Austral Plywoods Pty Ltd v Hvac Queensland Pty Ltd [2008] QDC 78

1 [2008] QDC 78 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 4128 of 2005 AUSTRAL PLYWOODS PTY LTD Plaintiff and HVAC QUEENSLAND PTY LTD Defendant BRISBANE ..DATE 31/03/2008 ORDER CATCHWORDS: Uniform Civil Procedure Rules r 161 - particulars of defence not ordered where it appeared the defence was to be amended - order that amended defence include a statement of any oral term the defendant contended formed part of the parties' agreement - plaintiff (which pleaded certain oral terms denied or not admitted) should not be at risk of different oral terms not pleaded being asserted. -- 1 of 6 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is a plaintiff's application for further and better particulars of the defence under rule 161. It is something of a moveable feast because the defence is apparently likely to be changed. The plaintiff manufactures plywood. It encountered difficulties in a drying process which was necessary to cure the bonds between layers of the ply by the blowing of hot air through pipes in some location where conveyor belts moved through. The difficulty was that particles such as ash, which came with the hot air produced by a furnace, clogged outlets. According to the plaintiff in its statement of claim, the defendant "agreed for reward to design, supply and install a dust collection and extraction system." The defence is a considerably longer document which, perhaps significantly, appears to remove responsibility for design from the defendant, which pleads an agreement to, "manufacture, supply and install a dust collection and extraction system." The parties are agreed on what documents constitute the written part of the agreement but not upon what constituted the oral part, which the plaintiff said was contained in conversations between its Mr Matthews and Mr Lubbers and the defendant's Mr Goulden on two days. Particulars have been given of terms agreed on in paragraph 6(a) and (b) of the original statement of claim and paragraphs 6(a), (b), (c) and (d) of an amended statement of claim dated 26th October 2007, -- 2 of 6 -- 3 ORDER 1 10 20 30 40 50 60 which followed receipt of the notice of intention to defend and a defence which are dated 23rd of December 2005. The defence has not yet been amended, although the defendant's solicitors, by facsimile transmission of the 7th of February 2008, advised that meetings were being held with client and counsel for the purpose of the defence being amended if necessary. Four days ago came another facsimile offering to consent to the present application on terms including the defendant being ordered to file and serve an amended defence on or before 14 April 2008. It seems that the defendant now does wish to amend and that is probably necessary. If there is to be an amendment it may render redundant the plaintiff's present application. An amended pleading may cause some of the plaintiff's dissatisfaction with the particularity to go away. The crucial point of concern for the plaintiff arises from paragraph 4 of the defence, in particular subparagraph (b), which admits that the parties' agreement was partly in writing and partly oral, proceeding as follows: "(ii) To the extent that the agreement was oral it was contained in conversations between Mr Bruce Goulden on behalf of the defendant and Messrs Malcolm Matthews and Hans Lubbers. (The dates and locations of those conversations cannot be further particularised until after disclosure)." The preceding paragraph had denied the plaintiff's version of the contract and the following paragraphs of the defence, in particular 6, 7, 8, deal with paragraph 6 of the statement of -- 3 of 6 -- 4 ORDER 1 10 20 30 40 50 60 claim by way of denial of the oral term pleaded in paragraph 6(a) and non admission of that contended for in paragraph 6(b). As to the balance of the allegations in that paragraph 6, it is pleaded that despite making reasonable inquiries as to the dates of conversations alleged, the defendant remains uncertain of the truth or otherwise of the allegations. The plaintiff in the action asserts that the defendant's work was ineffective and essentially that the plaintiff wasted its money. There is also a claim for consequential losses attributable to the closing of its operation for periods. I agree with Mr Sheaffe's approach that the plaintiff is entitled to know what the defendant says were the terms of the contract. It appears to me that paragraph 4(b)(ii) leaves it open to the defendant to set up new oral terms. It is not clear whether the defendant, which may well dispute that the oral terms contended for by the plaintiff existed, says there were no oral terms or that there were different oral terms. The plaintiff is at risk of having its claim jeopardised by the surprise appearance somewhere down the track of assertions of further statements or representations having some contractual effect. Mr Harding's careful argument for the defendant is essentially this: it is the plaintiff setting up and suing on an agreement; it is for the plaintiff to prove what were the terms of that agreement; it is not incumbent on the defendant, which has no counterclaim, to make positive allegations as to -- 4 of 6 -- 5 ORDER 1 10 20 30 40 50 60 what were the complete contractual arrangements. I am not able to accept that argument in our current "no surprises" litigation system. The plaintiff, in my view, is entitled, by having particulars provided, to be placed in a position of certainty that no additional contractual arrangements would be asserted or that if any are to be asserted tending to weaken its claim, those will be pleaded. I have not gone into the detail of proposed arguments as to how many of the dozen or so requests for particulars the plaintiff says are still unsatisfied relate to the broad, important issue I have been canvassing. Mr Harding says it is only a couple. He is willing, he says, to have an argument about the sufficiency of the defendant's responses to all requests for particulars, notwithstanding that the letter of 27th of March 2008 had suggested deferring such aspects for later consideration if the defence were amended. I am not critical of Mr Harding or his client or solicitors for taking that approach; it is sensible enough to use the court hearing to resolve as much as can be resolved usefully. However, I think it is a rather sterile exercise for the court to embark on a detailed consideration of how a pleading which is likely to be amended ought to be particularised. I think that the court ought to order as follows: that the defendant file and serve an amended defence on or before 14 April 2008 to include a statement of any -- 5 of 6 -- 6 ORDER 1 10 20 30 40 50 60 oral term which it contends formed part of the parties' agreement; secondly, the Court should order that the application be adjourned to a date to be fixed to be brought on by a party providing two days written notice; and thirdly, the defendant pay the plaintiff's costs of the application and today's hearing. I would repeat the intimation I gave that if it turns out that there is to be a further hearing about particulars, success in that for the plaintiff would not necessarily lead to the plaintiff's obtaining another order for costs. I say that in deference to Mr Harding's intimation that he is willing to have everything sorted out today. I am not sure if Mr Sheaffe was so enthusiastic but that may be an unfair observation to make. The court was certainly not enthusiastic about embarking on what might be a hypothetical exercise, but the question of any such costs, if one arises, is going to be for the Judge who faces it. ... ----- -- 6 of 6 --