Superline Construction Pty Ltd v Kopejtka - [2006] WADC 211

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SUPERLINE CONSTRUCTION PTY LTD -v- KOPEJTKA & ANOR [2006] WADC 211

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 13 SEPTEMBER, 25 OCTOBER & 20 NOVEMBER 2006

DELIVERED : 22 DECEMBER 2006

FILE NO/S: CIV 2774 of 2002

BETWEEN: SUPERLINE CONSTRUCTION PTY LTD
Plaintiff
AND
PAUL KOPEJTKA
KAREN KOPEJTKA
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to amend defence - Proposed substitute pleading - Impact on admissions

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff: Mr S P Paonni
Defendant: Mr R C Ioppolo and Mr M D Reid

Solicitors:

Plaintiff: Vincent Partners
Defendant: Wojtowicz Kelly

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The defendants' application is for leave to amend their defence by way of a substituted pleading. The application was foreshadowed on 15 May 2006 on the hearing of summons for directions issued by the court. The court then directed that any such document be filed and that unless within 14 days of service the plaintiff took issue with its content then it would stand as the pleading. I infer that the court considered that the lack of contest either precipitate the generation of a minute of consent orders or that the fact that the direction had been made would obviate the need for the defendants to obtain leave.
Be that as it may, the defendants did not attend to the task within the time specified and in any event the plaintiff has contested the proposed pleading.
The onus upon the defendants is to satisfy the court that it is appropriate to allow for the pleading of the defendants' case to be amended as proposed.
It is for a party to plead its case as it determines is appropriate and in the absence of a special case, the court would only intervene in the event that the proposed pleading infringed either the rules that relate to pleading or principles that apply to processes founded by pleadings. It is a fair assessment of the defendants' case in the application that there was no significant contest by the plaintiff as to the sufficiency of the proposed pleading and there can be little scope for doubt that it would accurately reflect the defendants' case. The only issue to be determined is the effect of the proposed pleading upon admissions previously made by the defendants.
The statement of claim was filed shortly after the date of the writ. The current proposal to amend the defence is the last of three processes of amendment to the defence and counterclaim. The defendants' current pleading is entitled Further Amended Defence and Counterclaim and is dated 31 July 2003. On the 6 May 2004 on the application of the plaintiff pars 7, 28 and 29 of that pleading were struck out. On 14 March 2005 on the same application the defendant was required to file further and better particulars of defence. In March 2006 the defendants appointed new solicitors.
In support of the application before me the defendants' solicitor filed an affidavit sworn 8 September 2006 which introduces the plaintiff's objections to the proposed pleading but otherwise says little in relation to the subject matter of the application. During the course of submissions the defendants' solicitor indicated that the motivation for the proposal was that the defendants considered that a fresh approach to the defendants pleading would assist with a clearer understanding of the issues between the parties and also obviate the need for the defendants to provide responses to the plaintiff's outstanding request for particulars.
Over a period of some time the defendants' solicitor took me through the defendants' case as revealed on the proposed pleading and I am satisfied that the proposed pleading accords with the defendants' solicitor's instructions and provides a detailed and clear exposition of their case. The significant issue raised by the plaintiff is that by the terms of the proposal the defendants seek to withdraw admissions. The point made by the plaintiff is significant as the plaintiff's pleading was filed on 27 November 2002 and the admissions made in the defence have stood since 28 January 2002.
By the statement of claim the plaintiff seeks to recover the balance of the cost of building works undertaken for each of the defendants. The plaintiff's pleading identifies the land of each of the defendants, the relevant building contract and the plans and specifications which it designates as construction documents. It expresses the contract sum and the manner in which that amount would be paid by reference to the progress of the works and are described as progress payments. The plaintiff alleges that pursuant to the contract late payment of a progress payment would attract interest and that any variations to the works would be the subject of a charge both for the builder's reasonable costs and a margin of 10 per cent. The plaintiff pleads variations the subject of either agreement or instruction. It expresses claims made under those variations. It then pleads discrete events of late payment and makes concessions in relation to work undertaken by third parties in lieu of the plaintiff. It concludes with an allegation of unlawful determination of the contract by the defendants and the plaintiff's loss and damage.
The defendants presently admit the plaintiff's claim to the point that the plaintiff has specified variations that arose other than in accordance with what the plaintiff describes as a written variation order dated 14 June 2001. Of the particulars of what are described as further variations the defendants admit all but the first 12 of 43. They admit late payment of two progress payments and the engagement of a ceramic tiler and a commercial cleaner. They admit the total amount paid to the plaintiff, what the plaintiff characterised as a reserve for provisional costs and provisional sums and the proportions of that reserve utilised. The defendants also admit that they terminated the contract.
What presently remains in dispute on the plaintiff's case are whether the first 12 items of what the plaintiff describes as further variations were indeed variations, whether the plaintiff is entitled to a margin on the works the subject of the first variation and whether the cost of 25 internal doors were to be deducted from the building contract. There are also some differences between the parties as to quantum. The first is as to the gross amount of the first variation, the value of the component of provisional costs and provisional sums in the building contract and the impact of the engagement by the defendants of the cabinet maker on the contractual arrangements between the parties. Along with that perimeter of dispute, the defendants dispute the plaintiff's claim that the impact of the engagement of trades by the defendants was such that the completion of the works themselves were delayed.
The proposed substituted pleading contains relatively few express admissions. That said, on my assessment of the allegations of material fact proposed to be made by the defendants up to the point of detailing with the plaintiff's "further variations", the only allegations not admitted are the entitlement to the margin on variations and that variations were made after the date of the building contract. Having recorded that much, the same issue is presented in relation to the total extra cost of the first variation. At the point of dealing with the "further variations" there is a significant departure from what was previously admitted by the defendants both as to the nature of the variations and their cost. They propose to admit that only the first progress payment was late and they dispute the quantum of the plaintiff's entitlement. From that point the significant changes to the defendants' case are that they no longer admit the amount paid to the ceramic tiler and contest the allegation of provisional cost and provisional sum components of the building contract that were allocated as having been utilised or not utilised by the plaintiff. Otherwise the defendants' case is consistent.
To the extent that by the proposed pleading the defendants seek to withdraw admissions there is no evidence in support of their case that it is appropriate that they be permitted to do so. The court is presented with no more than material upon which it could draw an inference that the defendants gave their solicitor's instructions to make admissions but have now changed those instructions.
It is a feature of the proposed substituted defence that the defendants put forward what amounts to admissions in the form of allegations of material fact. As I understand the submissions of the defendants, that is because they wish to present their case within a context of their own choosing. My observation is that the document is easy to read and comprehend as a document but as a pleading in response to a statement of claim it fails to expressly engage with that document as it ought. For want of a better description the defendants have effectively assumed the position of the plaintiff. One obvious impact of the defendants' proposal is that it would be a laborious process for the plaintiff to establish what it could portray as admissions at trial. When I stay laborious, not only would the plaintiff be required to conduct an analysis of the statement of claim and defence in order to demonstrate the admissions, but it would also need to canvas whether the allegations of material fact made by the defendant actually amounted to an admission.
I understand that the defendants may have been encouraged in their proposal to amend in the form that they seek to do by the fact that the Registrar made the particular order that accommodated them. In my opinion once it became apparent that the plaintiff objected to the form of amendment by way of substitution then it was appropriate for the defendants to resort to a form of amendment that would leave the admissions previously made in place. To the extent that any withdrawal of admission or new allegation of material fact was contested the defendants should have produced material upon which those withdrawals and allegations were justified.
It follows that the application ought to be refused.