Weipa Hire Pty Ltd v Commonwealth of Australia
[2014] QSC 254
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- Unreported Judgment
- Weipa Hire Pty Ltd v Commonwealth of Australia[2014] QSC 254
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Weipa Hire Pty Ltd v Commonwealth of Australia[2014] QSC 254
Weipa Hire Pty Ltd v Commonwealth of Australia[2014] QSC 254
SUPREME COURT OF QUEENSLAND
PARTIES: | (plaintiff) |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 10 October 2014 |
DELIVERED AT: | Cairns |
HEARING DATE: | 4 July 2014 |
JUDGE: | Henry J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the parties entered into an agreement for the defendant to use part of the plaintiff’s premises in exchange for payment – where the plaintiff initiated proceedings claiming it was not paid fees by the defendant for its continued use of the premises beyond the conclusion of the agreement – where the defendant claims inadequate facts have been pleaded giving rise to the causes of action within the statement of claim – whether the plaintiff’s statement of claim ought be struck out Uniform Civil Procedure Rules 1999 (Qld) r 161, r 171 Bond Corporation v Thiess Contractors Pty Ltd (1987) 14 FCR 215, applied Bruce v Odhams Press Ltd [1936] 1 KB 697, applied Bramwell v Bramwell [1942] 1 KB 370, applied The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, cited |
COUNSEL: | A Wheatley for the applicant/defendant MA Jonsson for the respondent/plaintiff |
SOLICITORS: | Clayton Utz for the applicant/defendant MacDonnells Law for the respondent/plaintiff |
[1] The defendant makes application for an order that the statement of claim, filed on 6 December 2013, be struck out or alternatively an order that the plaintiff provide further and better particulars of a number of paragraphs in the statement of claim. Ancillary orders are also sought.
Background
[2] The plaintiff was lessee of the old Weipa Hospital. It seemingly used the facility to operate barracks.
[3] The plaintiff entered into a written agreement with the defendant’s Department of Immigration to provide its personnel with four types of services for a fee. Those services are not pleaded but they were accommodation, meals, cleaning and laundry facilities.
[4] The agreement, as amended by a deed of variation, commenced on 19 May 2011 and ended on 30 June 2012, although the defendant had an option to extend by six months beyond that by giving prior written notice.[1] It is not suggested any such notice to extend was given however the plaintiff alleges the defendant remained in occupancy of the premises until 19 November 2012.[2] As much might not be in dispute because there is no complaint that the defendant failed to pay for the plaintiff’s services up until then.
[5] The plaintiff’s complaint is that it was not paid fees by the defendant beyond that era notwithstanding that the defendant allegedly continued to request and utilise the plaintiff’s service until 20 April 2013.
[6] The amount allegedly owing in respect of that era, from 18 November 2012 to 20 April 2013 (“the claim period”), is the accumulation of a fortnightly fee of $169,134.30 totalling $1,860,477.30.
[7] The plaintiff claims that amount as:
- agreed remuneration for the defendant’s receipt, use and enjoyment of the benefit of the enjoyment of the plaintiff’s services during the claim period (“the contract claim”); or
- reasonable remuneration for those services (“the quantum meruit claim”); or
- mesne profits for the defendant’s continuing occupancy and possession of the premises during the claim period (“the mesne profits claim”).
The issue
[8] The defendant applicant submits none of those three causes of action are disclosed by the plaintiff’s pleading, with the consequence that the statement of claim should be struck out pursuant to r 171 of the Uniform Civil Procedure Rules (“UCPR”) as disclosing no reasonable cause of action. The complaint is not that the types of causes of action cannot be ascertained from the pleading but that inadequate facts have been pleaded to give rise to those causes of action.
[9] While each of the categories of claim involves different elements they are premised on essentially the same critical allegation of fact: that the defendant remained in use and or possession of the premises during the claim period. However on the plaintiff’s own case, within 11 days of the commencement of the claim period the defendant’s personnel had entirely vacated the premises[3] and were no longer physically using the plaintiff’s accommodation or other services. In the absence of such evidence of actual possession or use it appears the plaintiff will seek to prove its critical allegation of fact circumstantially, as some form of constructive use or possession. That is, the critical allegation of fact is a conclusion the court will be asked to infer from other facts. The real issue in this application is whether the statement of claim adequately pleads what those other facts are.
[10] The adequacy of pleading is principally regulated by r 149 of the Uniform Civil Procedure Rules (“UCPR”) which relevantly provides:
“149 Statements in pleadings
(1) Each pleading must—
(a) be as brief as the nature of the case permits; and
(b) 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
(c) state specifically any matter that if not stated specifically may take another party by surprise ...”
[11] Rule 149 does not distinguish between direct and circumstantial evidence cases. It emphasises the materiality of facts rather than the evidence by which facts will be proved. What then is the effect of r 149 where, as here, a party pleads a conclusion of fact that will be alleged at trial to arise as a matter of inference from other facts? It is that the party must plead such of those other facts as will be relied on as material to sustaining the inference or as would take the other party by surprise if not pleaded.
[12] The statement of claim is brief. It relevantly pleads:
“2.By a written agreement made between the Plaintiff and the Defendant on 20 April, 2011 (the ‘Agreement’), the Defendant requested the Plaintiff to make available certain services to the Defendant (the ‘services’), including the non-exclusive use and possession of parts of the Premises for the Defendant (represented by the Department of Immigration and Citizenship) and the Defendant’s personnel, and the Plaintiff agreed to make available the requested services to the Defendant for certain agreed rates of remuneration during the currency of an agreed term.
3.From the expiration of the term of the Agreement, the Defendant, by its conduct, continued to request, receive, use and enjoy the benefit of the services made available by the Plaintiff until 20 April, 2013.
- That the Defendant continued to request and utilise the services until 20 April, 2013 is evidenced by or may be inferred or implied from the Defendant having continued:
(a) until 19 November, 2012, to remain in occupancy of the premises;
(b) until November, 2012, to endeavour to negotiate and reach agreement with the Plaintiff upon variations of the terms under which the Defendant would continue to receive, use and enjoy the benefit of the services made available by the Plaintiff;
(c) until 18 November, 2012, to pay the Plaintiff the agreed rates of remuneration for the ongoing receipt, use and enjoyment of the services by the Defendant; and
(d) until 19 April 2013, to remain in use and possession of the premises by the Defendant’s continuing retention of keys to the premises.
- Alternatively, if (which is denied) the Defendant ceased to request and make use of the services from 18 November, 2012 or thereafter, by the Defendant’s failure to return the keys to the premises until 19 April, 2013 the Defendant remained in possession of the premises from 19 November, 2012 until 19 April, 2013 without the lawful consent and authority of the Plaintiff and thereby committed a continuing trespass in and upon the premises during that period.
- In the premises, the Defendant is indebted to the Plaintiff for $1,860,477.30 as the agreed and further, or alternatively, reasonable remuneration for the Defendant’s receipt, use and enjoyment of the benefit of the services between 18 November, 2012 and 20 April, 2013 calculated as follows: ...(calculations omitted)
- Alternatively, the Defendant is liable to the Plaintiff for $1,860,477.30 for mesne profits for the Defendant’s continuing occupancy and possession of the premises from 19 November, 2012 until 19 April, 2013, calculated in the manner particularised in the last preceding paragraph.”
[13] The statement of claim does not plead what services the defendant received during the claim period. It is implicit in paragraph 4(a) that the plaintiff does not even allege the defendant was physically occupying the premises throughout the claim period. The only conduct alleged in paragraph 4 that is said to have actually occurred during the claim period is the defendant’s retention of keys to the premises until 19 April 2013. By that act the defendant is alleged to have remained “in use and possession of the premises”. Similarly paragraph 5 identifies the failure to return the keys until 19 April 2013 as the apparent basis for pleading the defendant remained “in possession of the premises” during the claim period.
[14] Despite the apparently pivotal importance to the claim of an alleged retention of or failure to return keys, the only fact pleaded about the keys is that they were retained or not returned.
[15] That bare assertion is not an adequate factual foundation to sustain the critical inference that the defendant thereby remained in use and or possession of the premises. Nothing is pleaded as to what parts of the premises the keys were for, the circumstances under which the defendant came into possession of the keys, the circumstances under which the defendant was entitled to retain possession of the keys, the circumstance or notice that obliged the defendant to return the keys or the consequences for the plaintiff of the failure to return the keys.
[16] The present obscurity of how the failure to return the keys founds liability makes it impossible to stipulate that those exact facts and only them need to be additionally pleaded. However, facts of that kind will inevitably have to be relied upon in combination to support the critical inferences of use and or possession giving rise to this $1.8 million claim. They are for that reason facts of a kind which r 149(1)(b) and (c) of the UCPR require to be pleaded; that is, they are material facts as well as matters that may take the defendant by surprise if not specifically stated.
[17] The inadequacy of the statement of claim’s pleading of the conduct of the defendant which is said to give rise to the three types of claim pleaded is also exposed by brief consideration of each of those claims.
The contract claim
[18] The written agreement ended on 30 June 2012. The plaintiff submits the pleaded consensus between the parties as to the continuing use and possession of the premises beyond then may be inferred from the conduct of the parties.[4] At first blush, that submission is supported by the statement of claim’s pleading at paragraph 4 that the defendant remained in occupancy, endeavoured to negotiate and reach agreement with the plaintiff on variations of the defendant’s continued use of the plaintiff’s services and continued to pay the agreed rates of remuneration. However, all of that alleged conduct ceased prior to or soon after the commencement of the claim period. It is not apparent from the pleading how any of that conduct supports the existence of a contract during the claim period. It is not pleaded that there was a new agreement or variation of the old agreement extending into the claim period.
[19] The only conduct pleaded at paragraph 4 of the statement of claim that is alleged to have occurred during the claim period is the retention of or failure to return the keys to the premises. The deficiency in respect of that feature of the pleading has already been discussed.
[20] The plaintiff’s submissions emphasised the “critical material fact upon which liability depends is not so much the variation of the underlying contract, but instead the continued provision of the benefit thereunder”.[5] However the pleading does not adequately identify what benefit previously provided by the contract continued to be provided. Indeed it is not pleaded that during the claim period the defendant actually received the benefit of any of the four services contracted for under the expired contract. Nor is the nature of those services pleaded.
[21] In short, such conduct as has been pleaded in support of an inference of an ongoing agreement in respect of the claim period is deficient by reason of an absence of pleading of material facts sufficient to sustain that inference.
The quantum meruit claim
[22] In support of its alternative claim on a quantum meruit, the plaintiff submits the only essential matter to be pleaded is that the service for which remuneration was sought was rendered under a common understanding the plaintiff would be remunerated.[6] However, because that purported common understanding is apparently pleaded as arising as a matter of inference, the inadequacies in the pleading already identified apply in the same way to this aspect of the claim.
[23] The statement of claim does not plead how the defendant is said to have been enriched or benefitted, save for alleging that the defendant remained in use and possession of the premises by retaining the keys. As already discussed inadequate material facts have been pleaded in support of the inference that the defendant remained in use and possession of the premises.
The mesne profits claim
[24] The defendant submits a claim for mesne profits is an action confined to a landlord’s claim for damages against a tenant who becomes a trespasser on the premises due to the determination of the lease.[7] For this reason alone the defendant contends that no reasonable cause of action has been pleaded in respect of such a claim. It highlights in particular that the written agreement was not a lease but rather an agreement to provide services.
[25] The plaintiff submits a claim for mesne profits while commonly enough associated with a claim for damages by a landlord against a tenant, is not confined to that circumstance. It submits the defendant’s “continuing possession of the premises was no less a trespass than that of a tenant who has wrongly held over after the expiration of a lease term”.[8]
[26] It is unnecessary to here determine whether the claim for mesne profits is misnamed. An action for mesne profits is a species of the tort of trespass to land.[9] Even if misnamed this claim is founded upon an alleged trespass by the defendant. That trespass is alleged to take the form of the defendant remaining in possession of the premises, an inference allegedly deriving from a failure to return keys. The statement of claim’s deficiency in pleading material facts sufficient to give rise to that inference therefore infects this claim as well.
Further and better particulars
[27] The above review of the statement of claim’s deficiency in respect of the three forms of claim demonstrates the problem pervading the pleadings is a failure to adequately plead the facts material to sustaining the inferences which each of the claims relies upon. A consequence thereof is that the pleading does not disclose a reasonable cause of action in any of the three forms of claim asserted.
[28] In the face of this problem the defendant sought further and better particulars. The plaintiff responded with a 17-page document purportedly providing further and better particulars. The additional facts particularised therein give no cause for optimism that the plaintiff’s claim for $1.8 million has a more compelling foundation than a failure to return keys. However this is a strike out application, not an application for summary judgment. It is unnecessary to here determine whether the further and better particulars if pleaded in the statement of claim would remedy the deficiencies discussed above.
[29] It is not appropriate to use particulars as a substitute for pleading material facts.[10] In some cases no difficulty may flow from a technical failure to plead material facts that have at least been provided by way of further and better particulars. However, this is not such a case. The failure to plead material facts pervades all three causes of action claimed. The defence cannot be properly pleaded and the issues properly joined in the pleadings unless the fundamental deficiency in the pleading of the statement of claim is properly addressed by re-pleading.
Conclusion
[30] In this case the pleading’s failure to disclose a reasonable cause of action in any of the three forms of claim asserted is not a deficiency that can be readily cured by orders tinkering with only some paragraphs of the statement of claim.
[31] The appropriate course is to strike out all of the statement of claim pursuant to r 171. The defendant does not submit against the plaintiff being given leave to re-plead its statement of claim. Leave should be given.
[32] The parties are agreed as to the appropriate form of orders in consequence of my finding. While costs should on the face of it follow the event, I will afford the plaintiff an opportunity to be heard by reserving costs.
Orders
[33] My orders are:
1. The plaintiff’s statement of claim filed 6 December 2013 is struck out.
2. The plaintiff has leave to file and serve an Amended Statement of Claim by 4 pm on 28 November 2014.
3. The defendant file and serve a Defence to the Amended Statement of Claim by 4 pm on 30 January 2015.
4. The plaintiff file and serve any Reply by 4 pm on 20 February 2015.
5. Disclosure by the parties is to be completed by 27 March 2015.
6. Costs reserved.
Footnotes
[1] Exhibits to affidavit of Lana Kelly pp 32 & 48.
[2] SOC [4](a).
[3] Per the plaintiff’s further and better particulars. The fees attributable to that period would be a trivial proportion of the total claimed.
[4] Plaintiff’s written submissions [7]. The fees potentially attributable to that 11 days would be a trivial proportion of the total claimed.
[5] Plaintiff’s written submissions [9].
[6] Plaintiff’s written submissions [17].
[7] Citing The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17.
[8] Plaintiff’s written submissions, [24].
[9] Bramwell v Bramwell [1942] 1 KB 370, 373.
[10] Bruce v Odhams Press Ltd [1936] 1 KB 697; Bond Corporation v Thiess Contractors Pty Ltd (1987) 14 FCR 215.