Quattro Developments Pty Ltd v Pacemont Pty Ltd

[2006] QDC 266

[2006] QDC 266

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2191 of 2006

QUATTRO DEVELOPMENTS PTY LTD (ABN 66 093 910 215)	Plaintiff
and
PACEMONT PTY LTD	Defendant

BRISBANE

..DATE 13/07/2006

ORDER

CATCHWORDS: Practice and procedure - application for summary judgment including alternative reduced claim for judgment on admissions adjourned on defendant's filing by leave an application supported by an affidavit of a preliminary notice seeking leave to withdraw the relevant admissions - both applications adjourned, with directions - defendant ordered to pay indemnity costs.

HIS HONOUR:  This is an application for summary judgment under Rule 292 for the whole of the plaintiff's claim, which arises under a building contract for a contract price well in excess of $3 million.

There was an alternative claim in the application, which was filed on the 9th of June 2006, and (on information from the Bar table) served by posting on that day, for about two-thirds of the full amount, based on admissions in the defence and counterclaim, which was filed on the 28th of February this year, being the last day.

I accept that the defendant's concern to get its defence in in time would have produced a situation of considerable and perhaps undesirable pressure, given the degree of complexity of the statement of claim. 

That observation is pertinent because following a recent change of solicitors, the defendant wishes to assert that through some combination of misunderstandings on the part of some officer or officers of the defendant and the former solicitors, admissions were made which should not have been made.  It is now said that certain "progress claims" admitted in the defence to bear that character on a correct analysis did not, and therefore could not be a foundation for a claim to payment - even though not, as a matter of history, disputed.

Mr Burnett, for the defendant, has obtained leave to read and file an application seeking leave to withdraw admissions supported by an affidavit of Mr A C Khoury.  He needs further instructions from Mr Khoury's father and perhaps others to prepare the defendant's best case for leave to withdraw the admissions and expects to be in a position to provide complete material in support of the application filed by leave on the 25th of this month.

There has been a substantial change in the defendant's stance even since last Friday, when there was filed by the new solicitor the first material of the defendant for use in resisting the summary judgment application.  This is an affidavit of Mr Williams, a licensed builder and "project manager employed by the plaintiff".  Is that correct?

MR THOMSON:  Yes, it is correct, your Honour.

HIS HONOUR:  That document verifies the contents of the defence and counterclaim.  Now that the defendant wishes to resile from the position indicated by Mr Williams' affidavit.  I think I have to proceed today on the basis that it cannot be said there is no prospect of leave to withdraw the admissions being obtained. 

Mr Williams may well be a practical person without the skills necessary to reliably interpret complex building contract provisions.  On the other hand, Mr Thomson, for the plaintiff, might be right, that he may be a person whose judgment in these matters will prove sound. 

The plaintiff cannot complain of being held up in the proceeding to date.  The inconvenience or disappointment flowing from the adjournment today can, in principle, be assuaged by an order for costs.  Those are sought on an indemnity basis by Mr Thomson who has tendered, as Exhibit 1, a letter of the defendant's new solicitor of the 7th of July 2006 which refers to the summary judgment application and advises "that should it fail, we will be asking for costs on an indemnity basis".

There is probably something in Mr Burnett's characterisation of assertions of that nature as typical solicitor belligerence.  The letter is not the only reason for my acceding to Mr Thomson's request.  It seems to me that no complaint can be made in respect of his client's conduct of the proceeding and it remains to be seen whether it did anything wrong during the working out of the building contract.

On the other hand, there is a defendant changing its stance at the very last moment and in the radical way indicated which involves an attempt to withdraw admissions.

The Court's orders will be to adjourn the application for judgment filed on the 9th of June 2006 and the defendant's application for leave to withdraw admissions to the 9th of August 2006.

The defendant must file and serve further affidavits by the 25th of July 2006 and the plaintiff its affidavits in response by 4th of August 2006.

I order that the plaintiff's costs occasioned by the adjournment be paid by the defendant on the indemnity basis and assessed if quantum is not assessed.

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