Superline Construction Pty Ltd v Kopejtka
[2007] WADC 95
•14 JUNE 2007
SUPERLINE CONSTRUCTION PTY LTD -v- KOPEJTKA & ANOR [2007] WADC 95
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 95 | |
| Case No: | CIV:2774/2002 | 3 APRIL 2007 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 14/06/07 | |
| PERTH | |||
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | SUPERLINE CONSTRUCTION PTY LTD PAUL KOPEJTKA KAREN KOPETJKA |
Catchwords: | Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia- Application for leave to amend defence and counterclaim Defendant seeks to withdraw admissions |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SUPERLINE CONSTRUCTION PTY LTD -v- KOPEJTKA & ANOR [2007] WADC 95 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 3 APRIL 2007 DELIVERED : 14 JUNE 2007 FILE NO/S : CIV 2774 of 2002 BETWEEN : SUPERLINE CONSTRUCTION PTY LTD
- Plaintiff
AND
PAUL KOPEJTKA
KAREN KOPETJKA
Defendants
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia- Application for leave to amend defence and counterclaim - Defendant seeks to withdraw admissions
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr S Paonni
Defendants : Mr M Holler
Solicitors:
Plaintiff : Vincent Partners
Defendants : Wojtowicz Kelly
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The defendants carry the onus of persuasion on the hearing of the application to amend their defence and counterclaim. In 2006 the defendants failed to obtain leave when they made a similar application.
2 In the application before me the focus of the defendants' attention was on admissions in the current pleadings sought to be withdrawn. They isolated those admissions and the impact of the proposed amendments in a document entitled "Defendants withdrawal of prior admissions".
3 The first is the admission pleaded in response to par 4(e) of the plaintiff's statement of claim. It is as follows:-
"In the event that owners required variations to the works the subject of the building contract, then the builder is entitled to charge the reasonable costs of the requested variations together with a builder's margin of 10 per cent."
4 The defence is as follows:
"The defendants admit paragraph 4 of the plaintiff's statement of claim, save to state:
2.1. the parties to the building contract varied the contract so that the margin of 10 per cent would not apply to one or more variations; and … ."
5 The defendants seek to introduce the following pleading:
"4. In relation to paragraph 4 of the statement of claim the defendants:
…
4.4. deny paragraph 4(e) and say in relation to variations to the Works, the Building Contract provided as follows:
(a) By clause 10(a) of Form 8A, for any variation to the Works agreed to by the plaintiff to be carried out as if it were part of the works under the Building Contract.
(b) By clause 10(c) of Form 8A, for the price of a variation, unless agreed in writing, to be calculated as follows:-
- (i) if the amount is additional to the Original Contract Price, the reasonable price for the variation including an additional percentage of 10% being a builder's margin, such amount being added to the Original Contract Price and unless previously paid, being added to the next progress payment due after execution of such work; and
(ii) if the amount will decrease the Original Contract Price, the reasonable price for the variation, not including any amount for a builder's margin, such decrease being deducted from the final progress payment to be made under the Building Contract."
6 To put the proposed change in context, by par 9 of the defence the defendants deny the plaintiff's entitlement to the gross sum for the margin pleaded at par 12 of the statement of claim. Under the proposed pleading it would remain for the plaintiff to establish each variation and its cost. It would remain the task of the defendants to establish that any such variation would not carry a margin.
7 Paragraph 4 of the proposed pleading would have two impacts. The first, that it would provide context for the claim maintained by the defendants that the variations the subject of par 5 of the statement of claim would not carry the margin. The second, in its bearing on 2 variations specified in the particulars at par 9.2 of the proposed pleading expressed as deletions from the works. According to par 9.3(b) those variations would generate reductions in the contract price and would not generate the margin.
8 In my opinion the difficulty with the proposition advanced by the defendants that on the pleadings as they stand those variations would allow for recovery of the margin is that it would be for the plaintiff to identify and establish each variation. In order to engage the mechanism provided by par 4(e) the plaintiff would need to establish that any variation carried a cost. The datum for assessment of that prospect could only be the contract price.
9 That leaves the prospect that if the defendants do not plead in terms of par 4(b) (ii) then the contract price would not be reduced by the value
(Page 5)
- of those variations. In my opinion it is appropriate to record at some point that the benefit that would accrue to the defendants in the form of a reduction in the contract price for both variations is $1320.00. The figure is relatively insignificant in a context where the contract price is $609,210.00, the plaintiff's claim for variations of $98335.93 and the defendants allege their value at $68,210.70. That is not to suggest that as a matter of principle the issue before me would turn on quantum, but the figures may provide some insight into why the particular variations have not been features of the defendants' pleading to date. The response to par 4(e) of the statement of claim is part of the original defence filed; it survived one amendment prior to the plaintiff's provision of particulars of variations and two subsequent amendments. The defendants sought to make the same amendment as now proposed in mid 2006; by that time their response had stood for 3 ½ years.
10 The evidence in support of the application before me is provided at pars 42 to 49 of the first defendant's affidavit as follows:
"42. The admission was made on advice we received from our previous solicitors that paragraph 4(e) of the statement of claim properly pleaded what the building contract stated in relation to variations to the works.
45. In the New Minute at paragraph 4.4, we seek to withdraw the admission made to paragraph 4(e) of the statement of claim by denying paragraph 4(e) and then pleading what we say the building contract actually provides in relation to variations to the works.
…
47. The basis for my wife and I now wanting to deny paragraph 4(e) of the statement of claim is that Wojtowicz Kelly has advised us that paragraph 4(e) of the statement of claim does not properly reflect what the building contract provides about calculating the cost of a variation to the works. For example, paragraph 4(e) of the statement of claim fails to mention that the cost of a variation is only calculated by reference to reasonable cost if the cost of the variation is not agreed in writing. Furthermore, paragraph 4(e) of the statement of claim does not mention what happens when there is a variation
- that results in a decrease of the total contract price, or even how the cost of the variation is to be paid by us.
- 48. The original admission was inadvertently made because our previous solicitors failed to properly consider the conditions of the building contract in relation to the variations to the works.
49. The calculation of the cost of variations to the Works and how those costs are to be paid is an issue in dispute. Therefore, it is essential that the provisions in the building contract dealing with the cost of variations are accurately pleaded."
11 At the hearing I was not alerted to the significance of the proposed pleading on the question of how the costs of variations would be paid. I would imagine that in the circumstances that now obtain its only impact would be at the level of interest calculations. There does not appear to be any consequential pleading to the end of establishing a contest to that end. Otherwise the evidence would seem to be directed more to establishing that there would be some virtue in pleading contractual provisions rather than their effect. In my opinion it is significant that the evidence does not disclose whether the pleader of the defence had been informed of the particular variations and the instructions provided to him. I am loath to draw inferences in circumstances where the locus of the onus is clear and there is no basis to consider that there would have been any difficulty in attending to its discharge. That observation may reveal what may be considered to be an oversight but for the fact that the prior application seeking the same amendment failed for want of evidence.
12 I have already recorded that the other feature of the proposed pleading is that it would provide a context in which the defendants could seek to persuade the court that the variation described at par 5 of the statement of claim would not carry the margin. In my opinion if the defendants satisfied the court that the parties had agreed that the particular variations would not carry the margin it would be of no significance that the contract anticipated that prospect. Conversely the fact that it did would have no impact on the prospect that the parties had agreed that the variations would not carry the margin.
13 The second, third and fourth proposed withdrawals of admission relate to the allegations at pars 9, 10 and 11 of the plaintiff's statement of claim as follows:-
(Page 7)
- "9. The builder issued a claim for payment of a progress amount and the owners late paid that progress claim.
10. The builder issued a further claim for payment of a progress amount and the owners late paid the further progress claim.
11. In (sic) the owners were late in paying the first and the second progress claims of the builder and the builder is entitled to interest as pleaded herein at the rate of 15 % on each of those sums in the sum of $1,052.13 in the case of the first progress claim and $2068.93 in the case of the second progress claim."
14 The defendants' pleading was as follows:-
"7. In relation to paragraphs 9, 10 and 11 the defendants state that the late payments referred to were acknowledged as the fault of the defendants bank and that the builder was aware of this having been contacted directly by the bank who undertook to pay any interest incurred as a result of their default."
15 It was struck out on 6 May 2004 as the plaintiff was entitled to a clear response to its allegations. The defendants maintain that the denial of general application expressed at par 21 applies. In my opinion it would be inappropriate to ignore the fact that the context in which par 21 was pleaded was one in which par 7 operated as something other than a denial. In my opinion on both an assessment of the pleadings and consideration of the period of time that has elapsed since par 7 was struck out it is appropriate to consider that pars 9, 10 and 11 of the statement of claim are admitted. I note that the defendants have expressed a similar conclusion in the document entitled "Defendants' withdrawals of prior admissions".
16 They propose to plead as follows:
"12. The defendants deny paragraph 9 of the statement of claim and say that:
12.1. on or about 10 October 2001, Mr Fisher received, as agent for the defendants a tax invoice in the same of $60,950.00 from the plaintiff, being for payment of Progress Payment 1;
- 12.2. the defendants treated the tax invoice as a Progress Payment Notice;
12.3. by reason of the matters pleaded in paragraphs 4.3 and 4.5(i), Progress Payment 1 was required to be paid by 24 November 2001;
12.4. on or about 13 November 2001, ANZ sent by post to the plaintiff a cheque in the sum of $60,950.00, being for payment of Progress Payment 1, which in the ordinary course of mail, would have been received by the plaintiff on or about 14 November 2001;
12.5. by reason of the matters pleaded in paragraph 12.4, the defendants were 16 days late in paying Progress Payment 1, and
12.6. by reason of the matters pleaded in paragraphs 4.3 and 4.5(i) interest in the sum of $400.64 accrued in respect of the late payment of Progress Payment 1.
- 13. The defendants deny paragraph 10 of the statement of claim and say that:
13.1. on or about 23 November 2001, Mr Fisher received, as agent for the defendants a tax invoice in the same of $91,500.00 from the plaintiff, being for payment of Progress Payment 2;
13.2. the defendants treated the tax invoice as a Progress Payment Notice;
13.3. by reason of the matters pleaded in paragraphs 4.3 and 4.5(i), Progress Payment 2 was required to be paid by 7 December 2001;
13.4. on or about 29 November 2001, ANZ sent by post to the plaintiff a cheque in the sum of $91,500.00, being for payment of Progress Payment 2, which in the ordinary course of mail, would have been received by the plaintiff on or about
- 30 November 2001 and within the time specified in the Building Contract.
- 14. The defendants deny paragraph 11 of the statement of claim and say that by reason of the matters pleaded in paragraphs 12 and 13, interest in the sum of $400.64 in total accrued under the Building Contract in respect of the late payment of Progress Payment 1."
17 By par 4.3 the defendants propose to admit pars 4(c) and 4(d) of the statement of claim. Paragraph 4(d) is as follows:
"If for any reason any progress payment or the final progress payment is not made within 10 days of certification by the builder that the works the subject of the progress payment claim or final payment claim has been completed, the owners must pay the builder interest at the rate of 15% per annum from the date of the progress payment or final payment was due to the date the progress claim or final payment claim was paid."
18 Par 4.5(i) of the proposed pleading is as follows:
"4.5 … the Building Contract provided, inter alia:
(a) …
…
(i) By clause 20 of Form 8A, for the computation of time under the Building Contract to take no account of Saturday, Sunday or any other day properly gazetted or proclaimed to be a public holiday."
20 At par 73 and following the first defendant gives the following evidence:
"73. In paragraphs 12, 13 and 14 of the New Minute, my wife and I deny paragraphs 9, 10 and 11 of the statement of claim and say that:
- 73.1. in respect of progress payment one, the plaintiff is entitled to interest of $400.64;
73.2. in respect of progress payment two, the plaintiff is not entitled to any interest.
- 74. The denial arises firstly from new information that my wife and I have recently received from ANZ (our bank) in relation to the date of payments made to the plaintiff.
75. Annexed hereto and marked "PK-8" is a true copy of an email dated 1 June 2006 from ANZ to my wife containing a schedule of payments made during the course of the works.
76. Based on the information from ANZ, I verily believe that:
76.1. the cheque for progress payment one was issued by post to the plaintiff on 13 November 2001, which would have been received by the plaintiff in the ordinary course of mail on 14 November 2001 – which is different to the date that the plaintiff alleges the payment was received (29 November 2001);
76.2. the cheque for progress payment two was issue (sic) by post to the plaintiff on 29 November 2001, which would have been received by the plaintiff in the ordinary course of mail on 30 November 2001 – which is different to the date the plaintiff alleges the payment was received (28 January 2002).
77. The denial secondly arises from advice we have received from Wojtowicz Kelly that the plaintiff's calculation of time by which the progress payments had to be received is wrong. Time under the building contract is calculated with no account of weekends or public holidays (see clause 20 of the building contract). Accordingly progress payment one had to be received by the plaintiff by 24 October 2001 (not 20 October 2001), and progress payment two had to be received by 7 December 2001 (not 3 December 2001).
(Page 11)
- 78. If my wife and I are not able to deny paragraphs 9, 10 and 11 of the statement of claim and to plead the correct calculation of interest in accordance with the facts, we will not be able to contend that the outstanding balance claimed by the plaintiff in par 18 of the statement of claim is too high.
79. The effect of the denial will be to put the plaintiff to proof on when it received payment for progress payment one and progress payment two."
21 The significant feature of the defendants' case is that there is no evidence that relates to the pleading that was struck. I accept that but for the fact that it conveyed something other than a denial and expressed an undertaking by the defendants' bank to pay interest that had arisen from its default any former pleading would best be ignored. I would draw from the terms by which that undertaking is expressed that it had been founded upon a commitment by the bank. I take it from the evidence at par 79 that the intention of the defendants is to put the plaintiff to the proof of its case. Before requiring the plaintiff to do so it is appropriate for the court to know the position of the bank. It is not clear that its undertaking depended upon proof of the plaintiff's claim in this action. If that had been the case then it would not have accorded with the former pleading the striking of which had been resisted by the defendants. Fundamentally the evidence missing from the current application is the relevant instruction of the defendants to the pleader.
22 The last admission that the defendants seek to withdraw is that given in response to par 14 of the statement of claim. It is as follows:-
"14. The component in the Building Contract for provisional cost and provisional sums was $130,981.40. Of this reserve the sum of $56,312.44 was utilised and the balance was not, leaving an excess reserve of $74,668.96."
23 The impact of par 14 is disclosed in the first of 2 pars 20 of the statement of claim where the plaintiff credits the excess reserve to the defendants.
24 The defendants plead:
"12. Save to state that the amount stated in paragraph 14 of the Plaintiff's Statement of Claim shows a provisional sum of
- $130,981.40 (GST Incl.) this amount should state $134,699.40 (GST Incl.) the defendants admit the contents."
25 To the extent that par 12 of the defence operates as an admission it is of the allocation of part of the contract price to a 'provisional cost and provisional sums' component and the utilisation of $56,312.44 of that allocation. My assessment of the impact of par 12 of the defence is that the defendants would realise a credit of $78,386.96 rather than the $74,668.96 pleaded by the plaintiff; a difference of $3718.00. I recognise that assessment does not accord with the first named defendant's evidence at par 52.
"In paragraph 12 of our current defence and counterclaim, my wife and I admit paragraph 14 of the statement of claim, save to state that the provisional cost and provisional sum amount should state $134,699.40 (inclusive of GST). Accordingly, we admit that the sum of $56,312.44 was used, leaving a balance of $74,668.96.
26 The defendants now propose to deny par 14.
27 The first defendants' relevant evidence is as follows:-
53. My wife and I made the admission based on advice we had received from our previous solicitors that the figures referred to in paragraph 14 of the statement of claim were correct (except for the different amount in relation to the provisional cost and provisional sum total).
54. At the time of making the admission, my wife and I assumed that our previous solicitors had properly reviewed the building contract and the construction documents, as well as all other relevant documents. At the time, we had no reason to doubt that that was not the case, or that their interpretation of the facts was wrong.
55. In the New Minute at paragraph 26, we now seek to withdraw our previous admission by denying paragraph 14 of the statement of claim because we have received advice from Wojtowicz Kelly that:
- 55.1. the building contract does not include provisional sums and provisional costs totalling $134,699.40 (inclusive of GST); and
55.2. we did not use $56,312.44 of the amount allocated for 'provisional cost and provisional sums' leaving an excess reserve of $74,668.96.
- 56. The advice we have received from Wojtowicz Kelly, is that:
56.1. The building contract price of $609,517 was inclusive of a 'list of allowances and prime cost items' – specifically provided for in the building contract and the construction documents.
56.2. The list of allowances and prime cost items total $132,059 – this figure being calculated by reference to the building contract and the construction documents.
56.3. The building contract price of $609,517 could rise or fall depending on the final cost of the work specified in the list of allowances and prime cost items.
56.4. During the course of the building works, my wife and I agreed with the plaintiff on two occasions to vary amounts allocated in the building contract to prime cost items.
56.5. The first agreement is referred to in the New Minute as the '2 April 2002 Agreement' and is pleaded at pars 18.5-18.7. The second Agreement is referred to in the New Minute as the 'July 2002 Agreement' and is pleaded at pars 20.9-20.10. Annexed hereto …
56.6. By virtue of the agreements, the amount allocated in the building contract to the prime cost item for:
(a) 'cabinets' was varied from $26,400 to $6,400; and
- (b) 'ceramic tiling' was reduced from $18,700 to $2,700.
- 56.7. As the building contract price of $609,517 was inclusive of the list of allowances and prime cost items totalling $132,059 – it follows that a reduction to the prime cost items of $36,000, also resulted in a reduction of the building contract price by $36,000.
56.8. The building contract price (following the agreements) was thereby reduced to $573,517, inclusive of a list of allowances and prime cost items totalling $96,059.
56.9. Of the $96,059 allocated for the list of allowances and prime cost items, only $54,528.91 was used by the plaintiff, leaving a balance of $41,530.09.
- 57. The final cost of each list of allowances and prime cost items comes from an analysis by Wojtowicz Kelly of various invoices and receipts relating to the works. Some prime cost allowances ended up being more than what was provided for in the building contract. Others ended up being less.
58. Due to the large number of invoices and receipts, I have not annexed to this affidavit the evidence supporting the final figures for each prime cost item. However, I note that all of the receipts and invoices have been discovered and the plaintiff's solicitors have carried out an inspection of those documents on several occasions.
59. In pars 26.1-26.20 of the New Minute, we deny par 14 of the statement of claim and then plead in detail:
59.1. each of the prime cost allowances that we say were included in the building contract cost;
59.2. the amount originally allocated for each prime cost allowance in the building contract;
59.3. the amount allocated for a prime cost allowance following the agreements made with the plaintiff;
- 59.4. what we say the final cost of each prime cost item was and how that final cost item affects the contract price.
- 60. The amounts claimed by the plaintiff in par 14 are wrong and not in accordance with the facts. Based on the errors made by our previous solicitors, my wife and I wrongly admitted par 14 in the statement of claim.
61. If my wife and I are not given leave to withdraw our previous admission of par 14 of the statement of claim and plead the correct calculations of the amounts in accordance with the facts, we will not be able to contend that the outstanding balance claimed by the plaintiff in par 18 of the statement of claim is too high.
62. The effect of the withdrawal of admission will be to put the plaintiff to proof on how it calculated the amounts referred to in par 14 of the statement of claim.
63. In the plaintiff's answers to the defendants' request for further and better particulars of statement of claim filed 5 June 2003, the plaintiff states at answer 4 how it calculated the amounts referred to in par 14 of the statement of claim. Accordingly, the plaintiff has already undertaken the work necessary to prove its calculations and will not suffer prejudice by the withdrawal of the admission."
28 At par 4.5 of the defence the defendants propose to plead the contractual provisions that establish what I take to have been the basis of par 14 of the statement of claim. Although the defendants do not now propose to plead the value of the provisional sum as they did at par 12 of the defence, according to par 56.2 of the first named defendant's evidence, that figure would be $132,059.00. For the purpose of analysis, if that figure had been adopted into par 12 of the defence then rather than generating $3718.00 of additional credit of in favour of the defendants it would only generate $1077.60 of additional credit.
29 According par 27.4 of the proposed pleading, the unutilised portion of the amount allocated to the provisional sum component would generate a credit of $41,530.09.
30 At par 18.6 the defendants propose to plead as follows:
(Page 16)
- "The 2 April 2002 agreement contained, inter alia, the following express terms:
(a) …; and
(b) the prime cost allowance in the building contract for 'cabinets' be reduced by $10,000."
31 At par 20.10 they intend to plead as follows:
"The following terms are implied in the July 2002 agreement: -
(a) the prime cost allowance for 'ceramic tiling' in the building contract be reduced by $16,000, being the total of payments made by the defendants to Odin Ceramics for the supply of wall and floor tiling for the works;
(b) the prime cost allowance for 'cabinets' in the building contract be reduced by $10,000 being the amount of the further partial reimbursement to the defendants for their payment of $24,224 to Signature Designs; and
(c) the original contract price be reduced by:
(i) $26,000 being the total of the reduction to the 'ceramic tiling' prime cost allowing and the reduction to the 'cabinets' prime cost allowance pleaded in paragraphs 20.10(a) and 20.10(b) above; and
(ii) $6000 being the amount paid by the defendants direct to Premier Tiling for the laying of ceramic floor and wall tiling for the works;"
33 Returning to the plaintiff's case, along with the credit of $74,668.96 expressed at par 14 it provides for two further credits at pars 13 and 15, for $12,100.00 and $2,344.00 respectively. I take those credits to have been admitted by par 10 of the defence save for what may have been a failure of the plaintiff to account in relation to the latter. The dimension of any accounting difference would be represented by an allocation for internal doors in the amount of $1144.00. Whether or not that difference
(Page 17)
- is ignored, the credits proposed by the plaintiff in the statement of claim exceed those that the defendants would now seek to establish.
34 I have no difficulty in understanding that a party may seek to raise features of the history of the relationship between litigants that would have a bearing upon the result of litigation. What the evidence does not explain is how it was that the defendants came to plead their case as they did. Perhaps it is implicit that they left the pleading to their solicitor. Although I have demonstrated that in the context of the pleadings, the effect of the agreements proposed to be pleaded at pars 18.6 and 20.10 are ultimately of little consequence in the absence of evidence it ought to be difficult to accept that the defendants had failed to inform their solicitors of those agreements. In my opinion there is a significant omission in the case in support of the amendment on the issue of how it was that the defence did not express the alleged agreed credits of $10,000.00, $26,000.00 and $6000.00. In the absence of evidence I ought to have difficulty in inferring that those agreements had been overlooked by the defendants. The related issue is why the pleading has been unamended for so long.
35 A significant feature of the proposed amended pleading that would follow upon the withdrawal of admission is that the defendants' would seek to introduce what in my estimation would be 5 pages of text by which they detail the impact of price variations for discrete parts of the works in order to demonstrate the extent to which the allocation of price to prime cost items had been utilised. An illustration of 1 of the 20 sub-pars of par 26 is as follows:
"26.1. As particularised in par 4.5(d), the Original Contract Price included a total prime cost allowance for 'Headworks' of $6,000 (being $6,600 inclusive of GST). The final cost for 'Headworks' under the Building Contract was $6,395 inclusive of GST, as admitted by the plaintiff in particulars to par 7 of the statement of claim. By reason of the Rise and Fall Clause, the Original Contract Price was reduced by $205."
36 In my opinion, in light of what I have observed in relation to the credits provided and those now sought there is no good reason to so burden the pleadings.
37 Finally, the evidence in support of the proposed pleading that I have canvassed is provided by par 56. The introductory words of that
(Page 18)
- paragraph reveal that the balance of its content is not evidence. As for the balance of the first named defendant's evidence, the content of par 57 is no more sufficient than par 56. Paragraph 58 conveys a difficulty confronting the defendants in founding the application but it is no more than a submission. As was the case with the balance of the admissions sought to be withdrawn, the error expressed at par 60 is unfounded.
38 In my opinion I have canvassed sufficient of the proposed substituted pleading to justify the application to amend by substitution of the minute being refused. For the sake of completeness I will address those parts of the minute that do not engage the matters that I have canvassed to this point upon which I consider that the plaintiff had a valid objection.
39 At pars 5, 6 and 7 of the minute the defendants propose to plead facts that would establish that they appointed Fisher as their agent for the purpose of a contractual variation. It would be sufficient for the defendants to simply make the allegation. In the event that the allegation was denied they could then seek admissions in relation to aspects of the case by which the agency would be established. In my opinion it is inappropriate to burden the pleading of agency by asserting the name of Fisher' business; the date of his appointment; the manner of his appointment, including the terms of his engagement; and aspects of the scope of his express authority. I would add that the allegations are proposed to be put in a context where the plaintiff has already pleaded Fisher's authority to bind the defendants by the variation order and the defendants have admitted that fact.
40 At par 8.2 of the minute the defendants propose to plead that what they characterise as the variation agreement was partly oral and partly in writing. As the pleadings stand the defendants have admitted that the variation was recorded in writing on the variation order which was signed by the plaintiff. At par 8.4 the defendants seek to plead that the oral aspect of the agreement consisted of a telephone conversation between their agent and the plaintiff when it was expressly agreed that there would be no margin. There is no evidence in support of that proposed assertion.
41 At pars 11.1, 11.2, 12.1, 12.2, 13.1, 13.2, 15, 16 and 17 the defendants propose to plead issues that may bear upon the authority of Fisher; how he chose to conduct himself upon receipt of invoices from the plaintiff; and how their bankers responded to their direction. Ultimately the issue raised by the plaintiff is that payment was late and that it is entitled to interest. It is only necessary that the defendants plead the date
(Page 19)
- of payment for each invoice. There is no justification for them to burden the pleadings.
42 The same can be said in relation to the introductory words of par 18 by which the defendants simply allege that they treated an invoice issued by the plaintiff as a notice requiring payment issued under the terms of the building contract. At par 18.8 they seek to justify a payment by reference to other parts of the proposed pleading. The amount paid by the defendants has been pleaded by the plaintiff and admitted by the defendant. There is no reason to burden the pleading either by reference to the particular payment or to the defendants' justification for the particular amount. At that point the defendants seek to unnecessarily plead the involvement of their bankers.
43 Paragraph 19, the introductory words of par 20 and pars 22, 23, and 24 each express allegations along the same lines. If the defendants seek to plead that they made payment on a particular date they should simply plead that they did so.
44 At par 25 they seek to plead what has already been pleaded by the plaintiff and admitted.
0
0
1