Superline Enterprises Pty Ltd v Palassis Architects

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SUPERLINE ENTERPRISES PTY LTD -v- PALASSIS ARCHITECTS [2019] WASC 414

CORAM:   SMITH J

HEARD:   26 JUNE 2019

DELIVERED          :   15 NOVEMBER 2019

FILE NO/S:   CIV 2941 of 2015

BETWEEN:   SUPERLINE ENTERPRISES PTY LTD

Plaintiff

AND

PALASSIS ARCHITECTS

First Defendant

BCA CONSULTANTS PTY LTD

Second Defendant

P M WHITE & PARTNERS (AUST) PTY LTD

Third Defendant

AVONLANE PTY LTD

Fourth Defendant

CENTIGRADE MECHANICAL CONTRACTING PTY LTD

Fifth Defendant

OBERIX GROUP PTY LTD

Sixth Defendant

SAMSON PLUMBING & GAS PTY LTD

Seventh Defendant


Catchwords:

Procedure - Pleadings - Strike out application - Whether matters pleaded disclose reasonable cause of action - Whether matters pleaded may prejudice, embarrass or delay fair trial of the action - Where pleaded case pleaded at high level of generality - Where contractual dates and terms of contract not specifically pleaded

Evidence - Admissibility of evidence in determination of strike out application - Evidence admissible in strike out application brought under Rules of the Supreme Court 1971 (WA) O 20 r 19(1)

Procedure - Pleadings - Whether it is appropriate to strike out on grounds of a yet unpleaded limitation defence considered - In any event unable to assess when time runs for some progress payment claims dates upon which loss and damage occurred not pleaded

Legislation:

Australian Consumer Law, s 18
Limitation Act 2005 (WA), s 13(1)
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20 r 2, O 20 r 19(1)
Trade Practices Act 1974 (Cth), s 42, s 82

Result:

Application of first defendant to strike out [11], [12], [13], [19.3.1], [20.3.1], [21.3.1], [25] and [27] of the statement of claim granted
Application of second defendant to strike out the claims made against it granted
Plaintiff granted leave to re-plead

Category:    B

Representation:

Counsel:

Plaintiff : Mr N Dillon
First Defendant : Mr J M Healy
Second Defendant : Mr T M Clavey
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance

Solicitors:

Plaintiff : Arthur Koroveshi Barrister And Solicitor
First Defendant : Barry Nilsson Lawyers
Second Defendant : Sparke Helmore Lawyers
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers-Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127

Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 273 ALR 664

Charlie Carter Pty Ltd v…

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Details
Case
[2019] WASC 414
Decision Date

CaseChat Overview and Summary

The case of Superline Enterprises Pty Ltd v Palassis Architects involved a dispute between Superline, the plaintiff, and Palassis Architects, along with BCA, the defendants, regarding a building contract. The plaintiff sought to prevent the defendants from striking out certain parts of the plaintiff's statement of claim on the grounds that they did not disclose a reasonable cause of action and could potentially prejudice, embarrass or delay the fair trial of the action. The case was heard in the Supreme Court of Western Australia.

The court had to decide whether the pleadings made against the defendants disclosed a reasonable cause of action and whether they had the potential to prejudice, embarrass or delay the fair trial of the action. In addition, the court had to determine whether evidence could be admitted in the determination of a strike out application brought under O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA), and whether it was appropriate to strike out on grounds of a yet unpleaded limitation defence.

The court held that evidence was not admissible in the determination of an application under O 20 r 19(1)(a), save for documents pleaded in the statement of claim. However, in opposing Palassis Architects' application, the plaintiff sought to read into evidence an affidavit sworn by its director, Mr Panagioths Nikos Eustratios Manios, on 18 April 2019. The court admitted this evidence on the basis that it contained material that was relevant to the disposition of the application pursuant to O 20 r 19(1)(c). The court also held that it was not appropriate to strike out on grounds of a yet unpleaded limitation defence, as it was unable to assess when the time ran for some progress payment claims, and the dates upon which loss and damage occurred had not been pleaded. As a result, the pleadings made against BCA were struck out pursuant to O 20 r 19(1)(a). The affidavit sworn by Mr Manios on 16 April 2019 was inadmissible and not admitted into evidence.

The court ordered that the pleadings made against Palassis Architects were not to be struck out, but the pleadings made against BCA were to be struck out.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Insofar as Palassis Architects and BCA bring their applications on grounds that the matters pleaded disclose no reasonable cause of action, evidence is not admissible in determination of an application under O 20 r 19(1)(a), save for documents pleaded in the statement of claim.[1][1] Southern Wine Corporations Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236 [3] (McLure JA); Day v William Hill (Park lane) Ltd [1949] 1 KB 632, 639 (Singleton J). In opposing Palassis Architect's application, Superline seeks to read into evidence an affidavit sworn by its director, Mr Panagioths Nikos Eustratios Manios, on 18 April 2019. It is conceded by Palassis Architects that evidence is admissible in the determination of a strike out application brought on grounds that rely upon O 20 r 19(1)(c), that is the pleadings may prejudice, embarrass or delay the fair trial of the action. Pleadings are liable to be struck out on this ground because they are evasive, conceal, or obscure the real questions in controversy, are ambiguous or not reasonably intelligible, raise immaterial or irrelevant issues, fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.[2] For this reason, the affidavit evidence given by Mr Manios in the affidavit sworn by him on 18 April 2019 has been admitted into evidence in opposition to the application made by Palassis Architects, on grounds the affidavit contains material that is relevant to the disposition of the application pursuant to O 20 r 19(1)(c).[2] Kidd v Mitchell Frederick Artus trading as Downings Legal [2013] WASC 264 [26] (Allanson J) citing Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998); see also, Terravision Pty Ltd v Black Box Control Pty Ltd [No 2] [2015] WASC 66 [16] (Le Miere J). In opposing BCA's application, Superline seeks to read into evidence an affidavit sworn by Mr Manios on 16 April 2019. In support of its application to strike out BCA relies upon the affidavit of Ms Sarah Ellen Richards, sworn 2 April 2019. Ms Richards' affidavit was read into evidence on the basis that it merely annexes documents referred to in the statement of claim. By his affidavit filed 16 April 2019, Mr Manios seeks to adduce evidence of email exchanges between Mr Manios and both Mr Kevin Palassis and Mr Darrel Grant (of BCA), and of email exchanges between Mr Palassis and Mr Grant. The affidavit also annexes, as annexure PM‑8, a copy of a standard form contract AS4122‑2010. The emails (and, in some cases, their attachments) and the standard form contract are, in essence, sought to be adduced to substantiate claims as to the terms on which BCA was engaged to complete the Works. None of the documents sought to be adduced are pleaded in the statement of claim. I have, however, determined the pleadings made against BCA should be struck out pursuant to O 20 r 19(1)(a). Because of this finding, Mr Manios' affidavit sworn on 16 April 2019 is inadmissible and has not been admitted into evidence.