commissioner is able to reject a claim on discretionary grounds pursuant to regulation 21 of the Regulations. As the legislation is beneficial, Parliament could not have intended that the jurisdiction of the Commissioner would be exclusive if coupled to an ability to reject a claim summarily.
Although that appears to be a good point, it disregards the possible review of a decision by the Commissioner to reject a claim in that way. As the First Defendant pointed out, regulation 74 of the Regulations confers a review jurisdiction on the Tribunal and, by reference to Schedule 2, specifically the Tribunal is empowered to review the decision of the Commissioner to reject an application.
(g)The Commissioner's power to reject an application also recognises that for various reasons, such as complexity, requirements to call evidence etc, an application might not be appropriately dealt with by the Commissioner and that is contra-indicative of exclusivity. However that is equally countered by the First Defendant’s submission as set out in the preceding sub-paragraph.
(h)As section 54BC provides that other rights available under any other law relating to the provision of goods or services in connection with building work are not affected by the Act, and as those preserved rights are not otherwise provided for in the available remedies in the legislative scheme, any action to enforce those preserved rights would need to be taken in the Courts. Again, this is based on the argument concerning multiplicity of proceedings.
Section 54BC of the Act provides:-
54BC    Other consumer rights not affected
This Division does not affect other rights a current owner of land or a residential building has under any other law in force in the Territory that deals with the protection of the rights of consumers in relation to the provision of goods or services in connection with building work.
Again, I repeat what I said in sub-paragraph (c). In this particular instance I think there is less scope for multiple proceedings because the section only applies to the provision of “goods and services” in connection with “building work” (as defined in section 4 of the Act), and not to “prescribed residential building work”. Consumer guarantees are prescribed in the case of the latter only so the possibility of multiplicity of proceedings is reduced.
Subject to that observation, my comments and sub-paragraph (c) equally apply in respect of this point.
(i)Section 54BA(2)(b) voids a provision in a contract which requires a dispute in relation to the contract to be referred to arbitration. The Plaintiffs argued that, given the possibility of referral to arbitration in the circumstances referred to in section 54BA(3), that is indicative that the jurisdiction of the Commissioner is not intended to be exclusive.
Section 54BA provides:-
54BA Contracts not to exclude consumer guarantees or other rights
(1)A contracting residential builder must include the consumer guarantees in each residential building contract the builder enters into.
Maximum penalty: 100 penalty units.
(2)A provision of a residential building contract is of no effect to the extent to which the provision purports to:
(a)     restrict or remove the rights of a person in relation to:
(i)a consumer guarantee; or
(ii)another matter relating to the rights of the contracting owner that is required by regulation to be included in the contract; or
(b)require a dispute in relation to the contract to be referred to arbitration.
(3)Despite subsection (2)(b), this section does not prevent the parties to a residential building contract from entering into an agreement, after a dispute has arisen under the contract, about referring the dispute to arbitration.
(4)However, subsection (3) does not apply in relation to a consumer guarantee dispute.
Although also a relevant factor, I do not consider this to be a strong point because the subsection only applies in respect of an agreement to arbitrate, made after the dispute has arisen. Therefore the owner cannot be forced to arbitrate by reason of a contractual term. Overall, the position then is not far removed from the position where parties negotiate a settlement prior to the issue of any proceedings. Also, Parliament may have intended that arbitration would be permitted in some circumstances as part of the scheme. It is also subject to subsection (4) which specifies that subsection (3) is not applicable to a “consumer guarantee dispute” and only disputes of that kind are within the Commissioner’s jurisdiction.
(j)The grant of power to the Commissioner to hear and decide applications relating to consumer guarantee disputes in section 54FA(1)(f), is not expressed in terms of exclusive jurisdiction.
I do not consider this to be a strong point as Mr Floreani rightly conceded. There is only a controversy concerning jurisdiction because Parliament did not see fit to expressly state whether exclusive jurisdiction was intended to apply in respect of the remedy in Part 5A of the Act. A negative argument such as this is circular and is unhelpful.
(k)The use of the word "may" in section 54FC(1) in respect of an owner’s right to seek a decision from the Commissioner indicates that proceedings before the Commissioner are permissive, not mandatory.
This appears to be a valid point on initial consideration. The Plaintiffs cited a decision in the District Court of South Australia[24] based on the South Australian Building Works Contractors Act 1995 as authority as to the meaning of the word “may” in section 54FC(1) of the Act. That Act also prescribed statutory warranties in respect of domestic building work as part of a consumer protection scheme. That case dealt with the interpretation of the words "may apply" in section 37 of that Act, which section is similar in many ways to section 54FC(1) of the Act.
The claim in that case was an action by the builder seeking payment of the amount assessed in a progress certificate. The owners in that case were contracting parties and they resisted payment due to allegations of defective work. It was argued that the proceedings in the District Court were incompetent as that Act gave exclusive jurisdiction to the Magistrates Court.
Although the District Court agreed that the jurisdiction of the Magistrates Court under that Act was exclusive in respect of the statutory warranties, it was held that the builder’s claim was nonetheless cognisable in the District Court as that Act did not displace other common law claims in the ordinary civil courts. A reading of that case indicates that the District Court accepted there was some ambiguity as to the legislative intent concerning exclusivity of jurisdiction. On the one hand, the extent of the powers conferred on the Magistrates Court coupled with a prohibition against contracting out was thought to indicate exclusivity but, on the other hand, the use of the particular words under discussion suggested a permissive construction.
In the end the District Court found a dual jurisdiction namely, exclusive jurisdiction for the Magistrates Court in respect of the enforcement of the statutory warranties and related remedies, and the common law remedies available in the ordinary civil courts. That conclusion was in part based on the particular wording of section 37(3) of that Act which prohibited applications other than in respect of those involving “…some question of whether building work has been performed in accordance with the contract”. It was held that a claim for payment of a progress certificate was caught by that exemption.
I note that similarly under the Act there are circumstances when claims in other courts and tribunal is may be brought.[25]
Although the Plaintiffs’ submission that the case is authority as to the meaning of the word “may” in section 54FC(1) of the Act is arguable, the decision merely accepted that the use of the words under discussion suggested a permissive construction. The District Court found exclusivity of jurisdiction based on consideration of that Act overall. The use of the word “may” was not determinative and I think the same applies in the current case.
The First Defendant disputed the precedential value of that decision and argued that the use of the word “may” in that provision does not denote an optional forum for the Plaintiffs as it is only worded in permissive terms to recognise that an owner is not obliged to make such a claim. Rather, it is confirmatory of the right of an owner namely, if there is a dispute, the owner has the ability to proceed with an application before the Commissioner.
I think that case is of limited assistance to the Plaintiffs.

Lastly, the Plaintiffs relied on a possible scenario which, it was submitted, was also contra-indicative of exclusive jurisdiction for the Commissioner. This again interrelated with the point concerning the multiplicity of proceedings. That scenario involves the case where a builder commences proceedings against an owner for payment of a contract sum. Where the owner then seeks to raise a set-off or counterclaim based on the consumer guarantees under the Act, notwithstanding that proceedings would have been commenced in a Court, if the Commissioner’s jurisdiction was exclusive the owner would be required to seek a remedy from the Commissioner. The owner would not be able to raise a defence or set off in the existing proceedings. If correct, clearly, that would be duplicitous and would be a good point in favour of the interpretation proffered by the Plaintiffs, in which case my comments in paragraph 27(c) would equally apply to this situation.
However, that scenario could never arise and is not a valid basis to support the Plaintiffs’ argument. A builder can only take action directly against an owner if there was a contractual relationship between them. Although in that case, that owner would still be a “current owner” (as the definition of that term in section 54AD of the Act includes a “contracting owner”[26]), the Commissioner would not have jurisdiction in any case. That is because any dispute between that owner and the builder in that situation would not be a “consumer guarantee dispute” by reason of section 54FC(2)(b) of the Act read in conjunction with regulation 18(1) of the Regulations.[27]
I have already set out above, in part at least, the First Defendant’s position in respect of the Plaintiffs’ arguments. The First Defendant also put forward positive arguments which it asserted demonstrated the intended exclusivity of the Commissioner’s jurisdiction.
Firstly, section 54FE(1), which inter alia sets out the circumstances when an owner or a builder may start proceedings in a court or tribunal. That provision treats proceedings pursuant to the Construction Contracts (Security of Payments) Act 2004 in a similar way. That section provides:-
54FEConcurrent consumer guarantee disputes and other contractual disputes
(1)This Division does not prevent:
(a)a contracting owner or contracting residential builder from starting a proceeding in a court or tribunal in relation to a dispute about a residential building contract that is not a consumer guarantee dispute; or
(b)a contracting residential builder from making an application under the Construction Contracts (Security of Payments) Act 2004 in relation to payments for prescribed residential building work carried out under a residential building contract, including payments for any of the work alleged to be defective.
Mr Roper argued that the section only permits such actions where it does not involve a "consumer guarantee dispute" as that is specifically provided in section 54FE(1)(a). Therefore, that demonstrated that the legislative intent was that a "consumer guarantee dispute" is required to be dealt with differently. I suspect this, in part at least, is why Mr Floreani argued that the Plaintiffs’ claims are not pleaded as a “consumer guarantee dispute”. Mr Roper’s interpretation appears to accord with the Tribunal decision which the Plaintiffs’ supplementary submissions referred me to.[28] The First Defendant’s point is that section 54FE(1)(a) would be superfluous if the Commissioner’s jurisdiction was not exclusive. That is a strong point in favour of exclusivity of the process in the Act.
The First Defendant also relied on the Act and the Regulations overall to argue how exhaustive the legislative scheme is, arguing that indicates that Parliament intended the process to be exclusive. In Josephson v Walker Griffith CJ similarly relied on the extent of the legislative scheme to arrive at the same conclusion. His Honour considered that it was also relevant that the process in that case provided for a specialist tribunal as the final arbiter of disputes.[29] In that case there was no appeal beyond that tribunal.
Mr Roper’s argument in the current case is similar and also relies on the Tribunal having unlimited jurisdiction.[30] He argued that the scheme places the Tribunal in the position of final arbiter, albeit that under the legislative scheme in Part 5A of the Act there is a limited right of appeal from the Tribunal to this Court, limited to appeals on questions of law only.[31] In support Mr Roper relied on regulation 32(3) of the Regulations, which requires the Commissioner to mandatorily refer applications in respect of compensation assessed in excess of $100,000 to the Tribunal and, in conjunction, regulation 86(3), which grants the Tribunal power to make an order in excess of $100,000 and without fixing an upper limit. That is also a good point in favour of exclusivity of the process in Part 5A of the Act.
Further, that the extent of the scheme was reflected in the Regulations which provide for possible mediation, conciliation, the ability to commission technical reports and, lastly, broad powers to deal generally with the dispute.[32] The extent of the provisions in respect of the process under the Act is also a good point in favour of exclusivity.
For the reasons I give in paragraph 27, only the points made by the Plaintiffs in sub-paragraphs (c) and (k) have merit and overall the First Defendant’s points are stronger. The question is not to be determined by a process of balancing the respective merits. The correct approach is to determine the legislative intent from the language of the legislation. If the presumption approach in Josephson v Walker were to be applied, then the enforcement process in the Act would apply unless the language of the legislation demonstrated that Parliament did not intend the enforcement process in the legislation to be exclusive and to oust the jurisdiction of the courts.
Whatever approach is taken, I have come to the conclusion that the enforcement process in the legislation is intended to be exclusive. Most of the points made by the Plaintiffs have been effectively countered. The strongest remaining point of the Plaintiffs concerns the avoidance of an interpretation which can result in multiplicity of proceedings. Other related procedural points[33] are less significant. None of the remaining points of the Plaintiffs relate to the language of the legislation and are simply a direct consequence of exclusive jurisdiction. If, as I have concluded, Parliament intended exclusivity then Parliament would likely have had regard to, and accepted, the possibility of multiplicity of proceedings when devising the legislative scheme. I think that is demonstrated by the extent of the duality of jurisdiction in the scheme as Parliament has decided to deny the Commissioner jurisdiction in cases where there is a contractual relationship between an owner and a builder.[34] Parliament has still provided that a contracting owner still has the benefit of the consumer guarantees,[35] but a dispute in that instance is not a “consumer guarantee dispute”.[36] In that event, proceedings in a Court are required to enforce the consumer guarantees.
In the end I am of the view that provisions such as section 54FE(1) of the Act (discussed in paragraphs 31 and 32 above), the extent of the scheme and that the Tribunal can be regarded as the final arbiter of disputes, are all strong indicators that Parliament intended the enforcement process in the legislation to be exclusive and to oust the jurisdiction of the Courts.
I now deal with other general matters raised in the Plaintiffs’ written submissions. Although they were not the subject of oral argument at the hearing, nor were they abandoned.
First, the Plaintiffs submitted that the First Defendant's strike out application should be dismissed as the First Defendant’s summons did not identify the specific sub-paragraph of rule 23.02 pursuant to which the application was brought. The SCR require a summons to specify the rule or legislative provision pursuant to which an application is made.[37] The submission that non-compliance with that rule should result in dismissal of the application was unrealistic. To the extent that it was not apparent from the First Defendant’s summons, I am in no doubt that the Plaintiffs were aware of the basis of the strike out application when the First Defendant’s submissions were served as the First Defendant’s submissions make the basis clear. That was on or about 17 July 2020, and that was well before the hearing. Rule 46.04 of the SCR does not set consequences for non-compliance. I cannot contemplate anything as drastic as dismissal of an application for such a minor, although too regularly occurring, infraction. The more likely consequence would be that the defaulting party would be required to amend the summons to comply with the rule.
In any case, I am not convinced that the First Defendant’s summons is non-compliant. Although the First Defendant has not identified specifically the two sub-paragraphs of that rule that the First Defendant relies on, it does identify that the application is made pursuant to rule 23.02 of the Supreme Court Rules. I think that is sufficient compliance, especially where two of the four grounds are relied on.
The Plaintiffs also submitted that the First Defendant should be precluded from challenging that this Court has jurisdiction to hear the Plaintiffs’ claims under the Act. The evidence reveals that the Plaintiffs had initially made an application before the Commissioner. In correspondence[38] the First Defendant complained that the nature of the dispute, involving experts and complex issues, rendered it unsuitable for determination by the Commissioner or the Tribunal and threatened an anti-suit injunction. The Plaintiffs did not proceed with the application before the Commissioner, apparently because of the matters raised in that correspondence. The Plaintiffs argued that the First Defendant should therefore be precluded from now challenging jurisdiction. I presume this is based on estoppel principles but the Plaintiffs’ submissions did not specify that precisely nor were any authorities provided in support of the proposition.
The decision not to proceed before the Commissioner was a decision of the Plaintiffs alone. The First Defendant’s correspondence did not represent that a jurisdiction point would not be taken subsequently. Indeed, it is not apparent from the correspondence that the First Defendant’s legal representatives were alert to the possibility of a jurisdictional challenge on the basis as argued before me at that time. I am not convinced that the Plaintiffs can establish detrimental reliance on anything done by the First Defendant.
There is also a practical reason not to preclude the First Defendant’s challenge in this way. The Plaintiffs’ submission overlooks that a want of jurisdiction renders proceedings a nullity. Precluding the challenge to jurisdiction would leave what is a bona fide jurisdiction question unresolved. Allowing a matter to proceed when there is a possibility that the proceedings might be a nullity is pointless. Courts will always be wary of precluding bona fide challenges to jurisdiction for that reason.
I reject the Plaintiffs’ submission.
The Plaintiffs’ written submissions also contained some irrelevant discussion, for example, paragraphs 6.3, 69-75 dealing with whether the First Defendant should have entered into a residential building contract with the Third Defendant, and paragraphs 80-81 dealing with whether the First Defendant had breached the contracting out prohibition in the Act. As far as I can see, these were unrelated to any issue between the parties on the current application. Nor is that a matter that could be put in evidence on a strike out application.[39]
On 20 October 2020, seven days after the hearing, I received supplementary submissions from the Plaintiffs. This came about in unusual circumstances. At the conclusion of the hearing before me, Mr Hayes, junior counsel for the Plaintiffs who appeared by telephone from Melbourne, sought to raise a matter but wished to first discuss that with Mr Floreani, who appeared in person. As the hearing was then otherwise completed, I suggested that Mr Hayes confer with Mr Floreani over the lunch break and, if necessary, I would resume after lunch to hear any further argument. Although a suggestion had been made before I adjourned that the parties might deal with any further issues by written submissions, I was subsequently advised that it was not necessary to resume the hearing, but it appears the parties had also agreed amongst themselves that the Plaintiffs would provide further written submissions.
After considering the supplementary submissions, I think it was more appropriate that further oral argument should have been presented instead. Notwithstanding the Plaintiffs’ initial submissions, and the full argument presented by Mr Floreani at the hearing, some new matters were raised in the supplementary submissions.
Nonetheless, I will deal with the Plaintiffs’ supplementary submissions. They raise issues going to discretionary procedural matters such as the desirability of avoiding multiplicity of proceedings (which I think had been already dealt with in the Plaintiffs’ initial submissions and oral argument), and joinder of parties. A submission was also made that the complexity and novelty of the current case warranted Supreme Court consideration as opposed to a hearing before the Tribunal. Even if I were to accept that to be correct, that cannot have any bearing on the interpretation of the statute. It would be relevant perhaps to an argument concerning an application for a preliminary determination but the First Defendant abandoned that application and the Plaintiffs’ neither objected nor sought to make a similar application.
A submission was also made that the Court should endeavour to avoid the need for the Plaintiffs to seek a stay of the Supreme Court proceedings pending determinations by the Commissioner and/or the Tribunal. I thought that last submission was curious noting that the Plaintiffs had, before commencing the proceedings in this Court, commenced and then abandoned proceedings before the Commissioner.
The basis for the supplementary submissions concerning joinder of claims and parties was made in the context of the possibility of further actions by other purchasers of townhouses in the subject development. That is also a curious submission given that the Plaintiffs in the current proceedings, being represented at all times by the same legal advisers, have opted to issue separate proceedings. Nonetheless, I doubt that leave would be given to join other parties or claims. It is more likely that, in those circumstances, there would be an order, if appropriate, pursuant to rule 9.12 of the SCR, for either joint hearing or consolidation. I suspect that a joint hearing at least will be ordered for the two current proceedings.
I also refer to what I said in paragraph 27(c) above. I otherwise fail to see the relevance of discretionary procedural matters to the determination of the jurisdiction argument. It was at least unnecessary to revisit that in the supplementary submissions.
The submission was also made that contemporary building law supports the hearing of the current dispute by the Supreme Court. This submission was supported on the basis of legal texts which seem to be predicated on the Commonwealth cross-vesting legislation and two Victorian statutes. The submission was somehow coupled to this Court having unlimited civil jurisdiction, something which is clearly correct but the relevance of which was not made clear. Separately, the Plaintiffs also relied on the inclusion of a specific privative clause in the Victorian Domestic Building Contracts Act 1995, which conferred jurisdiction on the Victorian Civil and Administrative Tribunal. I fail to see how that is relevant to a determination of whether Parliament intended the enforcement process under the Act to be exclusive.
I was also referred to an authority of the Tribunal namely, Kulda & Kulda v System Homes Pty Ltd[40] where the same jurisdiction issue was raised. In that case, after a claim in relation to a consumer guarantee dispute under the Act had been rejected by the Commissioner, the applicant owners commenced proceedings in the small claims jurisdiction of the Tribunal. The Tribunal considered that the claim was founded on section 54FE(1)(a) of the Act which permits actions in courts and tribunals in specified circumstances. The most relevant of those circumstances is that the dispute does not involve a “consumer guarantee dispute”. The Tribunal in that case must have concluded that the claim was not in respect of such a dispute. I think that is correct as the Tribunal reasons describe the applicants as the owners of the premises. In that case, section 54FC(2)(b) would take that dispute outside the definition of a “consumer guarantee dispute”, as presumably there was a contractual relationship between the applicants and the builder.[41]
After a relatively brief consideration of the provisions of the Act, the Tribunal member concluded that the intention of the legislature was clearly to provide legislative processes while still preserving those available at common law. Although very little elaboration was provided for that conclusion, I agree with that conclusion if it was because the existence of a contractual relationship between the applicant owners and the respondent builder. In that way that case accords with my decision. If however it was meant to be a general conclusion that the legislative scheme does not provide for exclusivity of the enforcement process, then I disagree and that decision does not bind this Court.
It was also submitted that the Tribunal member applied the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission.[42] Noting that Tribunal decisions are not binding on this Court, I am not sure why the Plaintiffs did not refer directly to that High Court case. That case held that provisions of legislation are not to be construed such that they abrogate important common law rights in the absence of clear words, or necessary implication, to that effect in the language of the legislation. I agree with that principle and there is no real controversy in regard to the applicable principles of statutory interpretation. I am unsure of the purpose of the reference to this aspect of that case and I do not see that it was necessary for this to be the subject of supplementary submissions.
The second aspect of the First Defendant’s strike out application is that certain pleadings are embarrassing within the meaning of that term in rule 23.02(c) of the SCR, thereby justifying strike out of those pleadings and/or the refusal of leave to amend.
I recently considered the question of "embarrassing" pleadings in Kiranou v Black[43] and LKAJ Two Pty Ltd v Squire Patton Boggs & Anor.[44] Without repeating in full what I said there, for current purposes it suffices to restate that a pleading which fails to comply with pleading requirements is embarrassing. That includes not only pleadings which do not comply with the pleading requirements set out in the SCR but also the common law pleading rules. The pleading of conclusions and the provision of particulars as a substitute for material facts are examples of the latter.[45]
The Plaintiffs did not address this in their written submissions. Mr Floreani addressed the point during oral argument without really challenging that the pleading was defective. His was more a submission that all of the alleged defects could be cured and that an opportunity to correct the defects should be given.
The Second Defendant does not oppose the Plaintiffs’ application for leave to amend but has pointed out a number of typographical errors which require attention. Obviously the Plaintiffs should address those errors when making amendments, if leave is given for that purpose.

The First Defendant does oppose the Plaintiffs being granted leave to amend but this is very much relative to the First Defendant's strike out application. If I understand the position of the First Defendant correctly, the First Defendant is more concerned to ensure the matters raised in the strike out application are addressed in any further pleading. To that extent I do not understand the First Defendant's position to be one of strictly opposing leave on an absolute basis.
In any case, when a Court orders strike out of a pleading, whether in whole or in part, usually leave is given to re-plead. As I agree that all of the identified defects can be readily cured, I think the current case is one of the usual cases notwithstanding the number of iterations of the Statement of Claim to date.
The First Defendant identified a number of pleading faults. Firstly, paragraphs 20 and 21 in Exhibit P1, which plead matters related to the fidelity certificates provided for in section 54AC of the Act. The issue is that these paragraphs do not relate to any other part of the proposed amended Statement of Claim or to the relief sought. To that extent that cannot be a pleading of material facts. I doubt that those paragraphs are even the pleading of mode of proof,[46] as mode of proof must relate to material facts in any case, and the pleaded facts are not that. Unless there is some relevance, and nothing was put in answer to this complaint, the Plaintiffs should omit those paragraphs from any further version of the Statement of Claim.
Secondly, paragraph 22.4 in Exhibit P1 purports to provide particulars of the consumer guarantees on which the Plaintiffs’ claims are based. As that paragraph largely paraphrases the entirety of section 54AB of the Act, therefore all seven of the consumer guarantees in that section are apparently relied on. However, that is inconsistent with the pleadings in respect of breach in paragraph 23.1, which refer to only four of the seven available consumer guarantees. That inconsistency alone is enough to render the pleading embarrassing but, in any case, the pleadings in respect of the three consumer guarantees not apparently relied on cannot therefore be a pleading of a material fact. That renders the pleading in breach of the rule that only material facts are to be pleaded.[47]
Thirdly, and again in respect of the paragraphs dealing with breach, paragraphs 23.1 and 23.2 in Exhibit P1 simply re-state the terms of the consumer guarantees as an allegation of breach. What is required however is the pleading of material facts which inform the First Defendant specifically how it is alleged that the First Defendant breached the consumer guarantees. Alleging breach by simply repeating the provisions of the statute does not achieve that. Those paragraphs are a classic example of an impermissible conclusory plea and is directly at odds with Trade Practices Commission v David Jones (Australia) Pty Ltd[48] and Northern Territory of Australia v John Holland Pty Ltd.[49]
Fourthly, the particulars of breach are given by reference to a number of experts reports. Although particularising in that way is generally permissible, nonetheless they must inform the First Defendant of the specific allegations of breach. The First Defendant complains that the extensive tables appearing in the Exhibit P1 merely list all of the defects and do not inform as to which defect relates to which of the alleged consumer guarantees. The First Defendant is entitled to know that as part of the general pleading principle that a pleading is to inform the other party of the case to be met.[50]
Next, paragraph 28 pleads the Plaintiffs’ case in negligence. That paragraph demonstrates that the Plaintiffs are apparently again relying on the statutory consumer guarantees as the basis for the duty of care. Although that is acceptable for pleading purposes, the paragraph carries over the same fault as appears in the pleading of breach of the consumer guarantees in paragraphs 23.1 and 23.2. That is because the particulars of negligence in paragraph 28 simply rely on and repeat the particulars in paragraph 23.3. As a result, the pleading does not specifically inform the First Defendant as to which of the implied terms are the subject of each defect. As sated above, the First Defendant is entitled to know that.
Sixthly, the proposed paragraph 29 pleads a claim under section 60 of the ACL. There are a number of requirements which must be satisfied before there is an entitlement to claim based on that section. Material facts demonstrating satisfaction of those requirements must be pleaded[51] and the Plaintiffs have purported to comply. The specific challenge of the First Defendant is with respect to the pleading of the requirement as to the supply of services. Paragraph 29(c) of the proposed amended Statement of Claim purports to plead the necessary material facts but that paragraph pleads a bare allegation and is insufficient. The First Defendant is entitled to proper and detailed material facts establishing how the requirement is alleged to be satisfied, including precisely what services, within the meaning of the ACL, the First Defendant is alleged to have provided.
There is an additional issue with the pleading in respect of the claim under section 60 of the ACL. The First Defendant alleges that the limitation period for a claim by the Plaintiffs pursuant to that provision has expired. The First Defendant opposes leave to amend to include that claim for that reason. The basis for opposing leave to amend was only touched on briefly by Mr Roper in the course of oral argument. Upon further consideration, I assume Mr Roper was referring to the rule in Weldon v Neal[52] that an amendment to plead a cause of action which has since become statute barred will not be allowed.
However, the rule in Weldon v Neal has been abrogated in the Northern Territory with certain qualifications[53] and rule 36.01(6) of the SCR specifically empowers the Court to allow amendments notwithstanding the expiration of an applicable limitation period.
There is in any case an exception to the rule in Weldon v Neal namely, where there is the power to extend an applicable limitation period.[54] Query if that applies where the power to extend is a Territory law, such as section 44 of the Limitation Act, and the time limit is fixed by Commonwealth legislation. Likewise, I query whether there is a power to extend a limitation period in respect of claims under ACL, whether under the ACL itself or under generally applying Commonwealth legislation.
Overall this issue was not sufficiently argued. Rather than proceed on assumptions as to the basis of the First Defendant’s objection, what I intend to do is to further reserve this aspect of my decision. I will give directions for further submissions if the First Defendant seeks to press that objection.
The orders that I propose are firstly that the parts of the Statement of Claim being Exhibit P1 which plead a claim under Part 5A of the Act, as well as in respect of the pleadings which I have identified as defective and embarrassing, be struck out. Secondly, that the Plaintiffs have leave generally to file and serve a further Amended Statement of Claim. I will hear the parties as to the time that should be allowed for that purpose and as to costs and any other consequential orders.
I also give the First Defendant liberty to apply, on seven days notice to all other parties, in respect of the objection to the amendment of the claim under section 60 of ACL.

[1] The Third and Fourth Defendant now named in the heading.

[2]That is because in addition to the initial version endorsed on the Writs, the Plaintiffs filed an Amended Statement of Claim pursuant to rule 36.03(a) of the SCR on 8 November 2019, before any of the current applications were brought.

[3]As the Act provides in section 54AD that an owner includes successors in title to the original owner.

[4]Secretary v Northern Territory of Australia [2019] NTSC 73.

[5]Commonwealth of Australia v Verwayan (1990) 170 CLR 394; Brooks v Wyatt (1993) 99 NTR 12; McDonnell Shire Council v Miller [2009] NTSC 46; Wickham Point Development Pty Ltd v The Commonwealth of Australia [2018] NTSC 7; Motor Accidents (Compensation) Commission v Insurance Commission of Western Australia & Anor [2019] NTSC 68.

[6]Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4.

[7] These requirements were summarised in Motor Accidents (Compensation) Commission v Insurance Commission of Western Australia & Anor [2019] NTSC 68.

[8]See Williams, Civil Procedure Victoria, LexisNexus Butterworths at para 23.02.20.

[9] Australian Consumer and Competition Commission v Pauls Ltd [1999] FCA 1750; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191; see also the cases discussed at Williams, Civil Procedure Victoria, LexisNexus Butterworths, at para 23.02.20.

[10]Demetrios v Lehmann [2019] VSC 301; see also, Civil Procedure Victoria, LexisNexus Butterworths, at para 23.02.20.

[11] [1986] AC 368.

[12]See discussion in there Australian Civil Procedure, Cairns B., Thomson Reuters, 2016 at para 6.590.

[13] (1831) 109 ER 1001.

[14] (1914) 18 CLR 691.

[15] See Attorney General, Meat And Allied Trades Federation of Australia v Beck & Anor [1980] 2 NSWLR 77; Gwelo Developments Pty Ltd v Brierty Ltd (2014) 35 NTLR 1; North Wind Pty Ltd v Proprietors – Strata Plan 3143 [1981] 2 NSWLR 809.

[16]Section 54B of the Act.

[17]As defined in section 54AD of the Act.

[18]As defined in section 54AB of the Act.

[19]Both of these matters had been denied in the First Defendant’s Defence filed 9 January 2020, refer paras 17, 19, 23, 24 and 25.

[20](1914) 18 CLR 691 at p 697.

[21](1914) 18 CLR 691 at p 701.

[22] Regs 32(2)(b), 33(2), 34(2) and 86(3) of the Regulations.

[23]Reg 86(3) of the Regulations.

[24]Cirocco Constructions Pty Ltd v Clarke [2015] SADC 98.

[25]Section 54FE, as well as the exclusion of disputes which are not a “consumer guarantee dispute” in section 54FC.

[26]Defined in section 4 of the Act to be the owner of the land to which a residential building contract relates.

[27]See discussion at paragraph 27(a) above.

[28] Refer para 54 below.

[29] (1914) 18 CLR 691 at p 697.

[30]Subject to the power of the ability to transfer proceedings to this Court pursuant to section 99A of the Northern Territory Civil and Administrative Tribunal Act 2014.

[31] Reg 87 of the Regulations.

[32]Reg 32 re disputes generally, reg 33 in respect of orders for non-completion of works, reg 34 in respect of orders for defective works, Part 2.3 Division 2 in respect of mediation and conciliation, Part 2.4 in respect of technical inspections and reports.

[33]Made in the Plaintiffs’ supplementary submissions, see paras 49-51 below.

[34]Section 54FC(2)(b).

[35]As a "contracting owner" is still a "current owner" pursuant to the definition in section 4 and read with section 54AD; see also paragraph 29 above.

[36]Section 54FC(2)(b) and reg 18(1).

[37]Rule 46.04 of the SCR.

[38]Annexure BEM-9 to the affidavit of Blair McNamara made 16 June 2020.

[39] Rule 23.04 of the SCR.

[40] [2017] NTCAT 369.

[41]See discussion in paragraphs 31 and 32 above.

[42](2002) 213 CLR 543.

[43][2020] NTSC 60.

[44][2020] NTSC 45.

[45]Although the common law rules are arguably just an application of the requirements in the SCR, for example, rule 13.02(1)(a), which states that a pleading shall contain “a statement of all the material facts on which the party relies.”

[46]Which is impermissible in any case by reason of rule 13.02(1)(a) of the SCR.

[47]Rule 13.02(1) of the SCR and Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4.

[48] (1985) 7 FCR 109.

[49][2008] NTSC 4.

[50]Banque Commerciale SA v Akhil Holdings Pty Ltd (1989) 169 CLR 279.

[51]Buric v Transfield PBM Pty Ltd (1992) 112 FLR 189.

[52] (1887) 17 QBD 394.

[53] Section 48A Limitation Act.

[54] Kingston Earthworks Pty Ltd v Iles (1997) 6 Tas R 443.