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

1. 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. 

2. 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."

3. 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 simply a matter of considering the pleading.

4. There are two issues raised by par 5.  The first is the respondent’s allegation at par (d) that the applicant has suffered no loss.  In its submissions the applicant relies upon the determination in Hacai Pty Ltd v Rigil Kent Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 960450; 16 August 1996.  In that case the Court considered the case of a respondent who had pleaded the appellant’s breach of its obligation to insure both parties as a consequence of which the respondent had suffered loss.  The appellant had pleaded that the respondent had its own insurance cover and as a consequence had sustained no loss.  The Court determined that the fact that the respondent may have recovered against some other party was irrelevant and that the pleaded loss was at least founded upon the respondent’s inability to claim under the non-existent cover.

5. It follows that in this case the respondent could not establish a defence founded upon par (d).

6. The second issue is as to the allegation of subrogation pleaded at par (e).  It is significant that par (e) is conditioned by the opening words of par 5.  Unlike the allegation at par (d) the respondent does not plead that any insurer is seeking to exercise any right of subrogation.  Ultimately the respondent pleads a conclusion unsupported by any material fact other than the contractual breach.   

7. It follows that the application should succeed.