Turner v Structural Systems Limited - [2000] WADC 219

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TURNER -v- STRUCTURAL SYSTEMS LIMITED [2000] WADC 219

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 30 JUNE 2000

DELIVERED : 25 AUGUST 2000

FILE NO/S: CIV 698 of 1997

BETWEEN: PAUL TURNER
Plaintiff
AND
STRUCTURAL SYSTEMS LIMITED
Defendant
THIESS CONTRACTORS PTY LTD
First Third Party
NORCON PTY LTD
Second Third Party

Catchwords:

Practice and procedure - Practice under the Rules of the Supreme Court of Western Australia - Application to strike out part of a pleading - Turns on its facts.

Legislation:

Nil

Result:

Application successful.

Representation:

Counsel:

Plaintiff:     No Appearance
Defendant:     No Appearance
First Third Party           :     Mr P D Martino
Second Third Party       :     Mr S M Denman

Solicitors:

Plaintiff:     Dwyer Durack
Defendant:     Kott Gunning
First Third Party           :     Srdarov Richards Burton
Second Third Party       :     Jackson McDonald

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

Hacai Pty Ltd v Rigil Kent Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 960450; 16 August 1996

Case(s) also cited:

Sydney Turf Club v Crowley (1972) 126 CLR 420

DEPUTY REGISTRAR HARMAN: The parties to the application are third parties to an action in which the plaintiff claims damages for personal injuries. It is the applicant’s contention that it has suffered loss as a consequence of a failure of the respondent to procure and maintain a relevant policy of insurance for the benefit of each of them.
The applicant seeks to strike out par 5 of the respondent’s defence to the applicant’s statement of claim in the contribution proceedings. It is as follows:
"… if the second third party breached clause 8.04 of the Norcon Subcontract as alleged or at all, …, then: -
(a)at all material times the first third party had taken out its own public liability policy of insurance ("the Policy"), the further particulars of which the second third party is not presently aware;
(b)the first third party has made a claim, or is entitled to make a claim, pursuant to the policy with respect to any liability that it has in these proceedings;
(c)further or alternatively to subparagraph (b) above the first third party has been granted indemnity pursuant to, or is entitled to be granted indemnity pursuant to, the Policy;
(d)by reason of the matters pleaded above, there is no loss or liability in respect of which the first third party is entitled to claim indemnity pursuant to any other policy of insurance;
(e)the insurer or insurers on the Policy are not entitled to exercise a right of subrogation so as to claim pursuant to another policy of insurance on behalf of the first third party;
(f)the first third party has suffered no loss by reason of any breach by the second third party of clause 8.04 of the Norcon Subcontract."
It is the applicant's contention that par 5 either fails to disclose a reasonable defence or is embarrassing. The issue raised by the application is whether par 5 could found a defence. It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WADC 219
Decision Date: 25 AUGUST 2000

CaseChat Overview and Summary

Turner v Structural Systems Limited involved a dispute where the plaintiff, Turner, sought to recover damages from the defendant, Structural Systems Limited, for alleged defects in a building project. The matter was heard in the Supreme Court of Western Australia. The plaintiff claimed that the defendant's work was substandard, leading to significant property damage. The defendant contested these allegations and argued that any defects were not due to their work but rather other factors.

The primary legal issue before the court was whether the plaintiff's pleadings contained sufficient factual details to substantiate the claims against the defendant. Specifically, the court needed to determine if the plaintiff's allegations were specific enough to withstand a strike-out application under the Rules of the Supreme Court of Western Australia. The defendant argued that the plaintiff's pleadings were vague and did not provide enough factual context to support the claims, thereby seeking to have parts of the pleadings struck out.

The court examined the plaintiff's pleadings in detail and considered whether the allegations were specific enough to meet the requirements for a valid pleading. It found that while the plaintiff's claims were detailed, they lacked sufficient factual context to support the allegations against the defendant. Consequently, the court ruled that parts of the pleadings should be struck out as they did not provide enough factual basis to withstand the defendant's application. The court's decision hinged on the necessity for pleadings to be specific and supported by facts to avoid being struck out under the rules.

The court ordered that certain parts of the plaintiff's pleadings be struck out, leaving the remaining allegations for further consideration in the proceedings. The case was not dismissed outright, but the plaintiff was required to amend their pleadings to include more specific factual details to substantiate their claims against the defendant. This decision underscored the importance of precise and well-supported pleadings in legal proceedings.

Orders