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  4. Ivec Pty Ltd v TJP Designs Pty Ltd & Anor - [2013] QDC 134

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Ivec Pty Ltd v TJP Designs Pty Ltd & Anor[2013] QDC 134

Ivec Pty Ltd v TJP Designs Pty Ltd & Anor[2013] QDC 134

DISTRICT COURT OF QUEENSLAND

CITATION:

Ivec Pty Ltd v TJP Designs Pty Ltd & Anor [2013] QDC 134

PARTIES:

IVEC PTY LTD (ACN 116 636 296)
(Respondent)

v

TJP DESIGNS PTY LTD (ACN 098 178 520)
(First Applicant)

and

JONATHON RICHARD PATTIE
(Second Applicant)

FILE NO/S:

2160 of 2011

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

21 June 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

4 December 2012

JUDGE:

Reid DCJ

ORDER:

The Amended Statement of Claim be struck out. The Applicant have leave to re-plead and further order that the applicant deliver such further Amended Statement of Claim by 10 am on 12 August 2013.

CATCHWORDS:

Pleadings – UCPR, r171– statement of claim – reference therein to expert report – whether permissible where report appears to be inadmissible – leave to re-plead

COUNSEL:

A Duffy for the Applicants

L Coman for the Respondent

SOLICITORS:

Thynne & McCartney for the Applicants;

Wellners Lawyers for the Respondent

  1. [1]
    The respondent has brought proceedings against the first applicant for damages for breach of contract and/or negligence, and also pursuant to the provisions of s 87 of the Trade Practices Act, and against the second applicant for damages pursuant to s 87 of the Trade Practices Act.  It also seeks interest and costs.
  1. [2]
    The application before me is for orders that the respondent’s Amended Statement of Claim (“ASOC”) or, alternatively, paras 7, 8, 9, 10, 14, 16, 19, 20, 21, 23, 24, 28, 29, 30 and 31 thereof be struck out pursuant to r 171 of the Uniform Civil Procedure Rules (“UCPR”). In the alternative the applicants’ seek orders pursuant to r 161 of the UCPR that the respondent provide further and better particulars of the allegations in those paragraphs (other than para 7). In the event that orders are made under r 171 the applicants do not oppose the respondent being given an opportunity to re-plead.
  1. [3]
    Rule 171 provides relevantly as follows:
  1. (1)
    This rule applies if a pleading or part of a pleading—
  1. (a)
    discloses no reasonable cause of action or defence; or
  1. (b)
    has a tendency to prejudice or delay the fair trial of the proceeding; or
  1. (c)
    is unnecessary or scandalous; or
  1. (d)
    is frivolous or vexatious; or
  1. (e)
    is otherwise an abuse of the process of the court.”
  1. [4]
    In considering the effect of r 171 it is also necessary to have regard to r 149 which requires, inter alia, that pleadings must contain a statement of all the material facts on which the party relies, but not the evidence by which the facts are to be proved, and must state specifically any matter that, if not stated specifically, may take another party by surprise. If damages are claimed, r 155 provides that the pleading must also state the nature and amount of the damages claimed and must include the following particulars of the party’s pleading:  (a) the nature of the loss or damage suffered; (b) the exact circumstance in which the loss of damage was suffered; and (c) the basis on which the amounts claimed has been worked out or estimated. Rule 157 provides that a party must include in a pleading the particulars necessary to define the issues for, and prevent surprise at, the trial and to enable the opposite party to plead.
  1. [5]
    The respondent’s claim relates to the destruction of a pontoon which it is said broke in half nine weeks after it was moored in Moreton Bay near Nudgee Beach. The second applicant is said to be an accredited ship and naval designer who designed the pontoon. The second applicant is the sole director of the first applicant, through which he conducted his business.
  1. [6]
    The applicants’ submissions categorised their complaints into four broad headings, namely:
  1. The alleged agreement (paras 8, 9, 10, 14, 16, 19 and 20 of the ASOC);
  1. The representation case (paras 21, 23 and 24 thereof);
  1. The damages claim (paras 28, 29, 30, 31); and
  1. Other matters (para 7).
  1. [7]
    It is convenient to deal with the matters under those broad headings.

The alleged agreement

  1. [8]
    The essence of the agreement is said to be on or about 20 June 2007 the respondent retained the first applicant to design and document a pontoon which would house a wave power generator. Ivan Voropaev, who was and is the sole director of the respondent had invented and built that generator. The respondent pleads in para. 8 of ASOC that the second applicant on behalf of the first applicant orally agreed to the Design Agreement Terms, set out in para 9 of ASOC, at each of two meetings, one in mid-June 2007 and the second within a week thereof. The second applicant is the sole director of the first applicant. Curiously the respondent, giving particulars of the Design Agreement, says it is constituted not only by those oral terms set out in para 9 but also by a document referred to in para 12 as the Design Estimate, and which is said to be a tax invoice/estimate of 22 June. In para 8 of ASOC it is said that document “distils the Design Agreement Terms”. Para 9 alleges the agreement contains “the following express or implied terms”, which are then set out.
  1. [9]
    Paragraph 11 sets out a number of relatively uncontentious duties said to be cast upon the first applicant by reason of its engagement.

Paragraphs 8, 9 and 10

  1. [10]
    It is necessary to set out these paragraphs of ASOC in full, because they are essential to a proper understanding of the basis of the applicants’ complaints. They provide:

“8. On or about 20 June 2007, IVEC (through Mr Vorapaev) retained TJP (through Mr Pattie) to design and document a pontoon which would house a Wave Power Generator (herein called ‘the Design Agreement’).

Particulars

  1. (a)
    Mr Pattie orally agreed to the Design Agreement Terms set out in paragraph 9 of the Statement of Claim, both at the First Meeting and the Second Meeting;
  1. (b)
    Further, a copy of the Design Estimate provided by Mr Pattie on or about 22 June 2007 to Mr Vorapaev distils the Design  Agreement Terms, as set out in paragraph 9(a), 9(c), 9(d), 9(f) and 9(g) of the Statement of Claim, in writing.
  1. The Design Agreement contained the following express or implied terms (herein called ‘the Design Agreement Terms’):
  1. (a)
    TJP would prepare the requisite design construction and stability documentation to enable a pontoon to be constructed to house the Wave Power Generator (herein called ‘the Pontoon’);
  1. (b)
    the design of the Pontoon shall be such that it shall:
  1. (i)
    be stiff
  1. (ii)
    not roll on waves in open waters; and
  1. (iii)
    have capacity to have on board 6 persons at any one time;
  1. (c)
    further, or alternatively, the design of the Pontoon shall be such that it would be assessed to the following code/standard and class (herein called ‘the Requisite Class’):
  1. (i)
    Uniform Shipping Laws code;
  1. (ii)
    2(c) – Restricted Off Shore Operations to 15 nautical miles from shore;
  1. (iii)
    6 crew.
  1. (d)
    TJP would obtain a Certificate of Compliance for Design for the Pontoon in respect of the Requisite Class pursuant to the Transport Operations (Marine Safety) Act 1994 (Qld) from Queensland Transport (herein called ‘the Certificate of Design’);
  1. (e)
    the design of the Pontoon would enable it to be safely moored for at least 6 months;
  1. (f)
    the design of the Pontoon would be able to withstand off-shore operations; and
  1. (g)
    IVEC would TJP the amount of $9,900.00 in consideration of TJP’s performance of the Design Agreement.
  1. To the extent that any aspect of the Design Agreement Terms in paragraph 9 were implied, they are:
  1. (a)
    necessary to give business efficacy to the Design Agreement; and
  1. (b)
    so obvious as to go without saying; and
  1. (c)
    further or alternatively, implied from:
  1. (i)
    the class of the Design Agreement, being an agreement for the design and documentation of a Pontoon; and
  1. (ii)
    the relationship created by the Design Agreement, being the relationship between client and designer.”
  1. [11]
    The applicants contend that it is unclear from para 8 of ASOC whether the respondent is alleging that the Design Agreement was wholly oral or partly oral and partly in writing. It is also submitted that the reference in para 8 to 20 June 2007 is inconsistent with the allegation in the particulars to para 6 of two meetings, the first “prior to 8 a.m. on a day in the middle of June 2007” and at a second meeting “within a week” of that first meeting.
  1. [12]
    The applicants also refer to the reference to “the Design Estimate” in subpara (b) of the particulars to para 8 and contend that it is not clear whether it is alleged that this document forms part of the Design Agreement or what the word “distils” in those particulars is intended to mean. The applicants say that this is particularly so having regard to the contents of para 12 of the pleading, which is in these terms:

“(12) On or about 22 June 2007, and pursuant to the Design Agreement, TJP provided IVEC with a Tax Invoice/Estimate No 631-01 (‘the Design Estimate’).”

  1. [13]
    The applicants assert that if, indeed, it was provided “pursuant to” the said agreement it cannot be part of the agreement itself.
  1. [14]
    The applicants also assert, with respect to para 9 of the ASOC that the respondent does not identify which terms are said to be express and which are implied. Further, they contend that if terms are to be implied the respondent should identify which are to be implied ad hoc, on the basis set out in subparas (a) and (b) of para 9 and which are implied as a matter of law as referred to in subpara (c). The applicants further assert that the meaning of para 10 of ASOC is unclear.
  1. [15]
    In response to those submissions the respondent contends in respect of para 8 that:
  1. (i)
    to strike out the pleading would be fatal to its claim; and
  1. (ii)
    that the pleadings are clear “in that the Design Agreement was oral, with part of the Design Agreement being in writing (the Design Estimate) and that the Design Agreement Terms arose from the two meetings earlier referred to.
  1. (iii)
    It is further contended by the respondent that “to the extent that any of the terms of the development agreement were implied” it is clearly pleaded that they are to be implied in relation to the express terms set out in para 9.

Consideration

  1. [16]
    In my view the allegations in para 8 of ASOC could mean either that the Design Agreement Terms were discussed and orally agreed to at each of the two meetings (i.e. an agreement was made at the first meeting, and then confirmed at the second), or was agreed to at the second of those meetings after discussion at the first. Furthermore, subpara (b) of the particulars might mean that subsequently the terms of the agreement were reduced into writing, being the Design Estimate, and provided by Mr Pattie to Mr Vorapaev on or about 22 June. The current pleading does not clearly express what is in fact the true position. The Design Estimate which is attached to Further and Better Particulars of the Statement of Claim dated 8 August 2011, appears to be a quote or estimate of the respondent but also contains a purported written agreement in a standardised form. Its true role in the formation of the contract is in my view not clear from the ASOC.
  1. [17]
    If the Design Agreement was made orally and in fact provided for delivery of a tax invoice/estimate in terms of the Design Estimate (including the standardised written form), as seems to be asserted in para 12, then such a term is not set out in para 9 of ASOC. In my view para 8(b) of ASOC leaves open the assertion that the respondent is alleging the Design Estimate forms part of the Design Agreement, but it could also mean the Design Estimate is a document which reflects the earlier oral agreement but does not constitute the agreement. The ASOC is, in my view, vague and uncertain as to the formation of the agreement and as to its terms.
  1. [18]
    In my view the respondent should be required to re-plead paras 8, 9 and 10 of the ASOC to make clear the manner in which it says the agreement was formed; that is whether it is entirely oral or partly oral and partly in writing, whether it was subsequently reduced into writing and provided to the applicant and, if so, that document should be identified. Its relevant terms should be clearly spelled out. The pleadings should clearly identify which terms were expressly agreed and which, if any, were implied. The basis that such implication in respect of each such term should be pleaded. The role of the Design Estimate of 22 June should be clearly identified.
  1. [19]
    In my view the respondent might also need to re-plead the terms of para 12 of ASOC to ensure that the allegation accords with its intended case, having regard to the contents of the existing subpara (b) of para 8 of ASOC.

Paragraph 14

  1. [20]
    Paragraph 14 of the ASOC provides as follows:

“14. The Non-Compliant Drawings:

  1. (a)
    specified a polyethylene structure that failed to provide structural support required to meet the Design Agreement terms of the Pontoon;
  1. (b)
    failed to incorporate:
  1. (i)
    a steel or aluminium frame along the length of the structure;
  1. (ii)
    in the alternative, a suitably designed aluminium support for the structure;
  1. (iii)
    further in the alternative structural support required to meet the Design Agreement Terms;
  1. (c)
    did not take into account cyclic loading;

Particulars

Expert opinion of Stuart Ballantyne of Sea Transport dated 29 July 2010

  1. (d)
    failed to specify or sufficiently specify welding design detail;

Particulars

Expert opinion of Stuart Ballantyne of Sea Transport dated 29 July 2010

  1. (e)
    were not capable of being assessed to the Requisite Class;
  1. (f)
    were not capable of obtaining a Certificate of Design to the agreed Code / Standard & Class as set out in the Design Estimate;

Particulars

In relation to paragraphs 14(e) and (f) Mr Pattie, the accredited person having supervision and management of the designing of the Pontoon, obtained approval from Maritime Safety Queensland for the Pontoon, as documented in the Certificate of Compliance for Design DGN 20806 (“the Certificate of Design”), to a standard lower than agreed the Pontoon would meet pursuant to the Design Agreement and / or the specifications set out in the Design Estimate, the terms of which are set out in paragraphs 9 and 10.

  1. (g)
    further, the Non-Compliant drawings and design of the Pontoon did not meet the new lower Code/Standard & Class nominated and assessed by Mr Pattie in the Certificate of Design as set out in paragraphs 16 and 18 of the Statement of Claim.”
  1. [21]
    The applicants assert that subparas (a) and (b) do not plead the matters alleged were a breach of the Design Agreement Terms or causative of any loss. Further, they say that subparas (c) and (d) are in breach of the requirement to plead material facts and that to particularise matters by reference to only an expert report is inappropriate.
  1. [22]
    The applicant relies, inter alia, on a decision of Lacaba Ahden Australia Pty Ltd v Bucyrus (Australia) Pty Ltd [2005] QSC 335, and in particular on [9]-[13] thereof. In that case McMurdo J said at [10]:

“[10] The applicant argues that particulars have a different function from evidence. The pleadings and particulars ought to properly define the case and thereby define the ambit of admissible evidence. And it says that having regard to the case indicated by the expert’s report, which is in the nature of a global claim, fairness requires that the applicant provide as much particularisation as is possible.

[11] There will be circumstances where a party can be fairly informed of the case put against it by a combination of a pleading, witness statements and a clear indication of the parts of those statements to be relied upon …. Conceivably there will be cases where the proposed evidence, reduced to writing, will state more concisely the case a party intends to advance than a lengthy set of particulars.

[12] However, a significant difficulty for allowing the proposed evidence to stand as particulars in this case is the inconsistency between the particulars which have been provided thus far and the proposed evidence. … 

[13] The applicant argues that its case as now found in the expert’s report, in relation at least to this component of its claim, is an uncomplicated one which can be shortly stated, and as explained by the applicant’s submissions, that seems to be so. But it then follows that the provision of substitute particulars should not be time consuming or expensive. Those (new) particulars would at least make the pleaded case conform to the proposed evidence. And they would provide a concise statement of the boundaries of the applicant’s claim, instead of that having to be discerned by reading the various parts of the proposed evidence in conjunction with solicitor’s correspondence and perhaps also a transcript of the argument upon this application.”

  1. [23]
    It is fundamental to the rules of pleading that a defendant must be able to readily ascertain from a Statement of Claim what specifically is being alleged against it. In my view it is not appropriate to particularise an allegation that a party is in breach by reference to an expert’s report at least where, as in my opinion here applies, it appears the report on its face does not comply with the provisions of the rules relevant to experts’ reports and where the principles referred to by Applegarth J in Thiess Pty Ltd & Anor v Arup Pty Ltd & Ors [2012] QSC 131 especially at [34], in respect of the admissibility of such reports have not been complied with. It can of course be appropriate to lift statements of factual allegations from such a report and perhaps by reference to the contents of the report to inform a party of the case it is required to meet. However to plead the matters in the way the respondent has in paras 14(c) and (d) of ASOC does not allow the applicants to know with the requisite precision what case they are required to meet. It is not the obligation of a defendant or of the court to try to ascertain from consideration of what are sometimes lengthy expert’s report and which itself might be the subject of objection to its admissibility, to try to ascertain  a plaintiff’s case. An example of non-compliance with the rules of admissibility in this case is that the report fails to identify the assumptions of primary fact on which the opinions contained therein are offered. Furthermore it seems to me the expert’s opinion in this case is merely stated as an expression of opinion and does not allow an examination of the intellectual basis for that opinion. In my opinion the report does not comply with the rules with respect to experts reports and is in its current form not admissible. To particularise the alleged breaches by reference to such a report is inappropriate.
  1. [24]
    Paragraphs 16 and 18 of the Amended Statement of Claim provide:

“16. The Pontoon, constructed pursuant to the Non-Compliant Drawings:

  1. (a)
    was inadequate for the purpose for which it was intended:
  1. (i)
    it could not be safely at least 6 months;
  1. (ii)
    it was totally incapable of withstanding off-shore operations.

Particulars

The Pontoon could not withstand in-shore and sheltered waters as:

  1. (i)
    the Pontoon rolled and pitched in waves at its mooring near Nudgee Beach
  1. (ii)
    the Pontoon failed as set out in paragraph 18 below.

…

  1. On or about 1 September 2009, the Pontoon, as constructed pursuant to the Non-Compliant Drawings (herein called “the Pontoon Failure”):
  1. (a)
    broke in half;
  1. (b)
    suffered a catastrophic failure, in that:
  1. (i)
    the main body of the structure failed;
  1. (ii)
    the aluminium support frame failed;
  1. (iii)
    both the upper and lower connection between the polyethylene body and the aluminium frame failed; and
  1. (iv)
    the transverse partition failed.
  1. (c)
    the Pontoon was a constructive total loss and incapable of being repaired;
  1. (d)
    the Pontoon had no, or no significant value, in its destroyed condition; and
  1. (e)
    further, the WPG housed within the Pontoon was no longer able to generate power.

Particulars

Expert opinion of Stuart Ballantyne of Sea Transport dated 29 July 2010.”

  1. [25]
    It can, in my view, be seen that those paragraphs are really no more than assertions that the Pontoon failed. The contents of para 18 are no more than general allegations of failure and consequential loss. In my view, if an expert’s report addresses the issues I have canvassed to ensure compliance with the judgment of Applegarth J in Thiess Pty Ltd & Anor v Arup Pty Ltd (supra)  (and, additionally, complies with the UCPR requirements of expert evidence reports) it should not then be difficult to draw from that report appropriate particulars of the inadequacy of design of the pontoon.
  1. [26]
    Paragraph 19 is a generalised assertion of breach reliant on what is previously alleged (by use of the terms “in the premises”). I have referred already to the inadequacy of the pleading and of the expert’s report referred to in it. Paragraph 19 does not enable the respondents to adequately know what they are said to have done which is in breach of the agreement.
  1. [27]
    Paragraph 20 raises an issue of failure of consideration but the claim for relief is for damages for breach. It is not at all clear what the allegation that “in the premises there was a total failure of consideration in (the first applicant’s) performance of the Design Agreement” is intended to mean.
  1. [28]
    In my view consideration of the contents of paras 8 to 21 of ASOC under the subheading “The Design Agreement” illustrates the inadequacy of that part of the pleading. In my view there is a clear need to re-plead the ASOC. Before that is done I think it imperative that the respondent’s expert be appraised of the relevant rules of the Uniform Civil Procedure Rules, being Part 5 of Ch 11 (especially r 428) and of the requirements for admission of such reports referred to by Applegarth J. The report should be redone to ensure compliance with those matters. When the report is redone it should not then be a difficult matter to re-plead in a way which complies with r 171. My strong impression is that difficulties in pleading the respondent’s case have in substantial part arisen because the report does not address the requirements for admissibility considered by Applegarth J. If it had done so, I am sure the pleading could have been drawn to comply with the requirements of UCPR as to pleadings.

The representation case

  1. [29]
    In order to understand the applicants’ objection to the respondent’s representation case it is necessary to recall that the respondent in para 8 of ASOC alleges that the first applicant agreed to the Design Agreement Terms during both the first meeting in mid-June 2007 and again during the second meeting. If that is true then the applicants submit that any representation subsequent to the first meeting necessarily could not have induced the respondent to enter into the agreement. In my view the pleading has clearly demonstrated inadequacies which stem from the assertion in para 8 of ASOC that the agreement was reached at both the first meeting and the second meeting and, which it is said, is “distilled” in the Design Estimate of 22 June 2007. Care needs to be given to the proper formulation of the formation of the agreement, and if this is done para 21 can then be redrawn in a way consistent with proper allegation about the formation of the agreement.
  1. [30]
    It is also important to note that para 5 of the ASOC positively asserts that the second applicant possessed:
  1. (a)
    training, skill or expertise in the field of naval architecture;
  1. (b)
    academic qualifications as a naval architect; and
  1. (c)
    extensive experience working as a naval architect.

Those matters are referred to in the Amended Statement of Claim as “Mr Pattie’s expertise”.

  1. [31]
    Paragraph 24 appears to be inconsistent therewith alleging that he, Mr Pattie:

“… was not a competent naval architect to design and document the Pontoon housing the WPG in that he did not have the requisite experience or ability to design a structure that:

  1. (i)
    was suitable and appropriate for the purpose for which the Pontoon was intended:
  1. (A)
    could be safely moored for not less than six months;
  1. (B)
    could be used in restricted off shore operations up to five nautical miles from shore;
  1. (C)
    could be capable of being assessed to the Requisite Class; and
  1. (D)
    was capable of obtaining the Certificate of Design.”
  1. [32]
    It may well be that this is ultimately a matter of little consequence since para 6 of ASOC is an assertion that the second applicant held himself out as having such expertise but the pleading could undoubtedly be better expressed by removing such inconsistent assertions.
  1. [33]
    Paragraph 24 asserts that each of the representations set out in para 21 were false, misleading or deceptive. The particulars thereto assert that the second applicant was not competent to design a pontoon suitable for the purposes set out in para 21(c) of ASOC. There is, as the applicants point out, no factual basis for that assertion. It appears in my view to be a conclusion drawn from the fact that the Pontoon failed after being in the water for a short time. If the applicant wishes to make out a claim for misleading or deceptive conduct arising from the second respondent’s alleged lack of expertise despite representing that he had such expertise the factual allegations need to be properly pleaded.
  1. [34]
    Paragraph 23 alleges the representations were made:
  1. (i)
    in trade or commerce within the meaning of that term as used in s 52 of the Trade Practices Act; and/or
  1. (ii)
    in connection with the supply or possible supply of goods within the meaning of s 53 of the Trade Practices Act.
  1. [35]
    It is clear that the pleading relates to the provision of services and not to goods. The Amended Statement of Claim should be amended to refer to that fact.

The damages claim

  1. [36]
    The respondent alleges that the Pontoon was by reason of the applicants’ breach completely destroyed and of no consequent value. It is then alleged in para 30 that the cost of building a pontoon capable of housing the wave power generator is $660,000. In para 31 it is said the respondent incurred expenses of $203,204.29 being design ($3,473.53), construction ($168,169.55), launching and testing ($16,409.41) and what I shall describe as salvage and associated expenses ($15,125). The respondent then claims $660,000 damages for both breach of contract and for negligence against the first applicant.
  1. [37]
    That applicants object to this pleading on the basis that the measure of damages for breach of contract is the amount that would place the respondent in the position it would have been in had the contract been performed in accordance with its terms. The first applicant contends that on that basis that respondent would have incurred costs of $660,000 to have built a suitable pontoon in any case, and in fact expended much less. Accordingly it argues that the claim for relief in contract is misconceived.
  1. [38]
    The applicants also assert the measure of damages for breach of the Trade Practices Act “does not properly reflect what is alleged to have been the causative effect of the alleged contravening conduct”. It is said that the damages claim does not attempt to identify what damages are said to flow from the fact it would otherwise have engaged another naval architect to design and document the Pontoon.
  1. [39]
    I am unpersuaded by this latter argument. In my view it is reasonably clear the respondent is asserting that if a new and adequate design was obtained from an appropriately qualified naval architect the cost of such a pontoon would be some $660,000 and that the $203,204.49 particularised in para 31 has been entirely lost. Consequently such sum is said to be the damages under the Trade Practices Act said to flow from the need to now engage a new designer and to build the pontoon.
  1. [40]
    The applicants also submit that the use of the term “further” in the prayer for relief is superfluous and could be considered to mean that the damages sought in each of paras (a), (b) and (c) of the prayer for relief are additional. In my view there is no basis for believing that is likely to cause difficulty in the applicants in understanding the nature of the claim against it.
  1. [41]
    I conclude that the claim for damages for breach of contract must be properly pleaded to reflect the proper measure of damages. In my view the current pleading misconceives the proper approach to the assessment of such damages.

Other matters

  1. [42]
    The applicants assert that para 7 which is an allegation about the constitution of the builder of the Pontoon is superfluous since no allegation is made against the builder. The respondent says that the allegation is uncontroversial and, by means of background, information which does not prejudice the expeditious determination of the case.
  1. [43]
    In my view, whilst what the respondent contends is correct, the paragraph is indeed superfluous and can be safely removed. I do so only because of the order that I intend to make in respect of other aspects of ASOC, and of itself I would not require an amendment of ASOC on that ground.
  1. [44]
    In my view, because the ultimate Further Amended Statement of Claim may take on a significantly different character from the current ASOC, especially once an appropriate expert’s report is obtained, the best approach is to strike out the Statement of Claim and to give the respondent leave to re-plead.
  1. [45]
    In view of my belief that the new pleadings will require reconsideration of the expert’s report on which the respondent relies I propose to give the respondent eight weeks to do so. I shall order that a Further Amended Statement of Claim should be served by 10 a.m. on Monday 12 August.
  1. [46]
    I give the parties liberty to apply in respect of any consequential orders and will hear argument as to costs.
Close

Editorial Notes

  • Published Case Name:

    Ivec Pty Ltd v TJP Designs Pty Ltd & Anor

  • Shortened Case Name:

    Ivec Pty Ltd v TJP Designs Pty Ltd & Anor

  • MNC:

    [2013] QDC 134

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    21 Jun 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Lacaba Ahden Australia Pty Ltd v Bucyrus (Australia) Pty Ltd [2005] QSC 335
1 citation
Jump To
Cite 1 - [2005] QSC 335
Thiess Pty Ltd v Arup Pty Ltd [2012] QSC 131
1 citation
Jump To
Cite 1 - [2012] QSC 131

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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