Premier Building and Consulting Pty Ltd v Spotless Group Ltd (No 8)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST

No. 8264 of 2003

PREMIER BUILDING AND CONSULTING PTY LTD (ACN 066 568 367)	Plaintiff
V
SPOTLESS GROUP LIMITED (ACN 004 376 514) AND OTHERS	Defendants

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IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
REAL PROPERTY LIST

No. W9/2004

PREMIER BUILDING AND CONSULTING PTY LTD (ACN 066 568 367)	Applicant
V
SPOTLESS GROUP LIMITED (ACN 004 376 514) AND OTHERS	Respondents

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IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
REAL PROPERTY LIST

No. W61/2005

NORTH SUBURBAN PROPERTIES PTY LTD (ACN 065 883 614)	Applicant
V
SPOTLESS GROUP LIMITED (ACN 004 376 514) AND OTHERS	Respondents

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF RULING:	6 July 2006
CASE MAY BE CITED AS:	Premier v Spotless (No 8)
MEDIUM NEUTRAL CITATION:	[2006] VSC 505

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Applicant (Premier)	Mr J Burnside QC with Mr T Boston	Gadens Lawyers
For the First, Third and Ninthnamed Defendants (Spotless parties)	Mr S G Finch SC with Mr T J Walker and Mr J Slattery	Freehills
For the Secondnamed Defendant/Applicant (North Suburban)	Mr M Dreyfus QC with Marita Foley	Mirabelli, D’Ortenzio & Co
For the Fourthnamed Defendant (Collie)	Mr R Manly SC with Mr M Whitten	Monahan + Rowell
For the Fifthnamed Defendant (Keen)	Mr J Gobbo QC with Mr D Aghion	Deacons
For the Sixth Defendant (Moreland)	Mr R Macaulay SC with Dr A Hanak	Moray & Agnew
For the Seventh Defendant (Kilpatrick)	Mr J R Dixon with Ms R Doyle	Slater & Gordon
For the Eighth Defendant (McMullin)	Mr G Uren QC with Mr Parmenter	Mallesons Stephen Jaques
For the Tenth Defendant (McKenzie)	Mr J Davis with Mr J Lewis	Tresscox
For the Third Party (Burkett)	Mr W Lally QC with Mr J Nixon	Mills Oakley

HIS HONOUR:

The present application is brought by the Spotless parties to strike out a number of paragraphs of the Premier third amended statement of claim in the court proceeding; alternatively to strike out the particulars given under them with a further order that the plaintiff provide further and better particulars; alternatively simply an order that the plaintiff provide further and better particulars.

Paragraph 27A has been taken as an exemplar of a number of paragraphs about which the Spotless group defendants take issue both in this proceeding and in the associated VCAT proceedings. The Spotless parties also attack paragraphs of the pleading of North Suburban, all on the same basis. I reject the submissions of the Spotless group for the following reasons.

The matters have already been debated before me when the pleading was subject to a more general attack back in 2004. I have been referred to the submission that was presented to me on that occasion and it is clear that the sort of complaints that are now made were then made. On that occasion no order was made striking out the proceeding, but the Spotless defendants were given the opportunity to seek further particulars if they needed them. This they did: particulars were sought on 17 February 2005 and on 31 May 2005 a response was given.

The particulars were unhelpful in respect of the paragraph presently under consideration because objection was taken. There things stood until now when the matter is brought on again, not quite a year after the particulars were provided.

In the circumstances it seems to me as a matter of discretion that I ought not to accept the submission that the matter should be revisited.

My abiding concern as the managing Judge is that the parties not be unfairly disadvantaged in presenting their cases. For this reason, and to some extent, too, to ensure that the trial Judge can understand what the case is about, I have looked again at paragraph 27A and heard what is said for and against it. I remain unpersuaded that it is embarrassing. Accordingly, the application with respect to this paragraph will be dismissed.

Since the same issues arise upon the balance of the applications, the result must be that all must be dismissed and I will so order.

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The defendants, Spotless Group Limited and others, have applied to the court to strike out several paragraphs of the third amended statement of claim by the plaintiff, Premier Building and Consulting Pty Ltd, in a proceeding and in associated proceedings before the Victorian Civil and Administrative Tribunal. The Spotless parties also seek to strike out paragraphs of the pleading of North Suburban Properties Pty Ltd, on the same basis. The court was required to decide whether the statements of claim contained sufficient particulars to inform the defendants of the claims being made against them. The court had to consider whether the plaintiffs' pleadings were clear and precise enough to allow the defendants to understand the nature of the claims and to prepare a defence.

The court found that the plaintiffs' pleadings were adequate and that the defendants' applications to strike out the paragraphs in question should be dismissed. The court noted that the issues raised by the Spotless parties were not new and had been previously considered in 2004 when the pleading was subject to a more general attack. The Spotless defendants had been given the opportunity to seek further particulars, which they did, but the response provided was unhelpful as objections were taken. The court held that it was a matter of discretion whether to revisit the issue, and it decided that the parties should not be unfairly disadvantaged in presenting their cases. The court also considered the need to ensure that the trial judge could understand what the case was about. The court found that the plaintiffs' pleadings were not embarrassing and that the applications should be dismissed.

The court dismissed all of the Spotless parties' applications to strike out paragraphs of the statements of claim and ordered that the proceeding and the associated VCAT proceedings continue as scheduled. The court held that the plaintiffs' pleadings were sufficient to inform the defendants of the claims being made against them and that the defendants were not unfairly disadvantaged in preparing their defence. The court also held that the plaintiffs' pleadings were not so vague or uncertain as to render the proceedings an abuse of the court process.

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