SunWater Limited v Drake Coal Pty Ltd & Anor

This was an appeal from a decision of a primary judge who refused to strike out parts of a pleading. The appellant argued that the learned trial judge had erred in identifying the elements of the restitutionary claim and any defence to it and that despite the amendments the pleading remained defective.

The appellant had submitted that certain paragraphs of a defence were irrelevant, given that the facts alleged therein could not affect the outcome of any aspect of the case.  At first instance the case involved a question of the effect of the High Court judgment in Lumbers v W Cook Builders Pty Ltd (In liq) 40  (2008) 232 CLR 635 upon a restitutionary claim for remuneration for work done by a plaintiff at the request of a defendant. [20].

The plaintiff’s case 

Relying upon Lumbers v W Cook Builders Pty Ltd (In liq), the essence of the appellant’s argument was that an assessment of the pleaded conduct was neither necessary nor appropriate; and the impugned paragraphs were irrelevant to the determination of the appellant’s claim. [42].

The primary judge differed, taking the view that the law was “not so clear” as to warrant the striking out.  He reasoned that, on a strict reading of Lumbers v W Cook Builders Pty Ltd (In liq), none of the matters the subject of the strike-out application were relevant to the appellant’s claim. That being so, he considered that there was substance in the respondents’ submission that the Court in Lumbers v W Cook Builders Pty Ltd (In liq) was in fact considering the relevant factors for establishing a claim by the person undertaking that work, as distinct from the factors relevant to establishing a defence to such a claim. [11].  Noting the caution which must be exercised in strike-out applications where the issues in dispute involve complex issues of fact and law, his Honour preferred to allow the proceedings to run the usual course. [44].

Consideration

The court found that the primary judge erred in that interpretation of Lumbers v W Cook Builders Pty Ltd (In liq) as possibly limited to the matters relevant to establishing the restitutionary claim for work and labour done at the request of another, as opposed to those relevant to founding a defence to the claim. [16], [45]. In her judgment, her Honour Justice Philippides clarified:

“Where it is pleaded that work was done by the claimant at the request of the other party, it is not open as a matter of law to the recipient to contend by way of defence that no ‘benefit’ was conferred.  The respondents’ contention that no ‘benefit’ was conferred may be a reflection on the nature or wisdom of the work requested but it is not, as a matter of law, a factor of relevance in defeating the restitutionary claim pleaded by the appellant.” [18].

Finding that the primary judge should not have dismissed the appellant’s application, and did so on “an incorrect basis”, [46] the court allowed the appeal and set aside the order which dismissed the appellant’s application, in order to allow the primary judge to freshly reconsider the application in accordance with the court’s reasons. [54].