Serling Consulting (Australia) Pty Ltd v KH Properties (Australia) Pty Ltd

[2019] WADC 110

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SERLING CONSULTING (AUSTRALIA) PTY LTD -v- KH PROPERTIES (AUSTRALIA) PTY LTD [2019] WADC 110

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   31 JULY 2019

DELIVERED          :   14 AUGUST 2019

FILE NO/S:   CIV 1224 of 2015

BETWEEN:   SERLING CONSULTING (AUSTRALIA) PTY LTD

Plaintiff

AND

KH PROPERTIES (AUSTRALIA) PTY LTD

Defendant

Catchwords:

Application for further and better particulars of pleading - Terms of contract said to be expressed in a letter - Pleaded terms different to those in the letter - Turns on its own facts

Legislation:

Nil

Result:

Certain paragraphs of the defence and counterclaim struck out

Representation:

Counsel:

Plaintiff	:	Mr G Carter
Defendant	:	Mr K J O'Toole

Solicitors:

Plaintiff	:	My Law Firm Pty Ltd
Defendant	:	James Chong Lawyers

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

Nil

DEPUTY REGISTRAR HEWITT:

1. This action commenced by a writ filed on 13 April 2015 and has made disappointingly slow progress to the present time.  On 25 January 2019 the court ordered the plaintiff to file any application for further and better particulars and for orders that the defendant amend the substituted defence with a return date of 22 February 2019.  That chamber summons was filed on 1 February 2019 and on 22 February 2019 the matter came before the court for hearing. 

2. The matter was reserved and a decision was delivered on 16 April 2019 that decision being that the plaintiff provide the further and better particulars requested by the plaintiff.  Answers to the request were filed on 16 April 2019.  In the meantime a notice of default was issued on 1 May 2019 and a request for further and better particulars of defence lodged on 9 May 2019.  On 24 May 2019 the plaintiff filed an application that the action be removed from the inactive cases list and for orders that the defendant give proper answers to the request. 

3. On 26 July 2019 the defendant amended its defence and counterclaim in a manner which effectively satisfied certain of the requests.  As a consequence the plaintiff amended its chamber summons to accommodate the amendment to the defence and counterclaim.  That document was filed on 29 July 2019.

4. On 31 July 2019 the matter came before me and proceeded on the basis of the amended chamber summons and the amended defence further amended defence and counterclaim to the substituted statement of claim.  By that the stage the argument had distilled down to a narrow point.  Paragraph 11 of the defence was in the following terms:

   11.The Defendant denies each and every allegation in paragraph 11 of the Substituted Statement of Claim.  The Defendant says that it entered into a written contract (hereinafter 'the Contract') with the Plaintiff in about August 2013 based on terms that were expressly proposed to the Defendant by the Plaintiff in a letter dated 30 July 2013 for provision by the Plaintiff of professional services (hereinafter 'the Works') as follows to facilitate the lawful subdivision and sale of the Land.

   Concept and detailed design to approval for wastewater, water and civil works (inclusive of earthworks, retaining walls, roads, stormwater drainage design).

   Management of sub-consultants for services, included but not limited to; survey, telecommunications, power, geotechnical, hydrology/urban water management plan (UWMP), planning consultant and financial marketing consultant/s as required.

   Management of tender documentation including provision of Specifications Tender Documents in accordance with City of Swan requirements, management of the tender phase, Contractor selection processes and reviews through to contractor selection.

   Management of the Construction Contract as the Superintendents' Representative including attendance on-site once every week and attendance at all start-up meetings and Joint Final Inspections with the Water Corporation and the City of Swan.

   Completion of a list of "Incomplete Works" prior to final inspection with the City of Swan and the Water Corporation, so that the contractor has a concise list of the requirements in the lead-up to the final inspections.

   The Contract was constituted by a letter dated 30 July 2013 from the Plaintiff to the Defendant countersigned by the Defendant.  The consideration for the Works is set out in the said letter under the heading 'Fee Structure' in particular that the fee for the Works would be a lump sum of $229,775, exclusive of GST, on completion of the Works.  The said letter will be referred to at trial for its full terms and effects.

5. As can be seen the terms of the contract between the plaintiff and the defendant are said to be contained in letter dated 30 July 2013 for provision of the works described.

6. A copy of the letter dated 30 July 2013 appears in the affidavit of Mr M A Oteri which was lodged on 24 May 2019:

   The scope of works quoted in this offer include:-

   •Concept and detailed design to approval for wastewater, water, power, telecommunications and civil works (inclusive of earthworks, retaining walls, roads, stormwater drainage structures).

   •Management of tender documentation including provision of Specifications, Tender Documents in accordance with City of Swan requirements, management of tender phase, Contractor selection processes and reviews through to Contractor selection.

   •Management of the Construction Contract as the Superintendents' Representative including attendance on-site once every week and attendance at all start-up meetings and Joint Final Inspections with the Water Corporation and the City of Swan.

   •Completion of a list of 'Incomplete works' prior to final inspection with the City of Swan and the Water Corporation, so that the Contractor has a concise list of their requirements in the lead-up to the final inspections.

7. The problem exposed by the comparison of those two documents is obvious, the works which are described in the pleading do not match the works which are set out in the letter.  Apart from numerous differences in wording there is one completely new paragraph inserted as follows:

   Management of sub-consultants for services, included but not limited to; survey, telecommunications, power, geotechnical, hydrology/urban water management plan (UWMP), planning consultant and financial marketing consultant/s as required.

8. Nowhere in the letter which is said to contain the express terms pleaded does that paragraph appear.  There are other differences but I think the one I have highlighted is sufficient to illustrate the problem.  Counsel characterised these matters as a transcription error.  It is difficult to see how such an error can create a completely new paragraph out of thin air.  Whatever led to these differences they contaminate the pleading in both par 11 of the defence and pars 4 and 5 of the counterclaim.  There are two possibilities:

   (a)the contract between the plaintiff and the defendant was not contained in the letter dated 30 June 2013 but some other document; or

   (b)the agreement was on the terms set out in the letter dated 30 June 2013 but the terms said to be created by that document have been copied from some source other than the document.

9. Whatever the cause of the problem it must be rectified.  I intend to order that the offending paragraphs be struck out and that the defendant have 14 days to file and serve a further amended pleading overcoming the problems I have identified.  Those pleadings must be properly particularised with the details sought by the plaintiff.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

KT
Court Person

13 AUGUST 2019