TC Build Pty Ltd v STM123 Pty Ltd (No 2)
[2024] NSWSC 564
•10 May 2024
Supreme Court
New South Wales
Medium Neutral Citation: TC Build Pty Ltd v STM123 Pty Ltd (No 2) [2024] NSWSC 564 Hearing dates: 10 May 2024 Decision date: 10 May 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Decline to order the plaintiff provide the particulars sought by the defendants
Catchwords: CIVIL PROCEDURE – pleadings – particulars – where plaintiff has served all evidence on which it relies to prove its claim – where defendants seek particulars of the plaintiff’s claim concerning the unpaid direct costs claimed from the defendants in respect of various construction projects – where plaintiff has not sought to identify or prove those unpaid direct costs claimed
Category: Procedural rulings Parties: TC Build Pty Ltd (Plaintiff/Respondent)
STM123 Pty Ltd (First Defendant/Applicant)
Hoz Construction Pty Ltd (Second Defendant/Applicant)
Ian Drummond Hossack (Third Defendant/Applicant)
Vaughan Rudd Blank (Fourth Defendant/Applicant)
STM123 No. 4 Pty Ltd (Fifth Defendant/Applicant)
STM123 No. 6 Pty Limited (Sixth Defendant/Applicant)
STM123 No. 7 Pty Limited (Seventh Defendant/Applicant)
STM123 No. 9 Pty Limited (Eighth Defendant/Applicant)
STM123 No. 16 Pty Limited (Ninth Defendant/Applicant)
STM123 No. 17 Pty Limited (Tenth Defendant/Applicant)
STM123 No. 20 Pty Limited (Eleventh Defendant/Applicant)
STM123 No. 21 Pty Limited (Twelfth Defendant/Applicant)
Blank Super Pty Ltd (Thirteenth Defendant/Applicant)Representation: Counsel:
Solicitors:
D S Weinberger (Plaintiff/Respondent)
R Thrift (Defendants/Applicants)
Chedid Storey Legal (Plaintiff/Respondent)
Bradbury Legal (Defendants/Applicants)
File Number(s): 2022/229562
EX TEMPORE JUDGMENT (REVISED)
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In these proceedings, the plaintiff claims that it entered contracts with one or other of the defendants to construct residential units in relation to 10 projects. The plaintiff claims it was a term of those contracts that the relevant defendant would pay to the first plaintiff “the direct cost of the work, plus builder’s margin, at 8% of the direct cost amount”.
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By notice of motion filed on 8 February 2024, the defendants seek, amongst other things, particulars concerning those direct costs.
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In relation to each project, the plaintiff proposes to prove its “direct costs”, that is, the amounts that it has paid, or is liable to pay, its subcontractors and suppliers, by tendering:
extracts from entries in its financial records that are made using a proprietary software system, known as “Jobpac Connect”, referable to each project; and
the supporting subcontractor and/or supplier invoices, evidencing the entries in each line item in the Jobpac report.
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The plaintiff proposed to prove its loss in relation to each project by deducting, from the amount of its direct costs, the amounts paid by the defendants for that project, and then calculating the relevant margin.
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Mr Weinberger of counsel, who appeared for the plaintiffs, informed me that the plaintiffs have now served all the evidence on which they rely to make out those matters in relation to each of the 10 projects.
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Submissions focused on one of the 10 projects, namely, the “Lamrock Avenue Project”. I took it that the parties accepted that the Lamrock Avenue Project was relevantly typical of each of the projects the subject of the plaintiff’s claim.
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The plaintiff’s Jobpac records concerning the Lamrock Avenue Project comprise some 67 pages, organised by creditor, and show a total of direct costs of $6,908,346.21.
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During the project, the plaintiff sent 23 payment claims to the defendants. The defendant has paid all but two of those payment claims. The amount of the unpaid payment claims is $747,309.26. The defendant thus knows that this figure represents the direct costs allegedly incurred by the plaintiff, and which have been invoiced to the defendants, but not paid.
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The plaintiff’s Commercial List Statement alleges that the plaintiff’s loss, vis à vis direct costs of the Lamrock Avenue Project, is $1,080,406. That is, the plaintiff claims that this is the amount owing to and by the defendants in respect of direct costs for that project.
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The difference between those two figures is $333,096.74, which appears to represent a claim by the plaintiff for allegedly incurred direct costs which are not included in any of the plaintiff’s 23 payment claims; and, thus, not paid by the defendant.
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The plaintiff has not sought to, and, I would infer, cannot identify or prove what particular “direct costs” it has incurred in relation to the Lamrock Avenue Project that is represented by the $333,096.34, and, to this extent, cannot identify what particular directs cost it has incurred that are unpaid by the plaintiff. I understand that it is common ground that the same applies to the corresponding figures in relation to the other nine projects.
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Whether this will suffice for the plaintiff to prove its claim must remain a matter for the trial. The plaintiff has, however, made clear how it proposes to prove its case.
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The defendants seek particulars of the direct costs. There is some infelicity in the manner in which the request for particulars is made in the notice of motion, but Ms Thrift, in her written submissions, made the matter much clearer when she submitted:
“… the Plaintiff should provide, for each project, the following particulars of its claim:
a. the direct costs that have previously been invoiced to the various Defendants, and then paid by the relevant Defendant;
b. direct costs that have been previously invoiced to the various Defendants and not paid;
c. direct costs that have never been invoiced to the relevant Defendant.” (Emphasis in original.)
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As to (a), the answer must be those in the paid payment claims.
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As to (b), the answer must be those in the two unpaid payment claims.
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The nub of the defendant’s concern is (c), that is, whatever are the particular direct costs as are represented by the $333,096.74.
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I am not able to say by what process of analysis or interrogation of the plaintiff’s records the answer to this could be ascertained. However, as the plaintiff has, for better or for worse, made clear that it proposes to seek to prove its case without providing the answer to this question, I cannot see why the plaintiff should, in effect, be obliged to provide the defendant with whatever the answer may be; nor, indeed, can I understand why the defendant needs to know the answer in order to meet the plaintiff’s claim, as it is going to be put.
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For those reasons, I decline to order the plaintiff to provide the particulars sought.
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I do note, however, that, in the defendant’s motion, one of the particulars sought was:
“in respect of the various invoices comprising the Plaintiff’s alleged direct costs as set out in Plaintiff’s evidence in chief, which of those invoices still form part of the Plaintiff’s claims in these proceedings, whether as a result of them not previously being included in the Plaintiff’s Paid Invoices or otherwise.”
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Mr Weinberger informed me this morning that the answer is “all of them”.
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Although I decline to direct particulars, I am prepared to consider requiring the plaintiff to make available to the defendant, or their experts, appropriate access to the plaintiff’s Jobpac Connect system, to enable the defendants to explore this question.
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The defendants’ motion of 8 February 2024 also seeks discovery of certain items, both of which have been earlier agreed. One matter that has not yet been agreed is an item referable to the Jobpac software. To enable the parties to explore the possibility of reaching agreement as to disclosure in relation to that matter, I propose to stand the defendants’ notice of motion of 6 February 2024 over to 24 May 2024, before me.
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If, in the meantime, the parties can reach agreement as to the orders needed to give effect to my reasons just delivered, and in relation to the matter I have just mentioned, they should send my associate short minutes and I will make orders in chambers.
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As to costs, my present inclination is that the plaintiffs should have their costs of today, but will hear further submissions about costs on 24 May 2024, should that be necessary.
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Decision last updated: 13 May 2024
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