Thorpe v NK Ceilings (1992) Pty Ltd

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   THORPE -v- NK CEILINGS (1992) PTY LTD [2008] WADC 5

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   6 DECEMBER 2007

DELIVERED          :   24 JANUARY 2008

FILE NO/S:   CIV 1994 of 2006

BETWEEN:   ANDREW CECIL THORPE

Plaintiff

AND

NK CEILINGS (1992) PTY LTD (ACN 057 779 978)
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike a pleading under O 19 r 20, r 19(1)(c)

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiff:     Mr A Aristei

Defendant:     Mr D J Garnsworthy

Solicitors:

Plaintiff:     B W Duckham & Co

Defendant:     Hotchkin Hanly

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

Nil

1. DEPUTY REGISTRAR HARMAN:  By his application under O 20 r 19 (1) (c) the plaintiff seeks leave to strike out the defence and that result.  He carries the onus of persuasion. 

2. As to the issue of leave the defendant referred to the plaintiff's delay in applying and submitted that there was no evidence on the point.  As I indicated at the hearing, it would not be appropriate to determine the issue on any want of evidence.  I accept that the reason leave is required is that the application was brought late however once it is necessary to obtain leave that is the issue to be determined.  The application is not simply to extend the time within which to apply.

3. The plaintiff's claim in the action is for the cost of services provided by a legal practitioner under a retainer.  According to par 3 of his pleading the plaintiff was retained by the defendant to conduct an action on its behalf in the Supreme Court.  In pars 2 to 6 of its substituted defence, the defendant pleads a number of allegations and at par 7, that other than to the extent of those allegations, it does not admit par 3 of the statement of claim.

4. At par 2 it pleads that the plaintiff made representations concerning the fees that would be generated under the retainer, in particular, that they would be limited to $50,000.00 and be generated at hourly rates of $300 by the plaintiff and $150 by other fee earners.  At par 3, it contends that it accepted those representations; at par 4, that thereby the retainer was established; at par 5 that the representations were incorporated into the retainer as terms; and at par 6, that other terms ought to be imported.

5. The fundamental issue raised by the plaintiff in relation to that part of the defence was that the pleaded impact of the defendant's acceptance of the representations would prejudice embarrass or delay the fair trial of the action.  Central to that proposition is the submission that the acceptance of representations would not establish an enforceable agreement. 

6. As it was likely that my decision on the balance of the application would be delayed, on determining that part of it in favour of the plaintiff, so as to give…