Weal v Palace Developments 2016 Limited
[2021] NZHC 2709
•11 October 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2020-419-254
[2021] NZHC 2709
BETWEEN CHRISTINE ANN WEAL
Plaintiff
AND
PALACE DEVELOPMENTS 2016 LIMITED
Defendant
Hearing: 29 September 2021 (by AVL) Appearances:
D M O’Neill and H J Mills for the Plaintiff M J Meier for the Defendant
Judgment:
11 October 2021
JUDGMENT OF ASSOCIATE JUDGE LESTER
WEAL v PALACE DEVELOPMENTS 2016 LIMITED [2021] NZHC 2709 [11 October 2021]
[1] The defendant, Palace Developments 2016 Limited, seeks particulars of the plaintiff’s claim. The plaintiff, Ms Weal, owns a rural property in Te Awamutu. The defendant owns a neighbouring block of land on which it is carrying out a 20 lot residential subdivision. The plaintiff runs an equestrian training school on her land.
[2] The plaintiff pleads it was a condition of the subdivision consent granted to the defendant that it undertake bulk earthworks on its property and on a portion of the plaintiff’s adjacent land. The defendant denies this allegation and says: “The subdivision consent permitted earthworks to be undertaken on the defendant’s property”. The defendant further denies the subdivision consent required that it first obtain the plaintiff’s consent. That pleading might be thought to be splitting hairs when only the plaintiff can permit work to be done on her land.
[3] In any event, the plaintiff pleads that in order to obtain her consent, the defendant provided her with a proposal, called the “consultation package”. The consultation package included a subdivision plan, original contour plan with aerial photographs, a general arrangement with finished contours, and a cut/fill layout plan.
[4] The plaintiff says the consultation package proposed, among other things, that the defendant would carry out the earthworks on the properties resulting in site recontouring in accordance with the contour plan (the Contour Plan). Retaining walls were to be built and an estimate of the volume of earthworks was provided. It was agreed no material would be removed from the plaintiff’s site. The area of the plaintiff’s land affected by the earthworks is said to be 4,300 m2.
[5] The finished levels for the two properties were shown on the Contour Plan. The earthworks involved, in part, the levelling off a small hill between the properties to tie in the new ground level with existing ground levels. The Contour Plan allowed for the development’s finished ground level to be extended approximately two metres through the boundary onto the plaintiff’s land for consistent contouring.
[6] The consultation package also proposed that the pasture on the plaintiff’s property would be re-sown, and estimated the earthworks would take two or three months along with other commitments.
[7] While the defendant admits sending the consultation package, it says it was an initial proposal only.
[8] At the heart of the plaintiff’s claim is her contention that the defendant did not comply with the consultation package, in particular, the Contour Plan. There are two causes of action: the first is breach in contract on the basis the defendant agreed to implement the consultation package in exchange for her consent but breached that agreement, and the second alternative claim is in estoppel. The statement of claim pleads a number of breaches of the consultation package and those allegations are repeated in relation to the estoppel cause of action.
[9] The pleaded breaches in para [21] of the claim relevant to the present application for further and better particulars are as follows:
(a)The current contours of the land do not match the Contour Plan.
(b)The fill slopes are steeper than shown on the Contour Plan.
(c)The defendant has over-excavated a portion of the plaintiff’s property affected by the development, where a low hill was formerly present.
(d)The defendant has backfilled, with unsuitable fill, to a depth of 1 metre where the contract drawings show no backfilling.
(e)The defendant placed soil filling in the northern corner of the plaintiff’s property (the lowest part of the plaintiff’s property). This covered a former drain that ran through that part of the property. Earth filling at this location was not part of the consultation package.
(f)The defendant has removed clay/structural material from the site.
(g)The earthworks have caused flooding on the plaintiff’s property. In June/July 2018 the plaintiff’s property flooded. Water and sediment were running off the defendant’s property, on to the plaintiff’s property, and causing flooding on the plaintiff’s property.
(h)Inadequate fencing was constructed by the defendant without any prior consultation or agreement with the plaintiff.
(i)The defendant placed a sediment hole on the plaintiff’s property which was not provided for in the Contour Plan, rendering that part of the plaintiff’s property unusable for grazing.
(j)…
(k)The plaintiff was unable to train horses at her property.
(l)…
(m)The defendant failed to remediate the negative effects resulting from the development.
[10]Loss is pleaded as follows:
22.As a result of the failures by the defendant, the defendant has breached its agreement with the plaintiff and the plaintiff has suffered the following losses:
Plaintiff’s losses are the costs to undertake the following;
a. Install sediment and erosion control devices in accordance with Waikato District Council Erosion and Sediment Control Guidelines.
b. Excavate and remove the unsuitable material from the plaintiff’s land, and replace with suitable fill.
c. Replace topsoil over the plaintiff’s property affected by the breaches and reconstitute the areas and re-establish pasture.
23.The cost of the work set out in paragraph 21 and 22 above is $971,035 plus GST.
Applicable principles
Particulars
[11] The defendant’s application for particulars is made under r 5.26 of the High Court Rules 2016, which provides:
5.26 Statement of claim to show nature of claim
The statement of claim -
(a)must show the general nature of the plaintiff’s claim to the relief sought; and
(b)must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and
(c)must state specifically the basis of any claim for interest and the rate at which interest is claimed; and
(d)in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.
[12]The Court of Appeal in Price Waterhouse v Fortex Group Ltd said:1
… that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings.
[13]The Court then put the scope of the requirement in this way:2
The pleader and Court simply ask “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”. This is not, under modern practice, simply some minimum which a Defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.
1 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 18.
2 At 19.
[14] In Securitibank Ltd (in rec and in liq) v Rutherford (No 25), Barker J summarised the general purpose and content of particulars in the following way:3
The function of particulars is to carry into operation the over-riding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly, without surprises and, incidentally, to reduce cost. Their function has been stated inter alia:
(a)To inform the other party of the nature of the case he has to meet, as distinguished from the mode in which the case will be proved;
(b)To prevent the other party from being taken by surprise;
(c)To enable the other party to know with what evidence he ought to be prepared; and
(d)To limit and define the issues.
A certain amount of detail is necessary in order to ensure clearness. What particulars need to be stated depend on the facts of each case.
…
Another important principle is that where misconduct is imputed against any party, those allegations against him must be stated with especial particularity and care.
[15] It is not a defence to a proper request for particulars that the particulars are unknown. In Pickard v Ambrose, Associate Judge Gendall (as he then was) referred to a passage in McGechan on Procedure which is still in the commentary and states the general rule gives way in cases:4
… where the party seeking particulars knows that the party from whom particulars are sought does not have them, and the Court considers the former is not genuinely embarrassed by the lack of particulars, or that the particulars sought were within the knowledge of the requesting party.
[16] In those situations the Court can make an order that the particulars not be provided or defer the provision of particulars until after the provision of discovery. While discovery has not been undertaken in this case, it was not suggested that the plaintiff required discovery to give the particulars sought.
3 Securitibank Ltd (in rec and liq) v Rutherford (No 25) HC Auckland A355/81, 10 October 1983 at 10-11.
4 Pickard v Ambros HC Wellington CIV-2003-091-143, 14 April 2008 at [29], citing Andrew Beck and others (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR5.21.06].
[17] The exchange of briefs does not alter the requirements for properly particularised pleadings.5 K s J (as he then was) in Ayers v LexisNexis NZ Ltd stated:6
[49] Particulars lie in a sometimes uncomfortable no-man’s land between material or essential facts (which must be pleaded and traversed) and evidence (which must not). As Drummond J put it in Queensland v Pioneer Concrete (Qld) Pty Ltd:
… a pleading must contain only a statement in summary form of the material facts, but not the evidence by which those facts are to be proved, while the primary function of particulars is to ensure that effect is given to “the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs”.
(footnotes omitted)
[18] In considering whether a party is likely to be taken by surprise, the Court is entitled to have regard to whether the particulars sought are within the knowledge or control of the requesting party and the fact that briefs of evidence will be exchanged well in advance of the hearing.7 The Court is also entitled:8
… to take into account its ability in cases with substantial evidence to provide for defendants to have extended periods of time to digest and respond to the evidence of the plaintiff.
[19] In Price Waterhouse, the Court observed that pleadings should be read as conveying what they would reasonably convey, in the context of the case, “to a sensible legal mind”.9
[20] The Court further stated that the detail in a statement of claim is not at the level of a full disclosure of all evidence and documentation, as it is an abbreviated summary “statement” of the basic facts said to give rise to the claim, and of the relief which is sought.10 It is the level at which such abbreviation is to be set which causes ongoing
5 Price Waterhouse v Fortex Group Ltd, above n 1, at 19.
6 Ayers v LexisNexis NZ Ltd [2012] NZHC 3055, citing Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 at [12].
7 Body Corporate 74246 v QBE Insurance (International) Ltd [2015] NZHC 1360 at [18(i)].
8 Body Corporate 74246, above n 7, at [18(i)(iii)].
9 Price Waterhouse v Fortex Group, above n 1, at 18.
10 At 11.
difficulties. The Court in Price Waterhouse provided the following guidance:11
As so often is the case in procedural matters, in the end a common-sense and balance judgment based on experience as to how cases are prepared and trials work is required. It is not an area for mechanical approaches or pedantry.
[21] A strict fact versus evidence distinction is unhelpful. If the context requires evidence to be pleaded to meet the requirements of r 5.26, then so be it.12
[22] In Platt v Porirua City Council, Kós J stated that the fundamental function of the particulars of pleading are to:13
(a)inform defendants as to the case they have to meet;
(b)limit the scope of matters the plaintiff may put in issue at trial (or in pre-trial settlement discussion);
(c)enable the defendants to know what witnesses it will need to retain and enable them to start preparing evidence ahead of the formal exchange of evidence; and
(d)provide an opportunity for a defendant to seek summary determination on the basis that the claim as pleaded is untenable.
Notice requiring particulars
[23] On 5 February 2021, the defendant issued a notice requiring the plaintiff to file and serve a more explicit statement of claim. Associate Judge Andrew in a Minute of 10 February 2021 made orders by consent directing the plaintiff to file and serve an amended statement of claim addressing the matters set out in the defendant’s notice for particulars.
[24] The plaintiff provided a notice supplying some particulars as she took the view that a number of the particulars appeared to be evidential in nature and not required in a pleading. The defendant did not accept that assertion, hence the present application.
11 At 19.
12 Smith v Attorney-General [2020] NZHC 836 at [7]-[8] and [20(b)].
13 Platt v Porirua City Council [2012] NZHC 2445 at [19].
[25] The defendant provided a schedule to its submissions setting out the particulars sought and the reasons why. That schedule, in edited form, is attached to this judgment and sets out my decision in respect of each particular (in blue).
[26] The reasons for the orders made in broad terms are as follows. I address the particulars sought at para [21] of the statement of claim (together with the corresponding pleading at para [33]), given paras [21] and [33] are identical. In short, the defendant says it is entitled to know where and how the current contours of the land and other earthworks are different from that which the plaintiff says it was promised under the consultation package. The plaintiff’s response to the particulars sought at para [21] are they are all evidential in nature and need not be pleaded.
[27] While I address each of the particulars sought in the schedule, as a general proposition I agree with the defendant that particulars identifying the location and area of the earthworks claimed not to comply with the consultation package, and why those areas do not comply, are required. Where the plaintiff alleges she has not received what she says was promised under the consultation package, the pleading should identify, in respect of each asserted breach, the term of the consultation package not complied with and give specifics as to why that allegation is made - that is, details of the breach.
[28] As noted, the statement of claim records that 4,300 m2 of the plaintiff’s land was subject to the earthworks. General allegations that the finished earthworks do not meet contour requirements or similar under the consultation plan are not sufficient to tell the defendant what it is claimed it did wrong. As the pleadings stand, it is not possible to tell from reading the claim and the limited particulars provided what the defendant is accused of getting wrong, where it got it wrong, and the area affected.
[29] Mr O’Neill, counsel for the plaintiffs, submitted that the plaintiff’s experts had had to assess non-compliance with the consultation package after the event and there was nothing stopping the defendant’s experts going on-site to do the same. This submission is no answer to the plaintiff’s pleading obligations. If Mr O’Neill’s approach was adopted, the defendant would be placed in the impossible position of having to identify all departures from the consultation package but not know which
breaches had also been identified by the plaintiff nor which of those breaches which were of concern to the plaintiff in this proceeding.
[30] Particulars can be given in a number of ways. Where, for example, in this case the plaintiff has to identify the areas of her land where the contours are not as promised or other earthworks are not as promised, such could be shown by way of a plan or a marked-up photograph or similar. The plaintiff must be able to say what areas of her land she considers have not been contoured or restored to the standard required by the Contour Plan – and the defendant needs to know that in order to understand the claim.
[31] As to details of how remediation is to occur and a breakdown of the cost, I do not consider those particulars to be onerous or unreasonable, particularly when it is pleaded that the cost of remediating the work covered by the particulars in para [21] of the statement of claim is $971,035 plus GST. There is merit in the defendant’s submission that this figure indicates that a detailed pricing has been received for remediating the breaches pleaded in para [21]. In fairness to Mr O’Neill, he accepted a breakdown of the quantum linked to the various breaches to be remediated would be in the amended claim.
[32] As detailed in the attached schedule, there is a group of particulars seeking details of loss which are not ordered. The defendant submitted it is “well settled that, when alleging defects, a defendant is entitled to be informed of how its non-compliance with the pleaded standard (Contour Plan) resulted in loss.” The authorities relied on for this proposition are Tucker v Welch Construction (1998) Ltd (in liq)14 and Platt v Porirua City Council.15 However, both these cases involved claims in negligence where loss is part of the cause of action. The present case is in contract.
[33] A plaintiff in a contract claim can point to their contract and say they were promised a particular outcome which the defendant did not deliver. A plaintiff can quantify their claim by reference to the cost to rectify what they were promised to the contractual standard. There can be argument around whether cost of repair versus loss
14 Tucker v Welch Construction (1998) Ltd (in liq) [2012] NZHC 514.
15 Above n 13.
of value is the appropriate measure of loss, but generally a plaintiff is entitled to quantify their damages as they see fit. Here, particulars requiring the plaintiff to plead how the breaches have affected the property will not be required as the plaintiff is able to point to the breach of contract as the event triggering her right to damages based on the cost to remediate, the claim is not based on loss of value.
[34] Paragraph [15] of the statement of claim pleads: “The consultation package submitted to the Council was a different version than the consultation package signed by the plaintiff.”
[35] The notice requiring particulars required that the plaintiff state how the consultation package submitted to the Council differed to the version signed by the plaintiff and state which version the plaintiff is relying on.
[36] After discussion with Mr O’Neill he confirmed paragraph [15] will be omitted from the amended statement of claim. The plaintiff relies on the original consultation package. That the defendant may have provided the Council with an amended package is not relevant to the plaintiff’s claim. If the defendant implemented the amended consultation package then that will be evidence of the defendant’s breach of the original consultation package to the extent they differ. That this paragraph is to be removed from the claim is noted in the attached schedule.
[37] Accordingly, the directions made in relation to this application are recorded under the heading “Decision” set out in the applicant’s schedule attached.
[38] Counsel have identified that the plaintiff’s land is in fact owned by trustees, but that the equestrian business is owned by Ms Weal alone. By consent, there is an order under r 4.56 adding the trustees of the land as the second plaintiffs.
Costs
[39]Costs are reserved.
Associate Judge Lester
Solicitors:
Edmonds Judd, Te Awamutu Vosper Law, Cambridge
Copy to counsel:
V Whitfield, Barrister, Cambridge
SCHEDULE
| Paragraph in statement of claim | Further information required as requested in our notice requiring more explicit statement of defence |
| 15 | Decision |
| 18.d | Defendant’s Submission The plaintiff alleges that there was a variation to a contract with material terms “that the defendant agreed to construct a deck at the plaintiff’s house as part of a compensation for the earthworks being carried out. “ At 3.3.4 the defendant sought the terms of the agreement relating to the construction of the deck, including whether there was a plan and/or drawing of the deck, the material, size and height of the deck and when it was to be constructed. Decision Mr O’Neill realistically accepted that, as no details in respect of the deck (such as size or materials) were agreed, breach of what was an agreement to agree in respect of the deck would not result in damages. The deck is referred to for completeness only. The amended pleading will clarify that no loss is claimed for the deck. On that basis no further particulars are required as no loss is claimed for the deck. |
| 21(a) and 33(a) | Defendant’s Submission The plaintiff has failed to provide details as requested for sub-paragraphs 21(a) and 33(a) of the statement of claim. Those paragraphs stated the “current contours of the land do not match the contour plan”. The plaintiff alleges the current contours of the land as constructed by the defendant are defective. It is a longstanding principle in relation to pleading that the statement of claim needs to particularise for each defect any objective standards that the plaintiff required the defendant to meet, and how the defendant fell short, that is, particularson what the plaintiff alleges is defective about the current contours of the land. It is also well settled that, when alleging defects, a defendant is entitled to be informed of how its non-compliance with the pleaded standard (contour plans) resulted in loss. Accordingly, please provide: 1. how the current contours of the land differed from the contour plan; 2. how that affects the property; 3. what the negative effects are of the difference; 4. why it requires remediation; and 5. how it is proposed to be remediated and at what cost. Decision |
| As noted in the body of the judgment, I am satisfied particulars are called for in relation to the detail of the breaches around the earthworks. However, the particulars sought at (2), (3) and (4) above in my view are not required given this is a contract claim with loss based on remediation. The particulars in (1) and (5) are to be provided in the amended pleading. The application in relation to (2), (3) and (4) is declined. |
| 21(b) and 33(b) | Defendant’s Submission The defendant is entitled to know the factual allegations that the plaintiff says is a defect. The defendant accepts that currently the gradient of the current fill slopes may not be known beyond indicative levels but in such circumstances the particulars of the gradients of the slopes should have been reserved for a later date. However, to the extent it can, the plaintiff must particularise the physical facts the alleged defect is based on. As stated before, it is well settled when alleging defects that a defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Accordingly, please provide: (1) the gradient of the fill slopes (to the extent possible) and the gradient shown on the contour plan; (2) what the negative effects are of the difference; (3) why it requires remediation; and (4) how it is proposed to be remediated and at what cost. Decision It follows from the approach taken in the preceding paragraphs that the defendant is to give the particulars in (1) and (4) but not in (2) and (3). |
| 21(c) and 33(c) | Defendant’s Submission At sub-paragraphs 21(c) and 33(c) of the statement of claim it is stated that the “defendant has over-excavated a portion of the plaintiff’s property affected by the development”. The plaintiff has not provided any further and better particulars as required. A defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Accordingly, please state: (1) how the over-excavation affects the property; (2) what the negative effects are; (3) why it requires remediation; and (4) how it is proposed to be remediated and at what cost. Decision I was told that under the consultation package there was to be no excavation, “over-excavated” suggests the defendant exceeded a permitted level of evacuation, so the wording of this breach may need to be considered in the amended pleading. This category is the same as the prior ones. Particulars of (1) and (4) are to be given and (2) and (3) are declined. Mr O’Neill submitted that how the earthwork defects were to be remediated was obvious but nonetheless such should be stated so that it is clear what is proposed. |
| 21(d) and 33(d) | Defendant’s Submission At sub-paragraphs 21(d) and 33(d) of the statement of claim it is stated that the “defendant has backfilled, withunsuitable fill, to a depth of 1 metre where the contract drawings show no backfilling”. The plaintiff has not provided any further and better particulars as required. An allegation as vague and in general terms such as “unsuitable fill” is not sufficient for particulars of a defect. Further, a defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Accordingly, please state: (1) what the fill is made of; (2) how it affects the property; (3) what the negative effects are; (4) why itrequires remediation; and (5) how it is proposed to be remediated and at what cost. Decision In a sense whether the fill is unsuitable is not relevant to the pleaded breach which is that no backfilling was permitted in the affected area. If the amended claim continues to rely on the fill being unsuitable then why it is unsuitable should be pleaded. What the plaintiff is seeking by way of remediation here is also important. The pleading at [22](d) is that the unsuitable fill is to be excavated and removed so there is another remediation claim. I direct that the plaintiff is to give particulars (1) and (5), albeit the present pleading gives basic detail of what is proposed by way of remediation. I expect providing the quantum evidence as agreed will record the volume of material to be removed, at what cost and the cost of making good. |
| 21(e) and 33(e) | Defendant’s Submission At sub-paragraphs 21(e) and 33(e) of the statement of claim it is stated that “the defendant placed soil filling in the northern corner of the plaintiff’s property“. The plaintiff has not provided any further and better particulars as required. A defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Please state: (1) how the soil filling affects the property; (2) what the negative effects are; (3) why it requires remediation; and (4) how it is proposed to be remediated and at what cost. Decision The consultation package did not allow the defendant to place fill on the plaintiff’s land. If fill was placed on the land and if the contract relied on by the plaintiff prohibited fill being placed on her land, then a cause of action in contract is appropriate. The terms pleaded at para [11] of the claim do not include a prohibition of placing fill. In the absence of the contract dealing with fill it may be that the plaintiff’s cause of action on this point will have to be in tort. If the tort pleaded is only complete upon loss then such will need to be pleaded. If the claim can be maintained in contract then only particular (4) is to be provided. If it is repleaded in tort then leave is reserved for the application to be revisited in respect of the revised pleading and I adjourn the application for that purpose to be brought on before me on 15 working days’ notice. |
| 21(f) and 33(f) | Defendant’s Submission At sub-paragraphs 21(f) and 33(f) of the statement of claim it is stated that “the defendant has removed clay/structural material from the site”. The plaintiff has not provided any further and better particulars as required. A defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Please state: (1) how the removal of clay/structural material negatively affects the property; (2) why it requires remediation; and (3) how it is proposed to be remediated and at what cost. Decision The plaintiff is to identify the area from which the material was taken and the volume taken and is to provide particulars for (3). Particulars (1) and (2) are not ordered for the reasons given above. |
| 21(g) and 33(g) | Defendant’s Submission A defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Please state how the earthworks caused the flooding, how it is proposed to be remediated and at what cost. Decision This category is different from the others. The assumption underlying the plaintiff’s case is that she would not be suffering flooding if the defendant had complied with the terms of the consultation package. If relief is granted in relation to those claims then it should cure the flooding as the relief claimed is based on remediating the breaches. If damages from the flooding is claimed that will need to be pleaded separately as, at the moment, the claim for loss for the breaches claimed in para [21] of the statement of claim is for remediation. Mr O’Neill is to revisit these sub-paragraphs. If the plaintiff intends to seek damages for loss already caused by flooding that will need to be separately pleaded. But for that, it is not clear to me what 21(g) adds to the other breaches that are said to have caused flooding. If the flooding was caused by breaches other than one or more of specific allegations in the other sub- paragraphs of [21] then the cause of the flooding will need to be pleaded with the same detail I have required for the other claimed breaches by the defendant. I include this category in the adjourned aspect of the application. |
| 21(h) and 33(h) | Defendant’s Submission At sub-paragraph 21(h) and 33(h) of the statement of claim it is stated that: “Inadequate fencing was constructed “Inadequate fencing” is insufficiently vague and generalised, especially for particulars of a defect. The statement of claim needs to particularise the objective standards that the plaintiff required the defendant to construct the fence to, and how the defendant fell short. A defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Accordingly, please state: (1) what fencing was supposed to be constructed; (2) how and why the fencing is inadequate; (3) what the negative effect is of the inadequate fencing on the property; and (4) how it is proposed to be remediated and atwhat cost. Decision Mr O’Neill accepted the pleading of “inadequate fencing” required expansion. Particulars (1), (2) and (4) are to be provided. Particular (3) is declined as, once it is claimed the fencing does not meet the contractual standard and remediation is sought, (3) is not relevant. |
| 21(i) and 33(i) | Defendant’s Submission At sub-paragraphs 21(i) and 33(i) of the statement of claim it is stated that: “The defendant placed a sediment hole A defendant is entitled to be informed of how its alleged non-compliance with the pleaded standard resulted in loss. Please state: (1) what the negative effect of the sediment hole is; and (2) how it is proposed to be remediated and at what cost. Decision The breach here is the defendant was not entitled to place a sediment hole on the plaintiff’s property. If the defendant did not have a right to do so then it will be liable for doing so without more. Particular (1) is not required but Particular (2) is to be provided. This may be another instance of breach which may have to be framed in tort if the contract asserted by the plaintiff did not prohibit the defendant undertaking work. Whether the claim should be in contract or tort will depend on the exact wording of the consultation package said to contain the contract. If it is said the contractual prohibition is based on something other than the package, then that will need to be pleaded. |
| 21(k) and 33(k) | Defendant’s Submission At sub-paragraph 21(k) and 33(k) of the statement of claim it is stated that: “The plaintiff was unable to train horses It is also well settled that if the plaintiff wishes to assert that the defendant caused a particular loss like the loss of the plaintiff’s ability to train horses at her property that should be done with appropriate particulars as to how the defendant is said to have caused it, the particular loss or losses allegedly suffered and the basis for the assertion that they were caused by the defendant. Please state: (1) why the plaintiff was unable to train horses at her property; (2) on what part of her property she was unable to train horses; (3) between what period was she unable to train horses; and (4) what the negative effect was and whatis claimed for the inability to train and how is it calculated. Decision The plaintiff provided particulars in response to this request. I consider that response meets the particulars sought. In particular, paragraph [20] of the particulars provided sets out how this aspect of the loss is quantified. These particulars are declined. |
| 21(m) and 33(m) | Defendant’s Submission This sub-paragraph was recognised as a “catch-all” and will not be included in the new pleading. No |
| 22 and 34 | Defendant’s Submission At paragraphs [22] and [34] of the statement of claim it is stated that: “As a result of the failures by the defendant, the defendant has breached its agreement with the plaintiff”. The plaintiff has not provided any further and better particulars as required. As to the claim “as a result of the failures by the defendant”, when an allegation of a defect or failure is made then the statement of claim needs to particularise the objective standards that the plaintiff required the defendant to meet and how the defendant fell short. The defendant accepts that, if the plaintiff sufficiently provides details as required in other parts of the statement of claim, then it will not be required to do so twice. However, the plaintiff has failed to do so. Accordingly, please state the failures, when each failure happened, why and/or how it was a failure. As to alleged breaches: (1) the defendant seeks the most basic of details, which are the terms of the agreement the defendant breached, how or what act and/or omission by the defendant breached the terms of the agreement and how each act or omission caused the plaintiff to suffer loss. Decision In context it is clear that paragraph [22] is referring to the breaches detailed in paragraph [21]. I do not order the particulars sought but the defendant can expect this minor drafting point to be resolved in the amended pleading. |
| 23 and 35 | Defendant’s Submission The plaintiff has failed to provide any particulars as to the costs of work. Decision The request for particulars of the amount claimed for remediation costs is overtaken by Mr O’Neill’s agreement to provide a breakdown of the amount claimed in the amended statement of claim. No direction is made given that assurance. |
| 26 and 38 | Defendant’s Submission At paragraphs [26] and [38] of the statement of claim it is stated that: “The plaintiff would have been able to graze 15 cows on the affected part of her property. She has been unable to do so”. The plaintiff has failed to provide required better and further particulars. It is well settled that if the plaintiff wishes to assert that the defendant caused a particular loss [like the loss of the plaintiff’s ability to graze cows] that that should be done with appropriate particulars as to how the defendant is said to have caused it, the particular loss or losses allegedly suffered and the basis for the assertion that they were caused by the defendant. Accordingly, please state: (1) why the plaintiff was unable to graze cows on the affected area; (2) how many cows werehistorically grazed on the affected part of her property; and (3) what the $10 per week is based on. Decision During the hearing it was clarified that the loss of grazing was a consequence of the breach pleaded at [21](c). With that clarification the claim of loss in [26] of the statement of claim is explained. The pleading at [26] is that the plaintiff would have been able to graze her cows in the affected area. Particular (2) is a matter for discovery. If historically it had not been possible to graze cows on the affected area, that will be a matter for trial. The plaintiff pleads she could have grazed cows if the affected area had been properly sown – that is a matter for her to prove. As to the weekly rate, that is a matter of evidence and discovery – the pleading is clear. The clarification noted above should be reflected in the amended pleading. |
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