Stockland (Constructors) Pty Ltd v Darryl I Coombs Pty Ltd and 2 Ors - [2002] NSWSC 721

No judgment structure available for this case.

CITATION: Stockland (Constructors) Pty Ltd & Anor v Darryl I Coombs Pty Ltd & 2 Ors [2002] NSWSC 721

FILE NUMBER(S): SC 55046/99

HEARING DATE(S): 9/08/2002

JUDGMENT DATE: 9 August 2002

PARTIES :

Stockland (Constructors) Pty Ltd (First Plaintiff)
Stockland (Properties) Pty Ltd (Second Plaintiff)
Darryl I Coombs Pty Ltd (First Defendant)
Philip J Flook Pty Limited (Second Defendant)
Retail Design Group (International) Pty Limited (Third Defendant)

JUDGMENT OF: Einstein J

COUNSEL : DE Grieve QC, PL Dodson (Plaintiffs)
AW Street SC, Mr R Newell (3rd Defendant)

SOLICITORS: Cohen & Krass (Plaintiffs)
Bull, Son & Schmidt (3rd Defendant)

CATCHWORDS: Pleadings - Amendment

LEGISLATION CITED: Fair Trading Act 1985
Supreme Court Rules
Trade Practices Act 1974

CASES CITED: Bruce v Odhams Press Ltd (1936) 1 KB 697
Little v Law Institute of Victoria (1990) VR 257

DECISION: Leave to replead particular paragraphs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CONSTRUCTION AND TECHNOLOGY LIST

Einstein J

Friday 9 August 2002 ex tempore
Revised Thursday 29 August 2002

55046/99 STOCKLAND (CONSTRUCTORS) PTY LTD & ANOR v DARRYL I COOMBS PTY LTD & 2 ORS

JUDGMENT

1 There is before the Court a notice of motion pursuant to which the plaintiffs in the proceedings, who are cross-defendants to a cross-claim, seek judgment in respect of the causes of action set out in paras 16 to 25 of the amended cross-claim pursuant to Pt 13 rr 3 and 5 of the Supreme Court Rules, and in the alternative that paras 16 to 25 inclusive of the amended cross-claim be struck out pursuant to Pt 15 r 26 of the Supreme Court Rules.

2 The manner in which the motion has been heard commenced with Mr Grieve QC taking the Court to the relevant materials in the form of the amended cross-claim of 7 May 2002 and, in terms of it being necessary for the Court to follow the proceedings, by taking the Court to the first amended summons filed 8 February 2002.

3 Mr Street SC, for the third defendant, which is the relevant cross-claimant in terms of the notice of motion, then sought to rely upon a number of materials going to matters of fact.

4 Those materials were conveniently identified in the transcript then being taken of the argument as MFI R1. They extended to include an advice by Mr Amerena, barrister at law, and sundry other materials. The Court made clear that in terms of so much of the motion as effectively involved a pleading issue, it was not persuaded that those materials were such as to permit them into evidence on the application and hence they were marked for identification only.

5 The additional materials that Mr Street sought to rely upon included a request for particulars, which became exhibit R1, together with the response, and the request, having been made on 20 June 2002, was responded to on 31 July 2002.

6 Additionally, Mr Street sought to hand up a document which in a careful attempt to identify and match the now particulars to the previous form of amended cross-claim, became MFI R3.

7 The background, as pleaded by the plaintiffs to the proceedings, clearly emerged from the form of the first amended summons. The plaintiffs' contentions fairly clearly outlined the causes of action upon which the plaintiffs rely for the purposes of pursuing their claims to damages, interest and costs. I do not intend in this interlocutory judgment to repeat the plaintiffs' contentions but it seems fairly plain from these contentions that, at least from the plaintiffs' side of the bar table, the problems leading to this litigation arose some considerable time ago and arose in relation to a shopping centre, which became known as the Earlville Shopping Centre and was constructed in Queensland.

8 A short outline by way of a summary of the facts, which the Court notes is not necessarily accepted at all by the defendants, was prepared by Mr Dodson of counsel and in that summary, albeit for the purposes of a submission as to background, the following appeared:

(2) By its agreement with the Trustee, Constructors was to carry out the Cairns Project and, for that purpose, was to engage architects and engineers, contractors, subcontractors and suppliers and to pay them for goods supplied and services rendered.

(3) At all material times, the first and second defendants were architects trading as 'Hoffer Reid & Coombs' and the third defendant was a company providing retail design services. All three had from time to time provided professional services to Constructors prior to the Cairns Project. In about June 1992, the defendants constituted themselves as a joint venture for the purpose of providing architectural and design services for the Cairns Project, which was then in contemplation.

(4) The defendants entered into an agreement (constituted by correspondence, the main document being dated 31 August 1992) by which they were engaged as the architectural consultants for the Cairns Project. They were to provide comprehensive architectural services, including design development (which included liaison with other consultants involved in design development), the provision of construction drawings, coordination of the consulting team (which included an engineer and a quantity surveyor) construction administration and related work, which involved among other things the preparation of 'trade packages'- (invitations to subcontractors to tender, accompanied by architectural and engineering drawings and related documents). Contractors (sic) contends it retained the defendants to provide these services. The defendants contend that they were retained by Properties.

(5) It has been contended that there was a conventional implied term that the defendants would perform their obligations with due care, skill and diligence and in accordance with proper professional standards. It has also been contended that the nature of the services gave rise to a duty of care, breach of which may be characterised as professional negligence.

(a) The architectural drawings in the package did not adequately depict the structural steel components required to be fabricated and erected, that is, there were omissions and inaccuracies

(b) Because the defendants failed to coordinate the architectural drawings with the structural engineering drawings, the totality of drawings in the tender package, when taken together, did not adequately depict the works to be carried out by the prospective subcontractor; that is, there were conflicts between the architectural and engineering documents.

(7) The defendants have denied these contentions and have also adduced evidence intended to show that Constructors brought about a situation in which the defendants had no option but to include incomplete drawings and uncoordinated drawings in the tender package and that Constructors condoned that situation.

(8) There was no successful tender until, in January 1995, the same trade package was issued to DA Story Pty Ltd ('Story'), which submitted a tender which was accepted by Constructors. By an agreement ('the Story subcontract') made in or about 18 January 1995 between Constructors and Story, Story agreed to fabricate, supply and erect certain of the structural steel required for the project in consideration for $1,658,203.

(9) Story carried out most of the subcontract works between January 1995 and early 1996, but claimed that because of inadequacies of documents in the trade package, it had to carry out vastly more work than it had contracted for. The structural steelwork which it ultimately fabricated and erected was substantially different from what was depicted by the defendants in the architectural drawings. Lack of co-ordination between the documents in the package gave rise to problems which resulted in expenses and losses. Story also asserted that it was obliged to incur uncontemplated costs and that it suffered damage by reason of deficiencies in the trade package.

(a) $566,650 as the part of the settlement sum representing compensation for additional work carried out by Story and for its other losses;

(b) $253,475 for investigating, defending and properly settling the action; and

9 Turning to the subject matter of the notice of motion. It is paras 16 to 25 of the amended cross-claim which are plainly in focus. Those paragraphs, as appearing in the amended cross-claim, which is currently the only document filed and bearing the description "amended cross-claim", will be appended to the judgment when it is produced in typed form.

10 There has been some difficulty from the Court's perspective in listening to the respective submissions because from time to time the plaintiffs' senior counsel confined himself to the amended cross-claim in the form filed on 7 May 2002 and from time to time he ventured to treat with the form of further amended cross-claim, with all the additional particulars, which now comprises MFI R3. MFI R3 will also, as a matter of convenience, be appended to the judgment in its typed form.

11 It should be noted that as I understand the position the cross-claimant's submission had been ordered to be served by 19 July 2002 but in breach of that direction they were served late on 31 July 2002, no extension of time having been sought and no explanation for non-compliance having apparently been offered. Further and better particulars of impugned paragraphs were then apparently served with those submissions.

12 Commencing with the amended cross-claim in the form in which it was filed on 7 May 2002 it is convenient to note that there are essentially apparently two brackets of paragraph seeking to lay a foundation, as I understand it, for claims pursued pursuant to the Trade Practices Act.

13 The first bracket of paragraphs commences with para 16 and runs up to and includes para 21. That bracket may be referred to as the first Trade Practices Act claim. The second bracket commences at para 22 and runs up to and includes para 25 and may be referred to as the second Trade Practices Act claim.

14 Commencing with the second Trade Practices Act claim one finds that para 22 alleges that the first and/or the second cross-defendant represented that:

“A. The agreement entered into with Story Steel was based on a genuine arms length tender price.

B. The contract price was not based on disclosure of information as to the budget price established by the first and/or second cross-defendant.

C. The agreement was not entered into as a result of or in consideration of a secret commission.”

15 The particulars to that paragraph of the amended cross-claim filed on 7 May 2002 were as follows:

“The said representations arise from the summons and the amended summons filed in these proceedings.”

16 It is patently obvious that particulars in that form are entirely out of order in terms of the practice and procedure in the Supreme Court of New South Wales. What, it may be asked, does the word "arise" in the phrase "arise from the summons" refer to or mean? Representations, as a matter of procedural fairness, when pleaded have to be pleaded in a fashion such that the party responding to the pleading can follow precisely what it is that is being pleaded.

17 I turn then to the MFI R3 proposed further amended cross-claim form of expanded particulars to that paragraph. Here one has the relevant particulars as expanded in the following terms:

“The said representations are continuing and arise from the matters particularised under paragraph 16 and further communications with Stockland Property Management Ltd, Stockland Properties Pty Ltd and The Trustee Company of Australia Ltd in the context of the allegations recorded in the summons and the amended summons filed in these proceedings, and are collateral to the representations recorded in the summons and amended summons (as well as from communications and dealings with Stockland Property Management Ltd, Stockland Properties Pty Ltd and The Trustee Company of Australia Ltd). The said representations were made with the intention of inducing reliance and for a substantial commercial purpose, that being to secure an allowance for cost overruns and to shift blame and focus for the Queensland proceedings on to the architects.”

18 That eight and a half line set of so-called complemented or amended particulars tends, as it seems to me, to suffer from the clear tendency that the paragraph has, to cause prejudice, embarrassment or delay in the proceedings.

19 To the extent that the search is to ascertain what were the precise representations sought to be relied upon in para 22 it is certainly true that the pleader now seeks to revert back to matters particularised under para 16 and in due course I propose to turn to those matters and at that time to refer to the particular difficulties with even the further particulars under para 16.

20 For present purposes it is material to point out that the words "further communications with Stockland Property Management Ltd, Stockland Properties Pty Ltd and The Trustee Company of Australia Ltd" leave a reader of the pleading entirely in the dark as to what these further communications were.

21 The following words, "in the context of the allegations recorded in the summons and the amended summons filed in these proceedings", likewise suffer from the defect that one simply as a matter of English, does not know what the pleader is referring to.

22 I turn then to the following words which follow the comma, namely "and are collateral to the representations recorded in the summons and amended summons". Here again a reader has no idea from the words in the particulars, as to what precisely the pleader is referring to.

23 I may not entirely understand what the pleader here intends but I have generally gleaned from the submissions put forward by Mr Street of senior counsel, and hopefully correctly, that use of the term "collateral to representations" is in some fashion intended to deal with or to outflank the plaintiffs' strongly pressed submission that this pleading, insofar as representations are apparently pleaded that certain conduct took place during the course of and for the purposes of conducting and preparing, presumably for the conducting of particular litigation in Queensland, the expression "in trade and commerce" does not extend to the conduct of litigation or to statements made in the course of litigation.

24 In Little v Law Institute of Victoria (1990) VR 257 the Court considered whether allegations made in court proceedings could constitute conduct “in trade or commerce” for the purposes of relevant sections of the Fair Trading Act 1985, including a section which was relevantly indistinguishable from s52 of the Trade Practices Act and held that statements made in the course of litigation cannot be characterised as statements made "in trade or commerce", nor can they be categorised as "representations". The plaintiffs' submission is that court proceedings do not, "bear a trading or commercial character and that participating in litigation is plainly not within the central conception of trade and commerce.”

25 As I have generally understood the submissions advanced by Mr Street, the reference to representations which were collateral to representations recorded in the summons and amended summons is generally suggested as a vehicle for quarantining from what may otherwise not amount to conduct in trade and commerce, a suggested bracket of representations which, although related to the conduct of the litigation, may, if there is a principle of the type expounded by the Victorian Court of Appeal, leave the defendants outside of the reach of that principle.

26 The words in parenthesis in the particulars to para 22 of the form of further amended cross-claim, part of MFI R3, further suffer from the defect that one simply does not know precisely what those communications or dealings were. The paragraph then commences to deal with an entirely different topic, namely the question of intent.

27 Where a pleading seeks to plead a relevant intent, not that any such intent is necessary as one of the well-known elements of s52, it is necessary for the pleader to be quite plain as to what the intention amounted to, who made the representations with that intent. When and where the substantial commercial purpose is here sought to be described, it is described to my mind in an entirely opaque fashion. What the intent to shift blame and focus for the Queensland proceedings on to the architects may amount to is something which requires clarification, as it seems to me.

28 Up to this point in time I have dealt only with the first of the paragraphs in the second Trade Practices Act claim. In that regard it is unarguable that it is entirely inappropriate to seek to plead that particular representations “arise from” a summons, or an amended summons. What do the words "arise from" in that set of particulars mean? It does not, it seems to me, mean that the attempt to expand the particulars has succeeded in overcoming that difficulty.

29 Having said that, I return to the first of the Trade Practices Act claims. In the form in which that bracket of claims was propounded in the amended cross-claim filed on 7 May 2002 there were many, many defects, as it seems to me. Commencing with the particulars, they read:

“The said representations arise from the first and/or the second cross-defendant's conduct in and for the purposes of the management of the Queensland proceedings and from communications with National Australia Trustees Ltd particulars of which will be provided.”

30 Amongst the many problems with this form of providing those then current particulars was the use of the word "arise". Representations do not arise. In a misleading and deceptive conduct case representations must be pleaded properly and conventionally. Those representations are pleaded as constituting conduct of the type which s52 of the Trade Practices Act deals with.

31 That form of particulars, also in terms of use of the words, "the defendants' conduct in and for the purposes of the management of the Queensland proceedings", also suffers as having a tendency to cause prejudice, embarrassment or delay in the proceedings. What, it may be asked, is intended to be referred to by use of the words "the second cross-defendant's conduct in the proceedings"? And what was the second cross-defendant's relevant impugned conducted for the purposes of the management of the Queensland proceedings? And what is management of proceedings?

32 Here, as the plaintiffs point out in their written submissions, there appear to be two types of conduct the subject of the allegation, namely conduct in the proceedings and unspecified conduct for the purposes of management in the proceedings, which may apparently include conduct "in" the proceedings.

33 The form of amended cross-claim filed on 7 May 2002 in para 16 suffered from the defect that the paragraph did not, and the particulars as it seems to me did not identify, to whom the representations were made, in what context, what representations were implied and generally failed with the precision necessary in pleadings in the Supreme Court, to identify carefully that which the entity required to plead to the pleading needed to know.

34 When one next turns to the very expanded set of particulars, now to be found in MFI R3, one finds several pages, in a number of places, copy pasted paragraph to paragraph, of sundry allegations. Included in those paragraphs are not only now particulars of the entities to whom the representations are said to have been made, but also detail of the extent to which the representations are said to have been continuing representations.

35 One problem to which reference was made during the course of address is to be found in the particulars to para 16 (c) where on page 8 of MFI R3 under para (v) one finds:

“Insofar as the representation was implied it was constituted by conduct being silence as to the true situation concerning the Story Steel matters as well as by the tender of a deed for execution (which deed provided for action against the architects) in December 1997. The representation was a continuing representation.”

36 The words "silence as to the true situation concerning the Story Steel matters" require to be clarified and amplified. That which is being pleaded as conduct by silence in terms of a failure to communicate some particular factual matter requires to be, it seems to me, very clearly telegraphed indeed. [Following delivery of the ex tempore Judgment Mr Street adverted to this paragraph – see below]

37 Turning next to the pleading in para 19, part of the first misleading and deceptive conduct pleading, that is a claim relying upon s51A of the Trade Practices Act. Here the pleader pleads that:

“The first and/or second cross-defendant had no, or no reasonable grounds for the said future matter within the meaning of s51A of the Trade Practices Act 1974.”

38 The pleading did not, as is clear, identify what the said "future matter" was. During the course of address Mr Street has made plain, as I have understood him, that the defendant is content to stand upon an allegation that the only said future matter referred to in para 19 is to be gleaned from, and it is to be confined to, what was put in para 16 (d).

39 Whilst that may be the case, that does require to be pleaded, and in any event I continue to have a real difficulty with the wording of para 16 (d). It seems to me that whilst alleged representations that the architects would be held liable for any loss or damage suffered by the first and/or second cross-defendant by reason of the fact of or the claim in the Queensland proceedings, as a matter of English may be understood, it is appropriate for the representation in terms of a pleading to be expanded.

40 In what fashion, it may be asked, was it represented that the architects would be held liable for any loss or damage suffered by reason of the claim in the Queensland proceedings, as opposed to the fact of the Queensland proceedings? Whilst I certainly accept that this is in the scheme of the current pleading an extremely minor issue, it does strike me as an issue, which does require to be addressed.

41 I turn then to para 20 of the amended cross-claim, where the pleading was that the conduct of the cross-defendants occurred in trade or commerce. That paragraph is not amplified in any fashion in the form of further amended cross-claim, MFI R3, in a context in which such a close question arises as to whether or not the conduct sought to be impugned could properly be said to have occurred in trade or commerce within the proper construction of the Trade Practices Act. It seems to me critical that the pleader give proper particulars of what is intended to be meant by use of the words "occurred in trade or commerce" and in the context of this pleading, a failure to do that by particulars or otherwise is, it seems to me, embarrassing in the extreme.

42 It will therefore be necessary for very special care to be taken by the pleader to identify just what is the conduct said to have occurred in trade or commerce and just what it is that constitutes the nexus between the relevant conduct and the trade or commerce fundamental requirements before one is entitled to plead pursuant to the Trade Practices Act a s52 claim.

43 The allegation in para 21 that the cross-claimant had suffered loss and damage within the meaning of s82 has now been amplified to a considerable extent in MFI R3. However, the amplification in that sentence continues to leave very much to the consternation of the entity obliged to plead to it. What is it that is referred to as:

“The cross-claimant acting upon representations by undertaking Merrylands work during 1986 for which it was not paid"?

“The cross-claimant acted upon the representations in foregoing opportunities in the period 1995 to 1997 to market their businesses and services to other development organisations."?

44 In short, it seems to me that as a matter of following what it is that the causation and damage paragraph is intended to refer to, special attention should be given to that section of the pleading.

45 Two matters then arise.

46 The first concerns the precise directions which should be given in relation to the now necessity for the third defendant to replead paras 16 to 25 of the amended cross-claim.

47 It seems to me that the appropriate course is to direct, in a moment, that that take place by 11am, 29 August and for the Court to grant leave to the third defendant to file a notice of motion seeking to amend paras 16 to 25 of the amended cross-claim with an entirely new set of paragraphs, covering the so called first and second misleading deceptive conduct cases. That motion can be returnable on 30 August and will be the subject then, of any claim by the plaintiffs, to re-agitate the motion which has been before the Court today.

48 The second matter concerns the question of costs of the motion up to this point in time. Mr Street submits that the appropriate course is for either the costs to be reserved or costs to be the costs in the cross-appeal. Mr Grieve submits the appropriate order is for the third defendant to pay the plaintiffs' costs of the motion on an indemnity basis.

49 The difficulties which have been encountered and in the course of which the parties have ultimately litigated today the matters the subject of the ex tempore judgment, have arisen against a background in which certain directions were given. On 12 July there were directions for written submissions to be furnished. The third defendant's submissions were to be furnished to their opponent by 19 July and the plaintiffs were to respond by 26 July. In fact in the events which happened, the third defendant's submissions were provided on and not before 31 July, which I accept led to the listing of 2 August requiring to go over by reference to the extent of the additional materials which the third defendant sought to mobilise.

50 Notwithstanding the sundry requests for particulars and responses to them and notwithstanding the fact that the plaintiffs as cross-defendants have, as Mr Street rightly pointed out, in fact filed a defence, in my view the matter which was litigated today has taken the third defendant perilously close, indeed within a hair's whisk, of being subject to an order that paras 16 to 25 be struck out.

51 The essence, substance and intent of the ex tempore judgment was the proposition that the subject paragraphs were, as I indicated, embarrassing and to my mind, clearly verged on being vexatious. The just, quick and cheap overriding purpose rule, now the first of the critical Supreme Court Rules, has many arms to it and one of those is being mobilised today in the form of the Court taking, as I would understand it, the pragmatic approach that rather than simply strike out the paragraphs, a convenient course is to permit the paragraphs to be repleaded and it is solely by reference to the state of the matter in the list that this course is being taken.

52 In those circumstances and notwithstanding that those orders are not being made today, but are being held over pending closer attention to the form of repleading which the third defendant produces, it is my view that this is a circumstance in which it is appropriate to grant the plaintiffs their costs of the notice of motion to a certain extent but not in its entirety on an indemnity basis. I say to a certain extent, because it is true that the plaintiffs did seek, at least on one limb, summary judgment, and it is also true that in some respects the third defendant has managed to salvage aspects of its position. One example being that the Court is currently not prepared, at least on existing pleadings, to launch into a final and concluded expression of view as to what is and is not, in this very unusual context, a matter arising in trade and commerce.

53 That may be the subject of some further submissions on 30 August, but I, speaking as of this moment, and although I have carefully read and tried to understand the plaintiffs written submissions and reliance upon authority, I should have thought that it is probable and probably likely, that the complex area of disentangling that which may have been part of the litigation from the third defendant's final collateral material, has put paid to the notion that as of right, and by reference to whether or not the matter amounts to conduct in trade and commerce, it is likely to be disposed of at an interlocutory level.

54 For those reasons it seems to me that the appropriate order is to order that the third defendant pay 80 per cent of the plaintiffs' costs of the notice of motion on an indemnity basis.

55 The orders of the Court are as follows:

1. The 3rd defendant is ordered to pay 80% of the plaintiffs’ costs of the Notice of Motion of 28 June 2002 on an indemnity basis.

(a) the existing paragraphs 16 - 25 of the amended cross claim which was filed on 7 May 2002 and

(b) the proposed further amended cross claim MFI R3

3. That notice of motion is to be filed and served on or before 11:00am on 29 August 2002 and made returnable on 30 August 2002 for hearing.

56 The proceedings are then in a state such that hopefully the final form of the now paras 16 to 25 will be capable of being properly adjudicated upon consensually or following contest on 30 August.

57 In the course of the costs argument Mr Street drew the Court's attention to the definition of "the Story Steel matters" now appearing in MFI R3 on page 6 in para (i) A through to G. Whilst he correctly points out that there was an attempt to properly describe the so called Story Steel matters, and I accept that that is the case, to my mind there are still a number of defects sitting within that subpara (i) and that attempt to characterise a number of particular matters as the Story Steel matters.

58 References to secret commission are references to matters of high wrong doing which require particular particularisation in the Court. References to unmeritorious nature of variation claims further, it seems to me, require some specification. References to the failure by Story Steel to return a priced bill of quantities raise questions of a temporal line requiring precision. Reference to failure by the first cross-defendant to insist on the return of the priced bill of quantities prior dealing with various claims by Story Steel suggests some form of obligation in that regard which, again if this is pleaded as a representation, requires, it seems to me, to be clarified.

59 In short, whilst Mr Street has certainly corrected the Court in terms of the earlier misstatement that the Story Steel matters had not been defined, I remain of the firm view that, as with the other attempts to particularise representations, that matter requires considerable further attention.

60 The bottom line, at the end of the day is that as Scott L J said in Bruce v Odhams Press Ltd (1936) 1 KB 697 at 712:

“The function of 'particulars'... is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim-gaps which ought to have been filled by appropriate statements of the various material fact which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading,

imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.

Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.”

61 In my view the proper function of pleadings is critical in terms of the proper conduct of the litigation. Here the difficulties which the ex tempore judgment exposed arise from a general lack of close attention to

A. what the elements to be established under s52 of the Trade Practices Act require to be pleaded; and

62 To my mind that has simply not occurred up to this point in time and the existing pleading, to the extent it was subject of the attack by the notice of motion, represents a patchwork quilt of quite obviously a number of attempts to get it right, which regrettably have not yet succeeded.

I certify that paragraphs 1 -62
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on Friday 9 August 2002
ex tempore and revised 29 August 2002

___________________
Susan Piggott
Associate

29 August 2002

Last Modified: 09/10/2002

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Citations

Stockland (Constructors) Pty Ltd v Darryl I Coombs Pty Ltd and 2 Ors [2002] NSWSC 721

Cases Citing This Decision

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Statutory Material Cited

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Law Institute of Victoria & Ors v Little [1989] HCATrans 239

CITATION:	Stockland (Constructors) Pty Ltd & Anor v Darryl I Coombs Pty Ltd & 2 Ors [2002] NSWSC 721
FILE NUMBER(S):	SC 55046/99
HEARING DATE(S):	9/08/2002
JUDGMENT DATE:	9 August 2002
PARTIES :	Stockland (Constructors) Pty Ltd (First Plaintiff) Stockland (Properties) Pty Ltd (Second Plaintiff) Darryl I Coombs Pty Ltd (First Defendant) Philip J Flook Pty Limited (Second Defendant) Retail Design Group (International) Pty Limited (Third Defendant)
JUDGMENT OF:	Einstein J

COUNSEL :	DE Grieve QC, PL Dodson (Plaintiffs) AW Street SC, Mr R Newell (3rd Defendant)
SOLICITORS:	Cohen & Krass (Plaintiffs) Bull, Son & Schmidt (3rd Defendant)
CATCHWORDS:	Pleadings - Amendment
LEGISLATION CITED:	Fair Trading Act 1985 Supreme Court Rules Trade Practices Act 1974
CASES CITED:	Bruce v Odhams Press Ltd (1936) 1 KB 697 Little v Law Institute of Victoria (1990) VR 257
DECISION:	Leave to replead particular paragraphs