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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- Case
- [2019] WASC 414
- Decision Date
CaseChat Overview and Summary
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.