Reed Construction (Qld) Pty Ltd v Frankpile Australia Pty Ltd

[2009] QSC 83

SUPREME COURT OF QUEENSLAND

CITATION:

Reed Construction (Qld) Pty Ltd v Frankpile Australia Pty Ltd [2009] QSC 83

PARTIES:

REED CONSTRUCTION (QLD) PTY LTD
ACN 010 871 557
(plaintiff/respondent)
v
FRANKPILE AUSTRALIA PTY LTD
ACN 000 842 240
(defendant/applicant)

FILE NO/S:

SC No 13130 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2009

JUDGE:

Chief Justice

ORDER:

1.   That the defendant’s application for the relief claimed in paragraphs 1 and 2 of its application filed 27 March 2009 is refused.

2.   That costs of the application be reserved.

3.   That the proceeding be placed on the Supervised Case List.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – Application to strike out parts of statement of claim – supply of particulars with more to come after disclosure of documents – whether defendant should be required to plead to statement of claim in its present form

Hadley v Baxendale (1854) 9 Exch 341, considered
Re Moage Ltd (in liq); Moage Ltd (in liq) v Jagelman and Others (1998) 153 ALR 711, considered

COUNSEL:

M K Stunden for the applicant
T Matthews for the respondent

SOLICITORS:

HWL Ebsworth for the applicant
Holding Redlich for the respondent

1. CHIEF JUSTICE: The plaintiff has commenced a proceeding claiming damages for breach of contract and/or negligence in the sum of approximately $3.6 million.  The claim arises from a dispute over the defendant’s performance under a $1.19 million “design and construct” sub-contract.  The defendant was to establish secant wall foundation piling at the basement car park level of an apartment development bordering the river at Maroochydore.  The plaintiff alleges that the defendant breached the contract, and/or acted negligently, with the consequence that water filled the excavation site, obliging the plaintiff to have interim and future rectification work carried out, and to incur liability for liquidated damages and prolongation costs.

1. The plaintiff delivered its statement of claim on 17 December 2008.  The defendant has sought particulars of the statement of claim.  Some have been provided – the plaintiff says so far as it can respond, pending the results of the disclosure of documents.  The plaintiff has agreed to provide further particulars once that has been done.  The defendant has not yet filed a defence.

1. Mr Matthews, who appeared for the plaintiff, provided me with a document headed “table of all particulars requested and the plaintiff’s response”.  Passing from left to right, it specifies the paragraph of the statement of claim of which the particulars were sought, the particulars which were sought, the particulars which were provided, and subsequent further requests.  The yellow shading in the paragraph headed “further request” was said to indicate that the further request had been abandoned, although Mr Stunden, who appeared for the defendant, did not accept the complete accuracy of that column in that regard.  For convenience of reference, I mark that table with the letter “A” and place it with the papers.

1. When I first read the statement of claim, I considered it commendably concise for a claim of this character.  Hearing Mr Stunden’s submissions, however, I accept that some of his criticisms will warrant further revision of the pleading, at some stage.  His main criticisms were these:

1.          Paragraph 6, alleging matters which the defendant knew or ought to have known, is irrelevant.

2.          Paragraph 7 inappropriately alleges a duty of care, in tort, to perform “in accordance with the terms of the contract”.

3.          Paragraph 9 is objectionable:

(a)        for the “and/or” approach;

(b)        in not identifying, respectively, the breaches of contract and particulars of negligence; and

(c)        in not tying design, or installation, into the respective causes of action in breach of contract and negligence.

4.          Paragraph 10 should have related particular breaches to particular consequences. 

5.          Paragraph 11 should have related particular losses to particular breaches.

1. Dealing with those matters briefly, and following the same numbering:      

1.          I accept Mr Matthews’ submission that the state of the defendant’s knowledge could bear upon the cause of action in negligence, and on the assessment of damages, in relation to the second limb of Hadley v Baxendale (1854) 9 Exch 341.

2.          Mr Matthews accepted that paragraph 7 should be amended to delete its closing words, “in accordance with the terms of the Contract”. 

3.          I note the criticism of the use of “and/or” in a pleading, helpfully gathered together in Re Moage Ltd (1998) 153 ALR 711, 716-7. Mr Matthews candidly acknowledged that the plaintiff was effectively keeping options open by expressing the matter in that way, pending further delineation of its claims upon the completion of disclosure. I accept that the plaintiff cannot presently be more precise.

As to the other matters, as the paragraph currently stands, the failure specified in (a), (b) and (c) must effectively be read as relating to both design and installation, and the pleading may comprehensibly be read in that way.  The plaintiff was apparently not asked, through the request for particulars, which particular provisions of the contract were breached by the failure specified in paragraph 9.  Having provided some particulars, the plaintiff said this:

“The plaintiff, if necessary, will further particularize this allegation upon receiving disclosure from the defendant which, if made properly, should identify the specific methods and application used by the defendant in designing and installing the secant pile walls, allowing the plaintiff to identify the specific failures.”

I would have though it fairly clear that this part of the case relates back to clauses 14 and 35 of the sub-contract checklist; see paragraph 5(c) and (d) of the statement of claim.

4.          I am not convinced that the plaintiff needed to tie particular consequences to particular breaches.  In my view it sufficed for the plaintiff to allege the collective consequences of the breaches of contract and negligence, if that were the case it wished to present.

5.          The defendant complains essentially of an inability, because of the form of the pleading, to explore whether there was a causal link between particular breaches and particular losses.  Again, I am not convinced that the plaintiff was obliged to plead its case in that way, and I refer back to paragraph 4 above.  I consider it is generally clear what the plaintiff is alleging.

1. There is nevertheless a certain generality about this statement of claim, including the amounts claimed in the appendixes, and the basis upon which they have been calculated.  There plainly will have to be some amendment of the statement of claim as the matter progresses. 

1. But at this stage I am not prepared to strike out the parts of the statement of claim to which the defendant objects, being paragraphs 6, 7, 9, 10, 11, 12 and appendix A and appendix C.  Neither would I at this stage oblige the plaintiff to provide the further and better particulars referred to in paragraph two of the application filed 27 March 2009.  I consider that the statement of claim is in a form to which the defendant can properly plead.

1. Apart from the specific matters set out in the numbered paragraphs above, I am conscious that the plaintiff has apparently done its best to respond to the requests for particulars, as emerges from the document I have marked “A”, and that there is the prospect of further not insubstantial refinement – of the pleading and the particulars – once the process of disclosure of documents has been completed.

1. The orders I make are that the defendant’s application for the relief claimed in paragraphs 1 and 2 of its application filed 27 March 2009 is refused, and that costs be reserved.

1. Costs may be re-examined later in the piece, when the extent of the further amendment of the statement of claim which will be necessary can be seen.  That will facilitate a better assessment, then, of the reasonableness of the parties in their approach to the matter at this stage.

1. There will also be an order that the proceeding be placed on the Supervised Case List.  It is preferable a case of this character be placed on that list rather than the Commercial List, as Counsel appeared to accept.  That is because of the nature of the issues and the length of the trial, and the need to reserve the Commercial List for the expeditious, early determination of truly commercial disputes.