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  4. Devine Constructions Pty Ltd v Stowe Australia Pty Ltd - [2022] QSC 51

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Devine Constructions Pty Ltd v Stowe Australia Pty Ltd[2022] QSC 51

Devine Constructions Pty Ltd v Stowe Australia Pty Ltd[2022] QSC 51

SUPREME COURT OF QUEENSLAND

CITATION:

Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51

PARTIES:

DEVINE CONSTRUCTIONS PTY LTD ACN 114 040 845

(plaintiff/respondent)

v

STOWE AUSTRALIA PTY LTD ACN 002 556 603

(first defendant)

PROFIRE SYSTEMS PTY LTD ACN 081 006 724 (FORMERLY KNOWN AS PROFIRE (QLD) PTY LTD) AS TRUSTEE FOR PROFIRE (QLD) UNIT TRUST ABN 91 905 798 318

(second defendant/applicant)

BEYFIELD PTY LTD T/AS EAST COAST MECHANICAL SERVICES (IN LIQUIDATION) ACN 055 838 438

(third defendant)

PHILIP CHUN & ASSOCIATES PTY LTD ACN 007 401 649

(fourth defendant)

NOFIRE PTY LTD T/AS FYREGUARD ACN 114 404 278

(fifth defendant)

FILE NO/S:

3559 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2022

JUDGE:

Applegarth J

ORDER:

Paragraphs 97, 97A, 103, 126, 126A and 132 of the further amended statement of claim filed on 3 December 2021 are struck out.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the plaintiff sued five defendants for breach of contract or negligence arising out of construction of high rise towers – where the pleading alleges in a single lengthy paragraph breaches by the second defendant of numerous obligations that are said to have resulted in defects and other consequences – where defects are listed in hundreds of pages of schedules and thousands of pages of further particulars – where the second defendant alleges deficiencies in the plaintiff’s pleading of its contract claim – whether parts of the plaintiff’s contract pleading have a tendency to prejudice or delay the fair trial of the proceeding because they compress separate allegations of breach and consequences of breach

Uniform Civil Procedure Rules 1999 (Qld) rr 5, 146(1)(f)

Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281, cited

Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77, cited

Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248, cited

Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221, cited

Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, cited

COUNSEL:

M T Hickey for the applicant/second defendant

M Williams for the respondent/plaintiff

SOLICITORS:

DLA Piper Australia for the applicant/second defendant

Carter Newell for the respondent/plaintiff

  1. [1]
    This building litigation concerns the construction of high-rise unit developments.  The plaintiff, Devine, sues five defendants.  Three defendants brought strike-out applications that I heard on 31 March 2022.  The fourth defendant’s application and the fifth defendant’s application to strike out parts of the negligence pleadings against each of them succeeded, with leave to re-plead on terms.
  2. [2]
    The second defendant’s (Profire’s) application to strike out critical parts of the separate negligence claim against it also succeeded.  I gave ex tempore reasons on each of the three applications in relation to the negligence claims.
  3. [3]
    The balance of Profire’s strike-out application relates to Devine’s contract claim against it.  One aspect of Profire’s complaint concerns the pleading of the contract claim.  In essence, Profire submits that the further amended statement of claim (which I will refer to as the “FASOC” or “the pleading”) does not allow Profire to identify the basis upon which Devine asserts its entitlement to relief and the pleading has a tendency to prejudice or delay the fair trial of the proceeding.
  4. [4]
    Another aspect of Profire’s application alleges specific deficiencies in Devine’s amended particulars.  Profire says that the amended particulars are insufficient because Devine has only provided a plan reference based on an architectural drawing, which fails to identify the actual location of alleged penetrations into walls and floors, whereas these locations should be located by reference to a structural drawing.  Profire also says that other material provided to it in the form of particulars does not enable it to identify the actual location of the numerous alleged defects and to ascertain whether an alleged defect relates to one of the services it installed or was within the scope of its works.  Photographs are said not to correlate with the description of the alleged defect.  The amended particulars are said not to allow Profire to ascertain whether the alleged penetrations actually go through a fire rated wall and, therefore, whether a fire rated product was required.
  5. [5]
    Based on the affidavits filed by its solicitors on this aspect, Profire has legitimate grounds to complain.  I encouraged the parties at the hearing before me to work out a practical means by which the relevant locations can be better identified.  The parties were unable to resolve that practical matter on the day of the hearing, but I expect them to do so and to have a clear plan about a combination of drawings, photographs, descriptions and, if required, inspections to enable Profire to give instructions to its solicitors and, if necessary, engage an expert to inspect the alleged defects.
  6. [6]
    The first aspect of Profire’s application is the subject of these reasons.
  7. [7]
    Devine’s response to this aspect is that Profire’s complaints about its pleading are misconceived, that Devine has already provided abundant detail about the alleged defects, identified alleged breaches of contract and the defects that its breaches caused.  Devine’s particulars include 445 pages of schedules to its pleading, each page containing 15 defects, and a document that runs to about 3,400 pages. 

Principles governing the discretion to strike out pleadings

  1. [8]
    It is unnecessary to recite the relevant rules governing pleadings and particulars.  The parties agreed about the principles that apply to a strike-out application. 
  2. [9]
    I respectfully adopt the following statement of principle by the Chief Justice from Equititrust Limited v Tucker and Others (No 2) (“Equititrust”):[1]

“A pleading may be deficient, and liable to be struck out (for example on the ground that it has a tendency to prejudice or delay the fair trial of the proceeding) because it fails to fulfil the function of a pleading, which is to identify the issues which require the court’s attention and determination, provide a structure for the proceeding by providing the framework for disclosure and admissibility of evidence at trial, and to ensure a fair trial by giving the other parties fair notice of the case they must meet. The function of a pleading is discharged “when the case is presented with reasonable clearness”. Conversely, a pleading will be deficient if it is “ambiguous, vague or too general”, such that the other party does not know what is alleged against them.”

  1. [10]
    The Court of Appeal observed in Robert Bax & Associates v Cavenham Pty Ltd[2] that a pleading that is difficult to follow, objectively ambiguous, or creates difficulty for the opposite party, has the tendency to prejudice or delay the fair trial of the proceeding. 
  2. [11]
    It is not sufficient to comply with the pleading rules and the overriding obligation contained in rule 5 to say that the other party knows very well from the documents that it has been given, and perhaps from other sources, what the case against it is. 
  3. [12]
    In a complex case such as this it is impossible to make a pleading self-contained so that the body of the pleading includes all of the particulars, especially where the particulars are best provided in the forms of accessible and comprehensible schedules.  Still, the pleading and the particulars must perform the function required by the rules.  It is not sufficient to say that the other party will find all it needs to know somewhere in voluminous particulars. 
  4. [13]
    As Harper J observed in Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd,[3] pleadings are not only directed to the other party, which will have the assistance of some knowledge of the factual background of the case.  Pleadings have another important audience: the Court.  Therefore, they must be drawn so as to allow the tribunal of fact to know what the case is about, to case manage a complex case and to know, before the trial starts, the real issues that remain in dispute and that must be resolved.
  5. [14]
    In Equititrust[4] Bowskill J (as the Chief Justice then was) referred to certain observations of intermediate courts of appeal that, at least in the current era, courts do not take an unduly technical or restrictive approach to pleadings.  Contemporary approaches to case management are responsible, in part, for this change.  For example, in Barclay Mowlem Construction Limited v Dampier Port Authority[5] Martin CJ stated:

“Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.”

  1. [15]
    A distinction may be drawn between a lawyer looking at that pleading, “genuinely interested in knowing what issues are to be tried and the case that has to be met”, and who has no difficulty in ascertaining those matters, and a “lawyer interested in technical advantage, obfuscation and delay” who feigns ignorance of the substantive issues that emerge from the pleading.[6]
  2. [16]
    This matter is being case managed by a judge on the Supervised Case List.  That fact does not remove the need for the pleadings to perform the functions stated in the rules and the authorities.  In fact, compliance with those principles is all the more important in a case like this in which the particulars provided by Devine run to some 3,400 pages.  The pleadings should, in conjunction with the particulars, identify the material facts that are in issue and the substantial factual issues to be resolved at trial, and assist in case management.  This includes the process by which facts genuinely in dispute are to be proved and for a cost-effective and fair trial plan to be developed.  The fact that a case of this complexity necessitates lengthy schedules of defects and voluminous particulars tends to highlight the need for the proper identification from the pleadings of matters that are genuinely in contest. 
  3. [17]
    This means that all parties to this litigation (not merely Devine and Profire), a judicial officer managing the case and the trial judge should be in a position to know from reading the pleadings the main issues in dispute and the issues that are not in dispute.  In particular, the parties and the Court in this case should know:
  • whether Profire accepts that the relevant contracts imposed the numerous obligations that are stated in the pleading and, if not, why not;
  • the conduct of Profire, whether by act or omission, that is alleged to have caused or contributed to the defects that are contained in the schedules and other particulars;
  • the consequences of those defects;
  • when the pleaded breaches giving rise to a claim in contract are alleged to have occurred; and
  • the cost of remedying the alleged defects.
  1. [18]
    For reasons that I will develop, I do not consider that Devine’s breach of contract pleading, and paragraphs 97 and 126 in particular, provide a satisfactory framework for the further conduct of the proceeding.  Those paragraphs compress and confuse important allegations of breach and the consequences of breach.

Devine’s contractual claim against Profire

  1. [19]
    For present purposes I shall confine myself to the essence of Devine’s pleading against Profire.  It arises against the background of Devine having been engaged to design and construct Stages 1 and 2 of the relevant project, which consisted of two towers.  Devine was engaged by the principal under a contract dated 14 May 2010.  It was subsequently engaged under another contract dated 9 December 2011 in relation to the construction of Stage 4 of the project.
  2. [20]
    The FASOC was filed on 3 December 2021.  The schedules to the FASOC are lengthy and detailed.  Profire filed a defence to an earlier version of the pleading.  The body of the FASOC consists of 85 pages and 211 paragraphs.  One reason for its length is that it pleads five separate cases.  The first is against the first defendant which provided electrical services.  The second is the subject claim against Profire and concerns fire protection services.  The third defendant provided mechanical services.  The fourth defendant, which was not in a contractual relationship with Devine, is a certifier.  The fifth defendant, which was not in a contractual relationship with Devine, is alleged to have provided advice on fire resistance levels of completed works to the first defendant. 
  3. [21]
    Devine’s pleading against Profire commences at paragraph 72, which pleads that Devine entered into a subcontract with Profire dated 30 July 2010 to carry out works on part of the construction of Stages 1 and 2, being the design, supply, testing and commissioning of fire services to the two residential towers, a car park and a central retail building.  A similar pleading commences at paragraph 105 in relation to Devine’s Stage 4 subcontract with Profire.  I will concentrate on the first subcontract and Devine’s allegations in relation to it.
  4. [22]
    Paragraphs 73, 74 and 75 plead the documents that constituted the Profire subcontract.  Commencing at paragraph 76 and ending at paragraph 95B are extensive pleadings of alleged terms of the subcontract for Stages 1 and 2.  There are 26 separate paragraphs alleging terms and some of these paragraphs have sub-parts.  Some of the terms are not presently relevant since they relate to the giving of undertakings (paragraphs 78-80).  The remaining 23 paragraphs plead obligations of differing degrees of specificity.  Some are general, for example, that Profire would carry out its works in accordance with good building and construction industry practice.  Some are specific about particular aspects of the work.  Some fix the obligations by reference to conditions that required Profire to comply with a relevant Australian Standard or legislative requirement.  Some relate to terms that required things to be done before major works were to commence, such as a requirement that Profire, in liaison with Devine, was to determine the locations and sizes of all openings through floors, walls and roofs necessary for Profire’s performance of its works (paragraph 82).  Similarly, Profire was required to familiarise itself with the current state of construction of the work (paragraph 95) and to coordinate its works with other subcontractors (paragraph 87D).
  5. [23]
    Some of the pleaded obligations relate to specific requirements after work had been carried out, for example an obligation to fill, backfill, seal and reinstate all penetrations in connection with its work, so as to protect the integrity of the penetrated elements and to carry out riser protection and waterproofing as necessary (paragraph 89). 
  6. [24]
    Numerous pleaded terms deal with the manner in which work was to be undertaken or the materials to be used.  Paragraph 76 pleads that, unless expressly stated otherwise, materials were to be new and fit for the purpose for which they were to be used.  The pleaded terms include specific obligations to reinstate, repair or replace existing elements or services damaged as a result of Profire’s work (paragraph 94).
  7. [25]
    Importantly for limitation of actions purposes, paragraph 87 alleges that Profire was required to “promptly rectify every defect in its works” up to the completion of its works.  Paragraph 96 pleads that Profire’s work under the Stages 1 & 2 Subcontract was completed in accordance with the term pleaded at paragraph 86 (being a term about a final certificate) on or about 6 November 2012.  The parallel claim in relation to Stage 4 says that the Stage 4 subcontract works were completed on or about 15 November 2018. 
  8. [26]
    Paragraph 100A of the pleading, which I struck out, alleged that the need for Profire to coordinate its works with other subcontractors pursuant to the term pleaded at paragraph 87D “prevented Devine from supervising Profire’s work thereunder so as to enable Devine to identify any defective or omitted work at the time of its doing”.  For reasons that I gave on 31 March 2022, I concluded that this paragraph did not sufficiently explain why Profire’s need to coordinate its works prevented Devine from supervising Profire’s works.  It therefore had a tendency to prejudice or delay the trial of the proceedings. 
  9. [27]
    Paragraph 100B refers to the fact that Profire’s work was “progressively concealed” by the construction activity of other subcontractors, such that Devine was prevented from inspecting the work on a continuous and progressive basis so as to detect defective or omitted work that would render the building’s passive fire protection system non-compliant with the Building Code of Australia. 
  10. [28]
    Paragraph 103 alleges that the “Profire Stages 1 & 2 Defects first became evident or able to be discovered upon reasonable enquiry and inspection, during 2014”.

Paragraph 97 – the pleading of breach and its consequences

  1. [29]
    This paragraph featured in Profire’s submissions on its strike-out application.
  2. [30]
    There is a similar allegation at paragraph 126 about alleged breaches of the Profire Stage 4 Subcontract.  It is sufficient to set out paragraph 97 of the pleading since the same conclusions that I have reached apply to paragraph 126:
  1. 97.In breach of the terms of the Profire Stages 1 & 2 Subcontract, as pleaded at paragraphs 76, 77, 81 to 84 and 87 to 95B herein, Profire failed to carry out its works thereunder, and in accordance therewith, as pleaded and further particularised at Schedule C in the schedules hereto entitled H1 Defects and H2 Defects (the “Profire Stages 1 & 2 Defects”), these being further able to be described below:
  1. (a)
    A – Cluster Cables through Opening;
  1. (b)
    B – Service Penetration through Plasterboard;
  1. (c)
    C – Service Penetration through Plasterboard with Fire Collar;
  1. (d)
    D – Service Penetration through Plasterboard with Fire Board;
  1. (e)
    E – Service Penetration through Plasterboard with Fire Box;
  1. (f)
    F – Service Penetration through Plasterboard with Fire Board and Fire Collar;
  1. (g)
    G – Service Penetration through Plasterboard with Fire Box and Fire Collar;
  1. (h)
    H – Service Penetration through Pre-Cast;
  1. (i)
    I – Service Penetration through Pre-Cast with Fire Collar;
  1. (j)
    J – Service Penetration through Pre-Cast with Fire Board;
  1. (k)
    K – Service Penetration through Pre-Cast with Fire Box;
  1. (l)
    L – Service Penetration through Pre-Cast with Fire Board and Fire Collar;
  1. (m)
    M – Service Penetration through Pre-Cast with Fire Box and Fire Collar, in that, in the course of the work thereunder, Profire:
  1. (n)
    left breaks in fire walls and floors; and
  1. (o)
    failed to provide a passive fire protection system that:
  1. (i)
    complied with the applicable manufacturer’s test data; and
  1. (ii)
    met the requirements of the terms set out at paragraphs 95A and 95B herein;

such that, in breach of the further terms pleaded in paragraphs 95A and 95B herein, the said Profire Stage 1 & 2 Defects meant that separation of self-occupied units, common areas, public corridors, or paths of travel to required exits could not be achieved such that the spread of smoke and between, these areas would occur in the event of a fire.

Profire’s application to strike out

  1. [31]
    Profire submits that paragraph 97 pleads that it breached numerous terms, but fails to plead how, or provide adequate particulars to support the allegation that, it breached the specific terms that are pleaded.  For example, it complains that Devine does not identify the basis upon which it is asserted that the alleged defects were not completed using materials that were of the kind pleaded in paragraph 76(c).  By way of further illustration, it complains that the pleading and the particulars do not identify specific breaches of the obligation in paragraph 89 about backfilling, sealing and reinstating penetrations, providing certificates and carrying out rise protection and waterproofing. 
  2. [32]
    Although Profire’s application seeks to strike out numerous paragraphs, it effectively conceded that many of these paragraphs could remain if paragraph 97 was struck out and repleaded in a manner that enabled Profire to understand how it failed to perform the specific obligations, including the particular thing that it did or failed to do.
  3. [33]
    Another troubling aspect was submitted to be the manner in which paragraph 97 seemed to rely in two different respects upon the terms set out in paragraphs 95A and 95B.  In that regard, paragraph 95A of the pleading built upon paragraph 91 which identified a term that required Profire to ensure that its works complied with, among other things, the Building Code of Australia and Australian Standards.  On that basis, paragraph 95A alleges that Profire was required to comply with a number of nominated provisions of the Building Code of Australia. 
  4. [34]
    Paragraph 95B of the pleading similarly builds upon earlier pleaded obligations to comply with any Australian Standard (paragraphs 81 and 91) and alleges that when carrying out its works, Profire was required to comply with certain particular clauses of the Australian Standards.
  5. [35]
    According to the oral submissions of Profire’s counsel, paragraph 97 contains a complicated set of allegations about breach, with its first few lines requiring a careful pleader to respond to general allegations that Profire breached each of the terms that are identified.  Counsel complained that the difficulty with the first few lines of paragraph 97 is that it refers to “a swathe of separate and discrete obligations”.
  6. [36]
    According to Profire, its difficulty in understanding the case that it has to meet in relation to each breach and its consequences was not cured by the provision of lengthy schedules and hundreds of pages of particulars which were not cross-referenced to a particular obligation or a number of obligations that were alleged to have been breached, and resulted in certain identified defects. 
  7. [37]
    The result was said to be a confusing pleading as to whether each alleged defect was the result of a breach of each and every pleaded obligation.
  8. [38]
    Devine’s failure to “pin its colours to its mast” by identifying the particular obligations that were said to have been breached in relation to each identified alleged defect was said to be apt to consume a large amount of court time.  It was not satisfactory for Profire to have to await the evidence upon which Devine relies in order to ascertain the specific breaches that were said to have caused certain defects and, more generally, the failure of that work to comply with relevant provisions of the Building Code of Australia and the applicable Australian Standards. 

Devine’s response

  1. [39]
    Counsel for Devine contended that Profire’s complaints were misconceived, that Devine had identified the relevant defects, provided abundant detail by way of particulars and photographs, and that, given the nature of its case, Devine was not required to isolate, obligation by obligation, the specific consequences of breaching each obligation.  Devine had identified the terms that had been breached and the consequences of those breaches, with various categories of defects contained in schedules and individually identified.  In that respect, the submission was that in respect of each and every defect Devine had already done what was required of it so as to “nail its colours to its mast”.  It was not required to produce a prolix pleading that set out in great detail the consequences of the breach of individual obligations.  This is because a single defect could be the result of conduct that breached a number of obligations under the contract.
  2. [40]
    Devine pointed to the fact that Profire had already pleaded to the earlier pleading and that Profire was in a position to either admit or put in issue the various defects.  Profire would be in a position to understand what any particular defect was alleged to be.  If the defect was the consequence of a breach by Profire of at least one of its obligations, then that was sufficient to establish liability.  An issue would be joined if Profire’s position was that an alleged defect could not possibly be the result of a breach of any of its obligations. 

The issues in this application

  1. [41]
    The issues raised by Profire’s application to strike out paragraph 97 and numerous other paragraphs of the pleading may be reduced to two broad issues.
  2. [42]
    The first is whether the pleading, in conjunction with the extensive particulars of defects that have been provided, enables Profire and the Court to know the case that Profire is required to meet.
  3. [43]
    An additional and related issue is whether the pleading has a tendency to prejudice or delay the fair trial of the proceeding because the pleading is difficult to follow, or insufficiently particularises and compresses, in a confusing way, allegations of breach, resultant defects and other consequences. 
  4. [44]
    The focus of my reasons, like the focus of Profire’s submissions, is upon paragraphs 97 and 126.  Many of the other paragraphs that the application seeks to strike out are adequate in isolation in identifying a relevant contractual obligation.  However, the complaint is that, in combination with paragraph 97, the respects in which the relevant obligations were breached are not adequately identified in the pleadings.
  5. [45]
    I will separately consider paragraph 103, which is the subject of separate complaint in a case in which there is an issue about whether the claim was brought within a limitation period.

Should paragraph 97 be struck out?

  1. [46]
    Paragraph 97 bundles together breaches of 21 separate obligations that are pleaded in paragraph 76, 77, 81-84 and 87-95B of the pleading.
  2. [47]
    There is nothing inherently wrong, in my view, with a paragraph in a pleading alleging that certain conduct, whether an act or omission, breached more than one identified contractual obligation.  Depending upon the circumstances, such a pleading may avoid unnecessary prolixity, especially where the obligations are of a similar kind and it would be hard for the defendant to deny that its conduct (if proven) breached at least one of the obligations.
  3. [48]
    One cannot generalise about what is required.  In some cases, the precise obligation or obligations that were breached need to be pinpointed because different breaches may have different consequences or call for different remedial responses. 
  4. [49]
    The fact that certain conduct is alleged to have breached a number of obligations of varying degrees of specificity does not necessarily mean that the breach of each obligation should be the subject of a separate paragraph.  There is nothing inherently wrong in bundling obligations together in alleging that certain specified conduct breached more than one obligation.  Whether such an approach serves the purpose of rule 5 and the intent of the pleading rules or, instead, has a tendency to prejudice or delay the fair trial of a proceeding, depends on the circumstances.
  5. [50]
    In my view, the principal difficulty with paragraph 97 is not so much that it alleges that Profire breached the numerous obligations set out in the nominated paragraphs of the pleading.  The problem with paragraph 97 is that it compresses into one paragraph allegations of the breach of more than 20 separate contractual obligations, a multiplicity of defects, and broader issues of causation and consequences. 
  6. [51]
    The pleading tends to compress the alleged consequences of breach, namely the defects that are particularised in the schedules and that are described in subparagraphs (a) to (m), with additional or “big picture” consequences.  Those more general consequences, by further reference to paragraphs 95A and 95B, seem to refer to a failure to comply with the Building Code of Australia and Australian Standards and, more generally, the end result that “separation of self-occupied units, common areas, public corridors or paths of travel to required exits could not be achieved, such that the spread of smoke to, and between, these areas would occur in the event of a fire”.
  7. [52]
    The pleading would have been less confusing if these alleged general consequences had been grouped together in separate subparagraphs of a paragraph about the general consequences of the alleged defects.  These are the consequences stated in (n) and (o), along with the words which I have just directly quoted. 
  8. [53]
    The matter is further complicated by the inclusion of paragraph 97A which states:

97A. Further to the matters pleaded at paragraph 97 herein, Profire, in carrying out its work under Profire Stages 1 & 2 Subcontract, in relation to defects identified as categories B to M failed to provide a passive fire protection system in that services penetrations breaching fire compartments were left unsealed allowing potential fire travel in breach of the terms pleaded at paragraphs 81, 91, 95A and 95B herein.

  1. [54]
    I apprehend that paragraph 97A is intended to add to the final allegation that I have quoted from paragraph 97.  The addition relates to fire whereas the final words of paragraph 97 relate to smoke.  It seems to me that this additional, general consequence of the alleged breaches should be set out in a separate paragraph or subparagraphs about general consequences.  The new paragraphs or subparagraphs would effectively replace what are subparagraphs (n), (o) and the concluding words of paragraph 97 along with the content of 97A. 
  2. [55]
    An additional difficulty with paragraph 97 is the respect in which it doubles back on paragraphs 95A and 95B.  Paragraphs 95A and 95B are among the paragraphs nominated at the start of paragraph 97 that Profire is alleged to have breached.  Towards the end of paragraph 97, after addressing by reference to schedules a large number of defects, paragraph 97 returns to the consequences stated in subparagraphs (n) and (o) and continues “such that, in breach of the further terms in paragraph 95A and 95B …”.
  3. [56]
    In my view, this tends to confuse the respects upon which Devine relies upon paragraphs 95A and 95B.  There may be reasons why paragraphs 95A and 95B re-enter the fray.  They are not immediately apparent.
  4. [57]
    More generally, paragraph 97 addresses in a compressed, and somewhat confusing way, three broad topics.  The first is Profire’s alleged conduct which, either by act or omission, is alleged to have breached one or more of the pleaded contractual obligations.  The second is the consequences of those breaches in terms of defects.  The third, which may be treated as a related issue of causation or consequence of breach, is the general consequences to which I have referred.  These are that Profire allegedly left breaks in fire walls and floors (paragraph (n)), failed to provide a passive fire protection system that met the requirements of the Building Code of Australia and relevant parts of the Australian Standards (paragraph (o)(ii)), and that this meant that there were separations or unsealed penetrations that allowed the spread of smoke and fire between areas in the event of a fire. 
  5. [58]
    Given the number of alleged breaches of contract, the number of defects that are particularised in the schedules and that are described in the headings (a) to (m) in paragraph 97 and the diversity of consequences, large and small, allegations of conduct, breach and their consequences should be the subject of separate paragraphs and clearly distinct subparagraphs.  Such a separation of major issues will enable Profire to better know the case it has to meet, to make appropriate admissions in its pleading, to join issue on facts that are in dispute and explain the reasons for its denial or non-admission.  It also will enable the Court and the parties to prepare more effectively for trial. 
  6. [59]
    My comments about paragraph 97 in its present form are intended to be constructive and not unduly critical.  I can understand why in a case of this complexity, with an already lengthy pleading, it was thought to be useful to bring together Profire’s alleged breaches and their consequences in one paragraph of the pleading, supported by extensive schedules and particulars documents.  However, the rules require that a pleading “be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation”.[7]  This is not hollow formalism.  It aids responsive pleadings and the identification of issues that are in dispute. 
  7. [60]
    Even in a simple case of breach of contract or breach of duty, the rules require allegations of breach to be made the subject of at least one paragraph about breach.  Issues of causation or the consequences of breach are separate allegations and should be the subject of a separate paragraph or separate paragraphs.
  8. [61]
    Causation is a separate allegation and, save for an obvious case such as where a negligently driven car is alleged to have hit a pedestrian and broken a leg, the material facts that are said to give rise to the causal connection should be pleaded.[8]
  9. [62]
    The consequences of a breach of duty should be the subject of separate allegations in a separate paragraph or separate paragraphs if they are many and varied. 
  10. [63]
    Separate allegations about conduct (whether in the nature of an act or omission), that the conduct was in breach of an earlier pleaded duty and that the conduct had consequences, are required by the rules.  Paragraph 97 compresses these allegations into one paragraph and, as a result, has a tendency to prejudice the identification of issues in dispute, preparation for trial and the conduct of the trial. 
  11. [64]
    As I have remarked, the fact that breaches of a number of separate obligations are the subject of one paragraph is not necessarily a bad thing.  To make the breach of each term a separate paragraph in the pleading may be unnecessary and lead to prolixity.  It may be unnecessary because certain alleged conduct of Profire, either by act or omission, may amount to a breach of a number of separate obligations of varying degrees of generality. 
  12. [65]
    If by virtue of the defects schedules and the voluminous existing particulars, with or without the additional assistance that Profire seeks in relation to determining certain locations, Profire is able to understand the defects for which Devine seeks to hold it responsible, then the compression of allegations of breach of a number of obligations into one paragraph may serve a useful purpose.  If, for example, Profire were to acknowledge that a relevant defect existed and would not have occurred had it carried out its work as required, it would seem sufficient for it to admit that the defect was the consequence of a breach by it of at least one of the nominated obligations.  To require it to plead to separate breach paragraphs, each nominating a different obligation, would generate unnecessary costs.
  13. [66]
    The possibility that breaches of contract of a similar kind might be alleged to have individually or cumulatively caused certain specified defects does not mean, however, that allegations of breach and causation should be compressed into one paragraph, as occurs in paragraph 97.
  14. [67]
    As indicated, the required architecture for the pleading is to have allegations of breach and their consequences in separate paragraphs. 
  15. [68]
    There is no necessary manner in which this should be done.  What I envisage, however, is that any new pleading first pleads the alleged fact or facts that Profire, by its acts or omissions, in purporting to perform the works caused the defects described as the Profire Stages 1 & 2 Defects particularised in the schedules to the pleading and described as (a) A-Cluster Cables through Opening, etc.
  16. [69]
    A separate paragraph or paragraphs would allege that Profire’s said conduct constituted breaches of one or more of the obligations pleaded in certain earlier paragraphs.  I am not sufficiently familiar with the detail of the defect schedules, let alone the more than 3,400 pages of particulars, to suggest whether the breach paragraphs should be grouped so that certain alleged breaches of a similar kind in relation to the performance of the work are in one paragraph, with other categories of breach, such as non-compliance with relevant standards or codes, in another, and other categorically different breaches, such as a failure to remedy defects, in yet another paragraph.  For reasons that I give in relation to paragraph 103, such a separation of breaches which are alleged to have occurred at different times may have implications in relation to limitation defences.
  17. [70]
    Conduct leading to defects and breach having been pleaded in separate paragraphs, the pleading should then address general consequences of the kind currently addressed in (n), (o), the last five lines of paragraph 97 and in paragraph 97A. 
  18. [71]
    Such a separation of material facts into separate paragraphs will assist in identifying contests in relation to specific defects and contests in relation to more general consequences.  Therefore, I intend to strike out paragraphs 97 and 97A with leave to replead on terms. 
  19. [72]
    As to particulars, the benefits of the existing defects schedules and other particulars documents should not be lost.  There may be a relatively simple and inexpensive way in which alleged breaches of a specific obligation are aligned with specific defects, general categories of defects or other consequences.
  20. [73]
    I was taken during the hearing to parts of the PDF document that exceeds 3,400 pages where defects are described.  I am disinclined to order, at this stage at least, that the already complicated and lengthy schedules to the pleadings, or this even lengthier document should be annotated by reference to the specific obligations that were allegedly breached so as to result in certain defects.  Instead, I would expect Devine, where it is able to do so without unnecessary cost or delay, to identify in its particulars:
    1. (a)
      the specific conduct, being either an act or omission, that is alleged to have constituted a breach;
    2. (b)
      the obligation or obligations (by reference to a specific paragraph of the pleading) that are alleged to have been breached; and
    3. (c)
      the defect or other consequences that are alleged to have resulted from the specific conduct in breach of contract. 
  21. [74]
    Where possible the date or dates upon which the breaches are alleged to have occurred should be identified.  I will not be prescriptive about how the particulars are amended or supplemented to make them better identify these things.  An unnecessary proliferation of additional particulars documents is to be avoided.  Both Devine and Profire are required to observe rule 5 and the principles of proportionality that are implicit in it.  Further particulars are not to be requested unless they are necessary and because Profire genuinely does not know the case it has to meet.

Limitation issues

  1. [75]
    The date or dates of breach assume some significance because of potential limitation of actions defences in respect of at least the alleged breaches of contract in relation to Stages 1 & 2. 
  2. [76]
    As noted, paragraph 96 of the pleading alleges that Profire’s work under the subcontract for those two stages was completed within the meaning of the contract upon the date that a Final Certificate was issued, namely on or about 6 November 2012.  The proceeding was commenced on 29 March 2018.  Depending on the progress of Profire’s works some, perhaps many, of the breaches may have occurred more than six years before the commencement of the proceedings.  However, Devine may rely upon a breach by Profire of the obligation pleaded in paragraph 87 to rectify every defect in its works up to the completion of its works. 
  3. [77]
    In any event, paragraph 103 of the pleading alleges that the “Profire Stages 1 & 2 Defects first became evident or able to be discovered upon reasonable enquiry and inspection, during 2014”.  This paragraph may have been included because of its implications for the alternative claim in negligence, which built upon allegations that Devine was prevented from supervising Profire’s work so as to enable Devine to identify any defective or omitted work at the time of its doing.  This allegation which appeared in paragraph 100A was based upon the proposition that the need for Profire to coordinate its work with other subcontractors prevented Devine from identifying defects.
  4. [78]
    On 31 March 2022 I ordered that paragraph 100A be struck out.  I also observe that the allegation that Devine was prevented from supervising Profire’s work, either by itself or by an entity that it engaged to inspect the work before it became “progressively concealed” as alleged in paragraph 100B, is hard to reconcile with Devine’s claim against the fourth defendant which complains of a failure by the fourth defendant to inspect the works carried out by, among others, Profire. 
  5. [79]
    Profire complains about paragraph 103, principally that it is vague and, despite requests, Devine has declined to provide proper particulars of it.  Profire seeks particulars of, among other things:
    1. (a)
      the basis upon which Devine alleges that the defects first became evident or were able to be discovered upon reasonable enquiry;
    2. (b)
      to whom or by whom it was, or ought to have been “so evident or able to have been discovered”; and
    3. (c)
      what is intended by the term “reasonable enquiry”.
  6. [80]
    The allegation in paragraph 103 is said to be of critical importance where there is a question whether the proceedings or at least part of the plaintiff’s claim may have been brought outside the limitation period.
  7. [81]
    I conclude that paragraph 103 in its present form does not sufficiently enable Profire (or the other parties and the Court) to know the case that Devine brings in relation to when the alleged Profire defects were able to be detected in the course of the works being carried out or discovered upon reasonable enquiry at some later stage.
  8. [82]
    The time at which Devine was able to discover the defects, either by its own inspection or by the engagement of an entity to carry out inspections, assumes significance. 
  9. [83]
    If Devine was reasonably able to ascertain defects by processes of inspection during the carrying out of the work, but failed to do so, this will have implications.  The implications may turn on the nature of the contractual obligation that is alleged to have been breached, and whether Devine engaged another party to undertake inspections on its behalf.
  10. [84]
    I expect that any new pleading by Devine, both in the manner in which alleged breaches are pleaded and particularised, and more generally, will identify to Profire and to the other parties the date or dates upon which breaches occurred (or at least a date by which they had occurred), along with what its case is as to Devine’s ability to inspect or reasonably detect the defects caused by those breaches.  Presently paragraph 103 does not explain the basis upon which it is alleged that the relevant defects first became evident or able to be discovered upon reasonable enquiry and inspection until 2014.  It does not explain why they could not have been discovered upon reasonable inspection during the course of construction.  As a result, I intend to order that paragraph 103 be struck out.
  11. [85]
    Limitation periods may not loom so large in relation to the subcontract for Stage 4 which is alleged to have been completed on or about 15 November 2018.  Clarification is required as to Devine’s case in relation to when the alleged Profire Stage 4 Defects first became evident or able to be discovered upon reasonable enquiry.  Paragraph 132 currently says that they first became evident or able to be discovered upon reasonable enquiry and inspection during 2014.  This date is obviously wrong and the product of a word processing duplication of paragraph 103.  That is an additional reason why paragraph 132 should be struck out.

Conclusion

  1. [86]
    On this aspect of Profire’s application, and for the reasons given, I intend to order that paragraphs 97, 97A, 103, 126, 126A and 132 be struck out, with leave to replead on terms.  By way of clarification, paragraph 126 is the counterpart to paragraph 97 in respect of the subcontract for Stage 4 and paragraph 132 is the counterpart of paragraph 103. 
  2. [87]
    I will direct the parties to confer and agree a date by which a new proposed pleading by Devine is circulated to the other parties so as to ascertain their attitude to leave being granted to replead, the terms upon which any leave to replead is granted, a timetable for pleadings to close and any issue as to costs. 
  3. [88]
    For the moment, the only order that I will make is that paragraphs 97, 97A, 103, 126, 126A and 132 of the further amended statement of claim filed on 3 December 2021 are struck out.

Footnotes

[1]  [2019] QSC 248 at [13] (footnotes omitted).

[2]  [2011] QCA 53 at [16]. 

[3]  [2008] VSC 77 at [2]-[4].

[4]  [2019] QSC 248 at [15]-[17].

[5]  (2006) 33 WAR 82 at 84 [8]; [2006] WASC 281 at [8] (“Barclay Mowlem”).

[6] Equititrust at [17], citing Barclay Mowlem at 84 [10], [12].

[7] Uniform Civil Procedure Rules 1999 (Qld) r 146(1)(f).

[8] Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 at [26]-[27].

Close

Editorial Notes

  • Published Case Name:

    Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors

  • Shortened Case Name:

    Devine Constructions Pty Ltd v Stowe Australia Pty Ltd

  • MNC:

    [2022] QSC 51

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    07 Apr 2022

  • White Star Case:

    Yes

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
Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82
2 citations
Jump To
Cite 1 - (2006) 33 WAR 82
Cite 2 - (2006) 33 WAR 82
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
2 citations
Jump To
Cite 1 - [2006] WASC 281
Cite 2 - [2006] WASC 281
Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77
2 citations
Jump To
Cite 1 - [2008] VSC 77
Cite 2 - [2008] VSC 77
Equititrust Ltd v Tucker (No 2) [2019] QSC 248
3 citations
Jump To
Cite 1 - [2019] QSC 248
Cite 2 - [2019] QSC 248
Cite 3 - [2019] QSC 248
Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221
2 citations
Jump To
Cite 1 - [2016] QSC 221
Cite 2 - [2016] QSC 221
Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53
2 citations
Jump To
Cite 1 - [2011] QCA 53
Cite 2 - [2011] QCA 53

Cases Citing

Case NameFull CitationFrequency
Devine Constructions Pty Ltd v Stowe Australia Pty Ltd (No 2) [2022] QSC 2722 citations
Workers' Compensation Regulator v Carr [2023] ICQ 12 citations
1

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