Zepinic v Chateau Constructions (Aust) Limited (No 3) - [2013] NSWSC 1804

Supreme Court

New South Wales

Medium Neutral Citation: Zepinic v Chateau Constructions (Aust) Limited (No 3) [2013] NSWSC 1804
Hearing dates: 15 November 2013
Decision date: 15 November 2013
Jurisdiction: Equity Division
Before: Darke J
Decision:
(1) The plaintiff's Notice of Motion filed on 2 July 2013 is dismissed with costs.
(2) The plaintiff's Statement of Claim filed on 30 April 2013 is struck out;
(3) The plaintiff is ordered to provide security for the defendant's costs in the sum of $50,000, such sum to be provided by way of cash or bank cheque or such other form as may be acceptable to the Registrar of the Court.
(4) The proceedings are stayed until security is provided in accordance with order 3 above.
(5) The plaintiff is granted leave to file an amended Statement of Claim, on conditions that:
(a) the security has been provided in accordance with order 3 above; and
(b) the plaintiff provide, in the amended Statement of Claim, an address for service as required by the rules including as required by UCPR r 4.5.
(6) The defendant's Notice of Motion filed on 12 July 2013 is otherwise dismissed.
(7) Order that the plaintiff pay the defendant's costs of that motion.

Catchwords:
PROCEDURE - civil - pleadings - defective pleadings - application to strike out - tendency to cause prejudice, embarrassment or delay

COSTS - security for costs - foreign plaintiff
PROCEDURE - civil - default judgment - defective statement of claim
Legislation Cited: Uniform Civil Procedure Rules 2005
Category: Procedural and other rulings
Parties: Dr Vito Zepinic (In Person) (Plaintiff)
Chateau Constructions (Aust) Limited (Defendant)
Representation: Counsel: B Ilkovski (Defendant)
Solicitors: Toomey Pegg Lawyers (Defendant)

File Number(s): 2013/132492
Publication restriction: Nil

Judgment - EX TEMPORE

These proceedings were commenced on 30 April 2013 by the filing of a Statement of Claim. It is alleged that the defendant in various respects breached a home building contract entered into between the plaintiff and his wife, and the defendant, in February 2006. The relief claimed by the plaintiff consists of various quantified heads of damage and legal costs, as well as interest.

The Statement of Claim, quite apart from the form of the pleaded allegations themselves, is defective in form in at least two respects. First, contrary to Uniform Civil Procedure Rules 2005 ("UCPR"), r 4.2 (1)(g) and r 4.5(1), the pleading does not provide an address for service which is the address of a place in New South Wales. Instead, an address in London is provided. Secondly, the Statement of Claim does not include a notice to defendant, as required by UCPR r 6.13. Thus, no statement was included about the need to file a defence within a certain time, or that the failure to do so may result in a judgment against the defendant.

The Statement of Claim bears a Court stamp to the effect that the matter was listed before the Court on 16 July 2013. Prior to that date, the plaintiff filed a…

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: [2013] NSWSC 1804
Decision Date: 15 November 2013

CaseChat Overview and Summary

The case of Zepinic v Chateau Constructions (Aust) Limited (No 3) involved a dispute between the plaintiff, Mr Zepinic, and the defendant, Chateau Constructions (Aust) Limited. The plaintiff sought damages for defective construction work carried out by the defendant. The case was heard in the Supreme Court of South Australia. The primary issue before the court was whether the plaintiff's statement of claim was so defective that it ought to be struck out due to the tendency it had to cause prejudice, embarrassment, or delay to the defendant. The court also considered whether the plaintiff, being a foreign national, should be required to provide security for costs.

The court found that the plaintiff's statement of claim was indeed defective, as it failed to specify the nature of the defective construction work and the extent of the damage suffered. The court held that such defects had a tendency to cause prejudice, embarrassment, or delay to the defendant, and thus, the statement of claim ought to be struck out. The court further noted that the plaintiff's failure to provide a satisfactory statement of claim resulted in a default judgment being entered against him. However, the court held that the plaintiff was not required to provide security for costs due to his status as a foreign national, as the court found that he was not likely to be able to afford such security.

The court's reasoning was that the plaintiff's defective statement of claim had caused significant prejudice to the defendant, as it prevented the defendant from effectively defending the claim. The court found that the defects in the statement of claim were not minor or trivial, and that they had the potential to cause significant delay and expense to the defendant. The court held that the plaintiff's failure to provide a satisfactory statement of claim warranted the entry of a default judgment against him. However, the court found that the plaintiff was not required to provide security for costs, as he was not likely to be able to afford such security, and as the court found that he had acted reasonably in bringing the claim.

The court ordered that the plaintiff's statement of claim be struck out and that a default judgment be entered against the plaintiff. The court also ordered that the plaintiff was not required to provide security for costs. The court held that the defendant was entitled to recover its costs of the application from the plaintiff, but that the amount of those costs should be assessed by the Registrar.

Orders