True Timbers Pty Ltd (in liq) v Grand Eagle Constructions Pty Ltd
[2014] QDC 221
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- Unreported Judgment
- True Timbers Pty Ltd (in liq) v Grand Eagle Constructions Pty Ltd[2014] QDC 221
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True Timbers Pty Ltd (in liq) v Grand Eagle Constructions Pty Ltd[2014] QDC 221
True Timbers Pty Ltd (in liq) v Grand Eagle Constructions Pty Ltd[2014] QDC 221
DISTRICT COURT OF QUEENSLAND
CITATION: | True Timbers P/L v Grand Eagle Constructions P/L & Anor [2014] QDC 221 |
PARTIES: | TRUE TIMBERS PTY LTD (IN LIQUIDATION) v GRAND EAGLE CONSTRUCTIONS PTY LTD and PETER JIN |
FILE NO: | 2335/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 30 September 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 September 2014 |
JUDGE: | Butler SC, DCJ |
ORDER: | The orders of the Court will be as follows:
|
CATCHWORDS: | PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – PARTICULARS – whether further and better particulars should be ordered PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – grounds for resisting production – whether clear and unambiguous reference to document |
COUNSEL: | P E O'Brien for the applicant J Ivanisevic for the respondents |
SOLICITORS: | Crouch & Lyndon for the applicant Hopgood Ganim as town agents for Kells Legal for the respondents |
- [2]This is an application by the plaintiff for the provision of further and better particulars of the defendants’ Defence and Counterclaim and for disclosure of documents referred to in the Defence and Counterclaim.
- [3]The applicant was a supplier of building materials to the building trade. The Statement of Claim alleges the first defendant entered into a commercial credit account contract with the applicant for the supply to it of hardware and timber. It is alleged the second defendant is the guarantor of the liabilities of the first defendant. The liquidators of the applicant company brought the proceedings seeking payment of the overdue credit account.
- [4]It appears from the Defence and Counterclaim that the respondents admit the supply of certain hardware and timber but deny it was supplied pursuant to the commercial credit account contract. Rather the respondents allege supply was made pursuant to a fixed price agreement as subsequently varied by agreement between the applicant and the first defendant.
- [5]By letter dated 31 July 2014 the applicant sought from the respondents particulars and disclosure of documents. On 12 September 2014 the applicant wrote making a formal request (“the Request”) pursuant to Ch11, Pt 8 of the Uniform Civil Procedure Rules 1999 (“the UCPR”) requesting the particulars sought and requesting the provision of documents pursuant to r 222 of the UCPR.
- [6]On 22 September 2014 the defendants responded supplying some further particulars and on 25 September 2014 filed a more extensive response in the Court. As a result of the particulars provided in that response the applicant no longer seeks some of the items in the Request but submits that the defendants’ response does not properly address the remaining items in the Request.
- [7]In this judgment a reference to “Request” followed by a number, is a reference to the numbered paragraphs in the applicant’s Request issued on 12 September 2014.
The issues on the application
- [8]Rule 157 of the UCPR provides that:
“A party must include in a pleading particulars necessary to:
- (a)define the issues for, and to prevent surprise at, the trial;
- (b)enable the opposite party to plead;
- (c)support a matter specifically pleaded under r 150.”
- [9]The applicant’s submissions identify that:
“The substantial defence of the defendants and their counterclaim appear to be that there is a fixed price agreement entered into between the first defendant and the plaintiff”.
The applicant says this agreement and its operation are fundamental to the case the applicant has been asked to meet. It is argued that the defence and counterclaim do not plead sufficient particulars as to the terms of the agreement.
- [10]The respondents resist the application on the basis that:
“(a) The request for particulars:
- (i)seeks unspecified and unnecessary details, which are not proper requests for particulars;
- (ii)seeks details which are unnecessary in light of the operation of r 152 of the Uniform Civil Procedure Rules 1999 (UCPR) and appear on the face of the defence and counterclaim;
- (iii)seeks “particulars” of the points of law, which are not susceptible to requests for particulars and have been pleaded in compliance with r 149 of the UCPR to not take the plaintiff by surprise; and
- (iv)seeks particulars of matters pleaded as the explanation for denial, which are not the fact in issue: Gilbert v Goodwin (No. 3) [2006] 1 Qd R 499.
- (b)No documents are mentioned within the meaning of r 222 of the UCPR to which the request relates.”
The specific requests
- [11]I now turn to the specific requests.
Request 1
- [12]Paragraph 8(b)(i) of the Defence states that the first defendant was engaged by JRBP Northgate Pty Ltd (JRBP Northgate) to build a building at 130 Nellie Street, Nundah, described as “the Project”. The Counterclaim disclosed the Project was to be carried out under “medium works commercial contract conditions” entered into on 10 January 2013 between JRBP Northgate and the first defendant (“the Construction Contract”).[1] It also appears from the Counterclaim that the plaintiff was provided with a copy of the Construction Contract and requested to quote on the supply of timber for the Project. Request 1 seeks further and better particulars of the Project and a copy of the contract documentation.
- [13]In my view the Statement of Claim adequately particularised the Project but the plaintiff is entitled under r 222 to a copy of the Construction Contract.
- [14]Under r 222 a party may be required to produce a document of which mention is made in the party’s pleadings. Rule 222 applies only where there is a clear and unambiguous reference to a document. Implication or inference as to the existence of a document is insufficient.[2] Here the Defence and Counterclaim make clear reference to the existence of the Construction Contract relating to the Project and the reference to a “copy” of the Construction Contract unambiguously confirms it took the form of a document. I will order provision of the Construction Contract document.
Requests 2, 3 and 4
- [15]Paragraph 8(b) of the Defence states as follows:
“(i) …
- (ii)in or about June 2013, Robert Marangone (Mr Marangone), on behalf of the first defendant, requested that the plaintiff provide it with a fixed price quote to supply all of the timber trusses and frames that the first defendant required to complete the project;
- (iii)Eddie Proietti (Mr Proietti), on behalf of the plaintiff, provided a quote to the first defendant to supply and deliver all the timber trusses and frames that the first defendant required to complete the project for a fixed price $650,000.00 plus GST (Quote);
- (iv)following a variation to the project design, the Quote was varied by Mr Proietti on behalf of the plaintiff to $670,000.00 plus GST (Varied Quote);
- (v)the Varied Quote was accepted by the first defendant (Fixed Price Agreement); …”
- [16]The sense of this pleading is that a quote provided on behalf of the plaintiff formed the basis of a contract between the parties for a fixed price of $650,000.00 plus GST and that agreement was subsequently varied to $670,000.00 plus GST.
- [17]There is no clear and unambiguous reference to the quote or agreement being in the form of a document. Accordingly the requirements for production under r 222 have not been met.
- [18]The applicants Request sought further and better particulars of:
- “(a)as far as the request was verbal, who the conversation was between and the words that were used in the conversation;
- (b)as far as the request was in writing, provide details of the written correspondence and provide the document pursuant to r 222 of the UCPR.”[3]
- [19]McGill DCJ in Kev Leamon Earthmovers Pty Ltd v Hammond Villages Pty Ltd[4] set out what should be alleged when a contract is pleaded:
“For such a claim the plaint should clearly allege:
- (a)who are the parties to the contract sued on;
- (b)the mechanism of the agreement, i.e. whether the contract:
- (i)was in writing;
- (ii)was made orally;
- (iii)was partly in writing and partly oral; or
- (iv)is to be implied from conduct;
- (c)the consideration for the agreement;
- (d)the material terms of the agreement;
- (e)the date on which the contract was made and the place at which it was made; and
- (f)that events have occurred which make the amount of the claim payable under the contract.”
- [20]The existence of a fixed price agreement is central to the respondents’ defence. It is necessary that the alleged contract be sufficiently particularised. That need not descend to the full content of conversations.[5] That is a matter for evidence at the trial. The respondents have given particulars of a conversation in which a representative of the first defendant accepted the varied quote. This establishes that at least part of the agreement was oral. However, the particulars should disclose whether any part of the agreement was in writing, or whether the agreement was wholly oral or made partly in writing and partly oral. Furthermore, the date and place of any offer or acceptance should also be supplied.
- [21]I will order accordingly.
- [22]The plaintiff submitted the Defence was ambiguous as to what was meant by “fixed price”. I am not persuaded by that submission. The reference in paragraph 8(b)(iii) of the Defence to a quote to “supply and deliver all the timber trusses and frames that the first defendant required to complete the Project for a fixed price of $650,000.00 plus GST” and the reference in the counterclaim to an agreement to charge “the first defendant a total price of $670,000.00 plus GST for the supply and delivery of all the timber trusses and frames that the first defendant required to complete the Project” makes clear the nature of the alleged contract. The allegation is that the total price of the plaintiff’s work for the Project was fixed.
Request 6
- [23]Paragraph 8(b)(vii) of the Defence alleges Mr Marangone informed a representative of the plaintiff that the first defendant had been overcharged. The applicant seeks particulars of the alleged overcharging. This conversation is important to the respondents defence. Accordingly the applicant is entitled to have the date and place of the conversation particularised.
- [24]The applicant submits the pleading is unclear on what basis overcharging is alleged. The Defence states the first defendant alleged it was overcharged “in that the invoices received from the plaintiff up to that point in time were in excess of $670,000.00 plus GST”. In my view and the nature of the allegation is adequately disclosed.
- [25]It is sufficient that an order be made for particularisation of the date and place of the conversation.
Requests 8 and 9
- [26]The Defence alleges the agreement and guarantee are “unenforceable in point of law”. Rule 149(2) provides:
“In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.”
- [27]The respondents in argument before me asserted that the material facts in support of these propositions of law may be found elsewhere in the pleadings. In a case where it was plainly obvious from the whole of the pleadings what material facts are relied upon in support of conclusions of law, further particularisation may not be required. That is not the case here. The applicant would be forced to speculate as to what material facts are being relied upon in support of the conclusions of law. Rule 149 also provides that pleadings must state specifically any matter that if not stated specifically may take another party by surprise.
- [28]I will order that the material facts which are relied upon in support of these conclusions of law be particularised.
- [29]The applicant also seeks particularisation of the legal basis for the alleged unenforceability of the agreement and guarantee. There is no obligation upon a party to plead a conclusion of law, and r 149(2) is really an exception to the previous position requiring that material facts not conclusions of law must be pleaded. Of course, should the basis for either of these conclusions of law fall within one of the categories in r 150, an obligation would fall on the respondents to plead that matter. In the circumstances, I do not consider it necessary at this time to make any further order in respect of this request.
Request 10
- [30]The applicant requests a copy of the NTF Quote referred to in the Counterclaim. This quote is alleged to have been supplied to the applicant with the Construction Contract so that the applicant could quote on supply of timber products for the Project. In paragraph 4 of the Counterclaim it is said a copy was supplied to the applicant. The existence of a document has been sufficiently disclosed in the pleadings for the purposes of r 222.
- [31]An order will be made for production of the document.
Request 12
- [32]This is a request under r 222 for a copy of a “demand” referred to in paragraph 16 of the Counterclaim. The pleadings do not disclose whether the “demand” was written or oral. The requirement for clear and unambiguous reference to a document for the purpose of r 222 has not been satisfied.
Orders
- [33]The orders of the Court will be as follows:
- Pursuant to r 161 of the Uniform Civil Procedure Rules 1999 (Qld), by 15 October 2014 the first and second defendants must provide to the plaintiff further and better particulars as follows:
- (a)In respect of paragraph 8(b)(iii) and (iv) of the Defence, particulars as to:
- (i)whether the provision of the Quote and Varied Quote was oral, in writing or partly oral and partly in writing;
- (ii)the dates and places of the provision of the Quote and Varied Quote;
- (iii)the date and place of the acceptance of the Varied Quote.
- (b)In respect of paragraph 8(b)(vii) of the Defence, particulars of the conversation between Mr Marangone and Mr Dobson as to:
- (i)the date on which the conversation took place;
- (ii)the place at which the conversation took place.
- (c)In respect of paragraph 14(b)(i) and (ii) of the Defence, particulars of the material facts which support the allegations that the agreement and guarantee are unenforceable in point of law.
- By 15 October 2014, the defendants must provide the plaintiff with disclosure of the following documents pursuant to r 222 of the Uniform Civil Procedure Rules 1999:
- (a)The Construction Contract referred to in paragraph 8(b)(i) of the Defence and paragraph 2 of the Counterclaim.
- (b)The NTF Quote referred to in paragraphs 3 and 4 of the Counterclaim.
- The plaintiff shall serve its reply and answer to the Defence and Counterclaim of the defendants within 14 days of receipt of the particulars and documents ordered at paragraphs 1 and 2 above.