Crib Insulation Pty Ltd v The Ashtay Group Pty Ltd (In Liquidation) & Anor [2018] QDC 185

DISTRICT COURT OF QUEENSLAND CITATION: Crib Insulation Pty Ltd v The Ashtay Group Pty Ltd (In Liquidation) & Another [2018] QDC 185 PARTIES: CRIB INSULATION PTY LTD ACN 137 599 127 (Plaintiff) v THE ASHTAY GROUP PTY LTD (In Liquidation) ACN 121 566 989 Trading as CMS BUILDING AND DESIGN (First defendant) AND ANNERLEY VIEWS DEVELOPMENT PTY LTD ACN 605 379 379 (Second defendant) FILE NO/S: 1351/17 DIVISION: Civil Division PROCEEDING: Application for summary judgment ORIGINATING COURT: Brisbane DELIVERED ON: 13 September 2018 DELIVERED AT: Brisbane HEARING DATE: 21 March 2018, 29 March 2018 and further material delivered on 6 April 2018. JUDGE: Williamson QC DCJ ORDER: 1. Paragraphs 8(e) and 8(h) to 8(l) of the Second Defendant’s Defence filed on 4 May 2017 be struck out. 2. By 4pm on 3 October, the Second Defendant file and serve an Amended Defence. 3. By 4pm on 24 October, the Second Defendant file and serve a List of Documents. 4. The Plaintiff’s request for default judgment as against the First Defendant be granted, being judgment in the sum of $170,012.39. 5. The proceeding be placed on the Commercial List. -- 1 of 12 -- 2 6. The balance of the Plaintiff’s application filed 21 February 2018 be dismissed. 7. I will hear from the parties with respect to the question of costs. CATCHWORDS: COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – SUMMARY JUDGMENT – where application for summary judgment under r.292(2) and r.225(2)(b) of the Uniform Civil Procedure Rules 1999 (Qld) – whether there is a need for a trial of the Claim – where the Claim involves a charge under the Subcontractors’ Charges Act 1974 (Qld) – where there is an issue with respect to extent of the charge under the Subcontractors’ Charges Act 1974 (Qld) – whether a charge attached in circumstances where the First Defendant was put into liquidation prior to a notice given under s.10 Subcontractors’ Charges Act 1974 (Qld) – whether a charge under Subcontractors’ Charges Act 1974 (Qld) has priority over set-off under s.553C of the Corporations Act 2001 (Cth) COUNSEL: Mr B Codd for the Plaintiff/Applicant Mr S Trewavas for the Second Defendant/Respondent SOLICITORS: Colville Johnston Lawyers for the Plaintiff/Applicant Lexsolve Lawyers for the Second Defendant/Respondent Introduction [1] In October 2016, Crib Insulation Pty Ltd (“Crib”) entered into a subcontract agreement with The Ashtay Group (“TAG”). The agreement required Crib to supply and install steel framing, internal lining and insulation for a new residential unit complex at Waverley Street, Annerley. The works were to be carried out for TAG who had entered into a contract to construct the unit complex with the owner of the site, Annerley Views Developments (“AVD”). [2] Crib carried out works under the subcontract agreement between November 2016 and February 2017. It has been paid for some, but not all of the works. On 2 March 2017, TAG was put into liquidation. Some 6 days later, Crib served a notice under s.10 of the Subcontractors’ Charges Act 1974 (“the SCA”) on TAG and AVD. AVD admits the notice is valid. Despite this, Crib has not received payment for the works it contends were completed under the subcontract agreement and says is secured by a charge under the SCA. [3] Crib commenced proceedings in this Court to enforce the charge under the SCA and thereby recover outstanding money payable under the subcontract. TAG did not file a Notice of Intention to Defend or a Defence. It accepts money is due and owing to Crib under the subcontract agreement. AVD opposes the relief sought. Whilst it accepts there is a charge under the SCA in favour of Crib, it contends the charge is limited under s.5(1)(a) and (3) of the SCA to the money payable to TAG. It contends the amount payable by it to TAG is yet to be determined, and the amount owing, as at the date of hearing, is in fact nil. -- 2 of 12 -- 3 [4] The central issue in this proceeding is what amount, if any, is payable by AVD to TAG. The determination of this issue will resolve the true quantum of the charge secured by Crib under the SCA. The extent of the charge will determine the amount payable by AVD to Crib as a consequence of the notice delivered under the SCA. [5] On 21 February 2018, Crib filed an application seeking summary judgment against AVD under r.292, or alternatively, r.225(2)(b) of the Uniform Civil Procedure Rules 1999 (“UCPR”). In the alternative to summary judgment, Crib seeks the following relief, namely: (a) paragraphs 8(e) and 8(h) to 8(l) of the Defence filed on behalf of AVD be struck out; or (b) the summary judgment application be adjourned to a date to be fixed with orders made placing the matter on the Commercial List, requiring the delivery of particulars and further disclosure. [6] The application also includes a request for default judgment against TAG, who have not filed a Notice of Intention to Defend. Rules 292 and 225(2)(b) of the UCPR [7] Crib Insulation seeks summary judgment on one of two alternative bases. First, under r.292, or alternatively, under r.225(2)(b). [8] Rule 292(2) provides: “(2) If the court is satisfied that- a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.” [9] It is well established that the discretion to grant summary judgment should only be exercised in the “clearest of cases”1. Ordinarily, a party is not to be denied the opportunity to place their case before a court2. The strictness of the test means that any prospect of defending the claim, not just those arguments raised in the defence, is of significance and must be considered. [10] The second limb of r.292 is of particular relevance to this case. A trial will be required where there are triable facts in issue. An application will be refused where there are circumstances that should to be investigated by way of trial. Even where facts are settled, a hearing may be required on the basis of the extent and complexity of legal issues to be determined3. 1 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, 233 [3]. 2 Rich v CGU Insurance Ltd (2005) 214 ALR 370, 375 [18] citing Agar v Hyde (2000) 201 CLR 552, 575-576 [57]. 3 Theseus Exploration NL v Foyster (1972) 126 CLR 507, 515. -- 3 of 12 -- 4 [11] Summary judgment is also sought by Crib under r.225(2)(b). This rule provides: “(2) If a document is not disclosed to a party under this part, the party may apply on notice to the court for – … (b) a judgment or other order against the party required to disclose the document…” Summary judgment: r.292(2) of the UCPR [12] To succeed in its application for summary judgment under r.292 of the UCPR, Crib must demonstrate two things. It must demonstrate that AVD’s pleaded defence, and any further arguments made in support of the defence to the Claim, have no real prospect of success, and, second, there is no need for a trial of the Claim or part of the claim. I am not satisfied Crib has demonstrated the second of the two elements. There is, in my view, a need for a trial of the Claim. This is not the clearest of cases where summary judgment is appropriate. [13] As a starting point, the existence of a charge under the SCA in favour of Crib is uncontroversial between the parties. It is admitted by AVD that on or about 8 March 2017, Crib served a valid Notice of Claim of Charge pursuant to s.10 of the SCA. The notice of 8 March 2017 forms the legal basis for the charge. The defence raised on behalf of AVD involves a contention, consistent with authority4, that section 5(1) and (3) of the SCA limits the extent of the charge to the money payable under the head contract as between it and TAG. The relevant aspects of s.5(1) and (3) of the SCA provide as follows: “5 Charges in favour of subcontractors (1) If an employer contracts with a contractor for the performance of work upon or in respect of land or a building, or other structure or permanent improvement upon land or a chattel, every subcontractor of the contractor is entitled to— (a) a charge on the money payable to the contractor or a superior contractor under the contractor’s, or superior contractor’s, contract or subcontract; and (b) subject to subsection (4), a charge on any security for the contractor’s, or superior contractor’s, contract or subcontract. … (3) The total amount recoverable under the charges of subcontractors does not exceed the amount payable to the contractor or subcontractor under the contract or subcontract, as the case may be…” (emphasis added) [14] Section 5(3) of the SCA provides that a charge attaches to money payable by an employer to a contractor under a head contract. The charge cannot attach if there is no money payable. In this case, there is a genuine dispute between Crib and AVD as to whether there is money payable by AVD to TAG to which a charge can attach. 4 QLine Interiors Pty Ltd v Jezer Construction Group Pty Ltd [2009] 2 Qd R 566, per Muir J at [96]. -- 4 of 12 -- 5 [15] It was submitted on behalf of AVD: “…The Second defendant has a set-off against the amount claimed as owing by the First Defendant for damages for breach of contract. It is unable to specifically calculate what the amount of set-off will be, as the construction works are not complete. Once the works are complete, the value of the set- off can be calculated5.” [16] The ability to claim a set-off, and the calculation of the quantum of the set-off as between TAG and AVD goes directly to the extent of the charge secured by Crib under the SCA. The extent of the charge on AVD’s case has yet to crystallise. [17] Crib accepts there is a live issue to be determined as to whether there is money payable to which its charge can attach. It was submitted on its behalf that the “only live issue on the pleadings is whether or not there were monies payable by the second defendant to the first defendant to which the charge could attach”6. This issue will need to be resolved by way of a trial. It is an issue that will turn on questions of fact and law. [18] As to the relevant facts, they are in dispute. In defence of the Claim, AVD contends that the circumstances of the termination of the head contract leave it unable to respond to the Notice of Claim of Charge. In particular, it is contended until the building work is complete and there is a certification by the Superintendent, the money payable to TAG under the head contract cannot be calculated. It is contended AVD is entitled to a set-off under the head contract from TAG that is yet to be determined. This Court is not in a position to calculate the value of the set-off given the paucity of evidence before it. Nor is it appropriate to do so given this is an application for summary judgment. A trial of this issue is required. [19] As to the law, there is a dispute between the parties as to whether, and if so how, a right to set-off arises. The right to set-off was submitted by AVD to arise in one of three ways: (1) under the terms of the head contract; (2) at common law; and (3) by operation of s.553C of the Corporations Act 2001. For the purposes of resisting the application for summary judgment, AVD placed particular reliance upon s.553C to contend there was no money payable to TAG for a charge to attach under the SCA7. [20] Crib rejects that a right to set-off arises under the head contract having regard to its proper interpretation. It rejects that AVD legitimately took the building work out of the hands of TAG in accordance with the head contract8 and rejects there are any other circumstances surrounding the termination of the head contract which may give rise to a right to claim damages, and thus, a set-off. In support of this, extensive submissions were made on behalf of Crib referring to a multitude of authorities. The submissions were symptomatic of the fact that the issue was a complex one that was not suitable for determination by way of summary judgment. 5 Written Submissions on behalf of the Second Defendant, paragraph [1]. 6 Applicant’s Outline, paragraph [32]. 7 Written Submissions on behalf of the Second Defendant, paragraph [15]. 8 Reply to the Defence of the Second Defendant, paragraph [4]; Applicant’s Outline, paragraph [35]. -- 5 of 12 -- 6 [21] The arguments advanced by both Crib and AVD going to the proper interpretation of the head contract are technical. An issue of this nature will require an examination of relevant facts, including an examination of evidence about the timing of invoices, the timing of insolvency and the timing of notice, if any, purported to be given under the head contract to take work out of the hands of TAG. This is not an exercise appropriate for summary judgment. It involves a complex question of construction of the head contract coupled with an examination of the relevant factual background. Issues of this nature require a trial. Summary judgment is inappropriate. [22] The need for a trial also arises having regard to AVD’s reliance on s.553C of the Corporations Act 2001. It was submitted on its behalf that s.553C provides for the set-off of mutual claims. This legislative provision is in the following terms: “Insolvent companies – mutual credit and set-off (1) Subject to subsection (2), where there have been mutual credits, mutual debts or other mutual dealings between an insolvent company that is being wound up and a person who wants to have a debt or claim admitted against the company: (a) an account is to be taken of what is due from the one party to the other in respect of those mutual dealings; and (b) the sum due from the one party is to be set off against any sum due from the other party; and (c) only the balance of the account is admissible to proof against the company, or is payable to the company, as the case may be. (2) A person is not entitled under this section to claim the benefit of a set- off if, at the time of giving credit to the company, or at the time of receiving credit from the company, the person had notice of the fact that the company was insolvent.” [23] AVD submitted that: (a) s.553C is given wide scope to achieve substantial justice as between the parties9; (b) when a s.553C set-off applies, s.553C applies automatically so that only the balance between the claims is admissible10; (c) the phrase “mutual dealings” in s.553C includes circumstances where one party has a damages claim for breach of contract entered into before administration and is apt to describe a damages claim arising out of a prior dealing between it and TAG11; and 9 Citing Gye v McIntyre (1991) 171 CLR 609, 619. 10 Citing Façade Treatment Engineering Pty Ltd (in Liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCCA 247, [166]. 11 Citing Façade Treatment Engineering Pty Ltd (in Liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCCA 247, [107]. -- 6 of 12 -- 7 (d) for s.553C to apply, there is no need for it to have lodged a proof of debt12 nor for its claim to have been vested, liquidated or enforceable as at the date of insolvency13. [24] Against this background, AVD submitted that as soon as TAG entered into liquidation, s.553C of the Corporations Act 2001 applied automatically, by operation of statute. This was submitted to give rise to a valid defence to Crib’s Claim which is based upon the existence of a charge under the SCA. [25] It was also submitted that the amount due to be paid, if any, by AVD to TAG is subject to s.553C. This impacts on the central issue in the proceeding; the issue being the amount, if any, owed by AVD to TAG to which Crib’s charge can attach under the SCA. [26] The application of s.553C was disputed by Crib in its submissions in reply14. The submissions made on its behalf were premised on the footing that the SCA imposes a statutory priority over payments due and owing under contracts. Crib relied upon the decision of Atkinson J in Civcrush Pty Ltd v Yeo & Co Pty Ltd (Administrators Appointed) 15 as authority for the proposition that s.553C does not trump a valid (and attached) charge under the SCA16. [27] Civcrush concerned the granting of leave to proceed with a claim against a company in administration. It is apparent from the facts of the decision that it remained open for the head contractor to dispute all or part of the claim and to make a counterclaim which was relevant to the extent, if any, of a charge attaching under the SCA17. This does not assist Crib. Further, I do not accept that Civcrush stands for the proposition for which Crib submitted. The decision does not establish that a statutory priority over payments arises under the SCA to the exclusion of s.553C of the Corporations Act 2001. Neither party was able to point to a relevant and binding authority which considered the impact of s.553C in circumstances where a valid notice had been given under the SCA. It does not appear that any binding authority exists. The absence of this authority lends support to the proposition that it is a matter requiring a trial rather than a summary determination. [28] In this context, it is also relevant to note that the submissions made on behalf of AVD in defence to the Claim proceed on the footing that a charge under the SCA can be affected by liabilities that come into existence after the date a valid notice is issued under the SCA. This point is also a matter about which the parties disagree. 12 Citing Façade Treatment Engineering Pty Ltd (in Liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCCA 247, [107]. 13 Citing Grapecorp Management Pty Ltd (in liq) v Grape Exchange Management Euston Pty Ltd (2012) 265 FLR 33, 44 [52]; Façade Treatment Engineering Pty Ltd (in Liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCCA 247, [226]-[227]. 14 Applicant’s Outline in Reply, paragraph [1]. 15 [2017] QSC 225 (‘Civcrush’). 16 Applicant’s Outline in Reply, paragraphs [1] – [3]. 17 Civcrush at [16]. -- 7 of 12 -- 8 [29] It was pointed out by Crib that there is one invoice identified as being outstanding and owed by AVD to TAG for $182,453.2818. Crib seeks to attach its charge to this interim payment amount. However, as I have already said, the defence to the Claim involves a contention that there is a right of set-off against money due and owing under the head contract. This right of set-off impacts on the amount owing under the head contract and therefore the extent of the charge under the SCA. The outstanding invoice to which my attention was drawn, on AVD’s case, may be an interim amount, but will be overtaken by a set-off, if it is taken into account. [30] The concept that a charge, once attached, may still be defeated by a liability that is created at a later date is arguable and is an issue for which there is a need for a trial. At the outset, there is a need to establish, on the facts, the relevant factual background to determine when, and how the later liability came into existence. This is a matter for trial. [31] Further, there is a need to examine the correct legal position. The parties do not agree as to the legal position to be adopted. [32] In QLine,19 Muir J (as he then was) accepted that a reduction in the amount payable by the employer to the subcontractor at a later date was valid, despite the charge being notified at a time when there was sufficient money payable for the charge to ‘crystallise’. At [100] his Honour said:20 “…a subcontractor who gives the statutory notices at a time when sufficient moneys are payable by the contractor to the employer to satisfy its claim may have the claim defeated in whole or in part by a reduction in the amount payable by the employer to the subcontractor. But there is nothing surprising or inequitable about that result…the amount payable by the employer to the contractor may increase and thus improve the subcontractor’s security.” [33] The above authority, in my view, suggests that even where a charge is found to crystallise at a time when money is payable (which is itself a contested fact in the present case), there may be circumstances which arise after money is paid or becomes payable to the contractor that has the effect of reducing or eliminating the debt due and owing by an employer21. In Goodacre v Romtra Pty Ltd,22 the court referred to a claim for common law damages by a developer as set-off against a head contractor’s entitlement as falling within such circumstances. [34] The extent to which s.553C Corporations Act 2001 applies, if at all, in this case is an issue in dispute between the parties. It is a one that will be complicated by the facts of this case involving a set-off in circumstances where a head contractor is rendered insolvent part way through the construction of a project and works are incomplete. This, in my view, means, this is not the clearest of cases where summary judgment is appropriate. There is a need for a trial of the Claim. 18 Affidavit of Richard Knox Woodhead sworn 20 March 2018 at paragraph [14]. 19 QLine Interiors Pty Ltd v Jezer Construction Group Pty Ltd [2009] 2 Qd R 566. 20 Applied in Raedel v Jezer Construction Group Pty Ltd [2002] QDC 079 [19]-[20]. 21 This is also supported by Goodacre v Romtra Pty Ltd (2000) 2 Qd. R. 494, 497 [12]. 22 (2000) 2 Qd. R.494. -- 8 of 12 -- 9 [35] There is a triable issue as to whether money is payable under the head contract by AVD to TAG at the time the charge arises. This issue involves an inquiry into the timing and amount of invoices and payments made by AVD to TAG. It will also involve a comparison of the timing of invoices which are the subject of the charge under the SCA and amounts due and owing by AVD to TAG. The existence of any set-off which would eliminate money payable is disputed. This issue is further complicated by the dispute between the parties as to whether circumstances may arise after the crystallisation of a charge that reduce or eliminate AVD’s liabilities under the head contract. [36] The resolution of these issues involves factual controversies as well as contested questions of law. These are issues for which a trial is needed to properly and fairly determine. Summary judgment would be inappropriate in these circumstances. [37] The application in so far as it seeks summary judgment under r.292(2) is dismissed. Summary judgment: r.225(2)(b) of the UCPR [38] In the alternative, Crib seeks summary judgment under r.225(2)(b). This rule is engaged in circumstances where it can be demonstrated that a party has failed to discharge its obligations with respect to disclosure. [39] On the basis of the affidavit material before me, I am satisfied that AVD has failed to discharge its obligations with respect to disclosure. Despite repeated requests from Crib, AVD has failed to disclose documents directly relevant to the issues in dispute. The requests for disclosure have included correspondence under r.444 of the UCPR. [40] It was submitted on behalf of Crib that summary judgment ought be given under r.225(2)(b) in its favour because AVD has wilfully and methodically failed to: (a) comply with its obligations under the UCPR to provide disclosure; and (b) articulate a defence which is responsive to the allegation that Crib accrued an interim entitlement to payment to which a charge could attach. [41] No submission was made on behalf of AVD suggesting that Crib’s complaints with respect to disclosure or the adequacy of the defence were unsustainable, or not made out. In fact, Mr Trewavas who appeared for AVD fairly and sensibly conceded that the Defence filed on behalf of his client was inadequate. It requires substantial amendment to be responsive to the Claim. The Defence also does not embody all of the matters raised by Mr Trewavas in his submissions in defence of the Claim. This is unsatisfactory and needs to be remedied. I propose to make directions with respect to the delivery of an Amended Defence and disclosure. An amended pleading should be filed no more than 21 days after the date of this judgment. Disclosure should be provided no more than 21 days after any amended pleading is filed and served. [42] While AVD’s conduct in this proceeding in terms of disclosure and the adequacy of its pleading are regrettable, I am not persuaded that the case is one where an order should be made for summary judgment under r. 225(2)(b). An order of that kind is an extreme step. It brings to an end a proceeding in a summary way without a party having access to a trial to determine triable issues. [43] I am far from persuaded that the facts of this case have reached a point where it is appropriate for such an extreme step to be taken. More would be required in my view. -- 9 of 12 -- 10 The making of an order for summary judgment under r.225(2)(b) is not the only way to remedy a failure by one party to comply with its disclosure obligations. As I said above, orders will be made about an amended pleading and disclosure. These orders, in my view, are required to ensure the matter can proceed expeditiously and efficiently. [44] The application in so far as it seeks summary judgment under r.225(2)(b) is dismissed. Adjournment of the summary judgment application [45] As an alternative submission, Crib contended no order should be made dismissing its application for summary judgment under.292(2) of the UCPR. Crib contends it should not be required to obtain leave to make a fresh application for summary judgment because of AVD’s dilatory conduct and flagrant breach of the requirements of the UCPR. The submission is not persuasive. [46] While there is some substance to the underlying criticism of AVD’s conduct, I am not persuaded that the application for summary judgment should be adjourned for re- consideration in the future. The success or otherwise of the application was contingent upon Crib demonstrating r.292(2) of the UCPR was satisfied. It failed to do so. [47] Crib’s failure to demonstrate r.292(2) was satisfied in the circumstances of this case is the direct product of the issues in dispute. I have found that the issues are such that a trial of the Claim is needed. AVD’s conduct, quite apart from the nature of the issues as between the parties, does not alter this position. In the circumstances, no basis for the adjournment of the summary judgment application has been established. [48] The application is dismissed to the extent it seeks an order that Crib’s application for summary judgment be adjourned. Request for default judgment [49] Crib’s application in pending proceeding includes a request for default judgment against TAG in the amount of $170,012.39. [50] TAG did not file a Notice of Intention to Defend. Nor did it file a Defence. Further, it has been indicated through the liquidator that the amount due and owing under the subcontract by TAG to Crib is not disputed. [51] The Court invited counsel to assist with respect to any authority or rule that would preclude the request for default judgment being granted in the circumstances. The circumstances being there was a live dispute as between TAG and AVD. Neither Mr Codd nor Mr Trewavas provided any authority, nor did they refer to any rule to assist one way or the other. No submission was made by Mr Trewavas suggesting the request for default judgment was opposed, or should not be granted by the Court. [52] In the circumstances, I accede to the request for default judgment. Default judgment is given in favour of Crib in the amount of $170,012.39. Partial strike out of AVD’s defence -- 10 of 12 -- 11 [53] In the event the application for summary judgment failed, Crib submitted the appropriate course was to strikeout paragraphs 8(e) and 8(h) to 8(l) of the Defence filed on behalf of AVD. This submission is made on the premise that the pleading discloses no reasonable cause of action or, alternatively, is likely to prejudice a fair trial of the proceeding. [54] This submission was, in effect, overtaken by events. Mr Trewavas readily conceded that the Defence filed on behalf of AVD was materially inadequate and did not articulate the full defence to the Claim. The summary judgment application was argued on the basis the issues to be tried included not only those contained in the pleading, but additional issues yet to be pleaded. One such issue was the reliance placed upon s.553C of the Corporations Act 2001. The Defence as filed does not refer to this legislative provision. [55] Having regard to paragraphs 8(e) and 8(h) to 8(l) of the Defence filed on behalf of AVD, I am satisfied that those aspects of the defence fail to fairly disclose AVD’s defence to the proceeding and will therefore be likely to prejudice a fair trial. Accordingly, those paragraphs should be struck out. Given Mr Trewavas’ sensible concession, it is unnecessary to set out those aspects of the pleading in this judgment. It is, in my view, sufficient to record that those aspects of the pleading filed on behalf of AVD fail to disclose a defence to the Claim because they do not, either individually or collectively, plead a proper basis for the set-off in the way it was submitted would arise in response to the application for summary judgment. AVD should re-plead to ensure that Crib is aware of the case it must meet at trial. That will not be achieved by AVD’s Defence in its present form. A direction will be made requiring an amended defence to be filed 21 days from the date of this judgment. [56] The application is allowed to the extent it seeks an order that paragraphs 8(e) and 8(h) to 8(l) of the Defence be struck out. Conclusion [57] The proceeding before the Court is not suitable for summary judgment. There is a need for a trial of the Claim. The Claim involves complex questions of fact and law. Given the complexity of the issues to be determined, this is a matter which should be added to the Commercial List. It is also necessary for directions to be made to ensure AVD take such further steps as are necessary to ensure the proceeding is conducted in an efficient and expeditious way. [58] For the reasons set out above, I will make the following orders: 1. Paragraphs 8(e) and 8(h) to 8(l) of AVD’s Defence filed on 4 May 2017 be struck out. 2. By 4pm on 3 October 2018, AVD file and serve an Amended Defence. 3. By 4pm on 24 October 2018, AVD, file and serve a List of Documents. 4. Crib’s request for default judgment as against TAG be granted, being judgment in the sum of $170,012.39. 5. The proceeding be placed on the Commercial List. -- 11 of 12 -- 12 6. The balance of Crib’s application in pending proceeding filed 21 February 2018 be dismissed. [59] I will hear from the parties with respect to the question of costs. -- 12 of 12 --