Tremco Pty Ltd v Cadoe Pty Ltd
[2013] QDC 273
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- Tremco Pty Ltd v Cadoe Pty Ltd[2013] QDC 273
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Tremco Pty Ltd v Cadoe Pty Ltd[2013] QDC 273
Tremco Pty Ltd v Cadoe Pty Ltd[2013] QDC 273
DISTRICT COURT OF QUEENSLAND
CITATION: | Tremco P/L v Cadoe P/L T/as Cadoe Commercial Coatings [2013] QDC 273 |
PARTIES: | TREMCO PTY LTD (ACN 000 024 064) (plaintiff) v CADOE PTY LTD (ACN 135 978 504) Trading as CADOE COMMERCIAL COATINGS (defendant) |
FILE NO/S: | 2152/2011 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 24 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On papers – 21 October 2013 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | UCPR rr 229, 230 – interrogatories – ex parte application on the papers |
- [1]This is an application by the plaintiff pursuant to r. 229(1)(a) of the UCPR for the delivery of interrogatories to the defendant. The application is made pursuant to Part 6, Chapter 13 of the UCPR for the determination of the matters without oral argument and is made ex parte. The power to make such an order ex parte is contained in s. 230(1)(a) of the UCPR. Ancillary orders are also sought.
- [2]The action is one in which the applicant seeks the sum of $153,630.51 as money due to it for the cost of building materials which it alleges were ordered by the defendant and supplied by the plaintiff to various building sites where the defendant was performing building work.
- [3]It is unusual that the rules allow an ex parte application in a case in which the respondent is a party to existing proceedings and there would be no difficulty in serving it. The reason for the unusual position is probably found in the fact that the original practice under the rules of the Supreme Court was that a party was entitled to deliver interrogatories as of right. This right was circumscribed in 1999 by the UCPR but, perhaps to avoid unnecessary delay or expense, the right to bring an application ex parte was conferred. Whether a court allows that on a particular case is a matter for the discretion of the court. It can be seen that the court maintains a power to limit the party’s right to deliver interrogatories, especially as to number, since r. 229(2) provides that the number of interrogatories may be more than 30 only if the court directs a greater number be delivered.
- [4]In my view the question whether I should allow the plaintiff to deliver the interrogatories attached to the application is closely related to the question of whether I should give leave to allow the matter to proceed ex parte.
- [5]Although the pleadings are unusually voluminous (the Amended Statement of Claim is 87 pages in length and the First Further Amended Defence 91 pages, together with a vast array of documents annexed to it) the issues about which the plaintiff seeks to interrogate are limited.
- [6]The interrogatories, 14 in number, are in almost identical terms and each comprise three parts. In general terms each of the interrogatories provide as follows:
“In relation to the defendant’s admission in paragraph … of the First Further Amended Defence, that concrete waterproofing products were applied and/or used by the defendant at the … Site, state:
- (a)Which concrete waterproofing products were used?
- (b)Approximately how much of each of these concrete waterproofing products were used? and
- (c)On or about which dates these concrete waterproofing products were used.
- [7]The same question is repeated in respect of the admissions in sub paragraphs 7(a) to (o) of the First Amended Defence, except with respect to sub paragraph 7(i), and a reference is made to 14 different sites described in each such sub paragraph.
- [8]In his Affidavit in support of the plaintiff’s Application, the plaintiff’s solicitor, Samuel Barber attests to the fact that the pleadings indicate that whilst admitting the use of the plaintiff’s waterproofing products at each of the sites the defendant nevertheless denies ordering and receiving most of the goods the plaintiff alleges were so delivered. The vast majority of the value of goods said to be delivered ($153,630.51 out of $167,102.09) are in dispute. Mr Barber swears:
- That the defendant’s solicitor says that his client has no documents in its possession or under its control directly relevant to the allegation in issue.
- That the plaintiff has no “knowledge of the goods applied and/or used by the defendant at the job sites alleged and that it does not have any documents concerning that use in its possession or control”. That issue is said to be an issue in the proceedings.
- That the plaintiff says it knows of no one, other than the defendant, who might have such knowledge.
- [9]It appears to me in the circumstances that it is appropriate that this matter be determined ex parte and on the papers. The number and scope of the proposed interrogatories is not great and undue expense would be involved in requiring the application to be served on the defendant or for the parties to attend in person. It is appropriate that the matter be determined in the way the plaintiff seeks.
- [10]It also appears to me that there is not likely to be available to the applicant at trial any other reasonable and simple way of proving the matters sought to be elucidated. I note the interrogatories are directed to the use of product, rather than simply proof of what products were ordered by the defendant. I assume the plaintiff can prove that latter matter by reference to its invoices and delivery documents. I can see that the use of the product is relevant to the issues in the proceedings.
- [11]In the circumstances I am prepared to make an order generally as per the draft enclosed with the application. I require the interrogatories to be answered within 28 days of service of the interrogatories upon the defendant’s solicitors.
- [12]I therefore order:
- That the plaintiff have leave to deliver interrogatories in terms of the draft annexed to the application, for the examination of the defendant.
- That the number of interrogatories may be greater than 30.
- That the defendant answer the interrogatories within 28 days of service of the interrogatories upon the defendant’s solicitors.
- That the plaintiff’s costs of and incidental to the application be reserved.
- [13]In ordering, as I have, that the number of interrogatories exceed 30 in number I am conscious that it is reasonably arguable that the interrogatories proposed to be delivered are only 14 in number. Because of the fact that each contains three sub paragraphs, there is at least an argument that they exceed 30.
- [14]It seems to me that the interrogatories are entirely reasonable and appropriate and far from oppressive. They should be able to be answered relatively simply. I have made the order that they may be more than 30 in number because of these factors.