Earl Covington & Associates Pty Ltd v Bondley Pty Ltd [1999] QDC 256

IN THE DISTRICT COURT HELD AT MAROOCHYDORE QUEENSLAND [Before Dodds DCJ] [Earl Covington & Associates Pty Ltd v. Bondley Pty Ltd ACN 063 347 727] Plaint No. 49 of 1999 BETWEEN: EARL COVINGTON & ASSOCIATES PTY LTD Plaintiff AND: BONDLEY PTY LTD ACN 063 347 727 Defendant JUDGMENT Delivered on 6 October 1999 This was an application by the defendant for an order that the plaintiff discover all documents relevant to a flood study. There is no dispute that the plaintiff completed a flood study as part of its engagement by the defendant and the defendant is in possession of it. Rule 211 of the Uniform Civil Procedure Rules provides that the duty of disclosure of documents is in respect of documents “in the possession or under the control” of a party which are “directly relevant to an allegation in issue in the pleadings”. In its amended plaint the plaintiff claimed inter alia damages for breach of contract and equitable compensation/damages. It alleged the defendant hired it to manage a subdivision of land development on its behalf and then wrongly terminated its engagement. It sought inter alia payment for engineering work performed at the defendant’s request of which the defendant had taken the benefit, in particular payment of $32,958 on a quantum meruit which included $7,347 for a flood study. -- 1 of 3 -- 2 In its Entry of Appearance, Defence and Counter-Claim the defendant denied the pleading in the plaint wherein the claim was made for payment for engineering work on a quantum meruit. It asserted the engagement was properly determined by it. It pleaded that in that event the plaintiff was only entitled to payment on a quantum meruit in respect of work actually done before determination. In a letter dated 20 July 1999 written by the defendant after the amended plaint had been delivered, the defendant indicated an intention to amend its counter- claim to claim damages “as a consequence of the negligent completion by (the plaintiff) of the flood study”. It has not yet done so. The defendant has declined to disclose any document it has relevant to completion of the flood study. It contended that the issue on the pleadings about the flood study is whether the study was completed, not its quality. If completed before determination of the engagement, it claimed it is entitled to remuneration on a quantum meruit. It submitted the application was a fishing exercise in an attempt to shore up a claim in negligence in performing the flood study. The plaintiff’s claim on a quantum meruit is a claim for restitution of an amount which represents “fair and just compensation for the benefit…actually or constructively accepted” by the defendant: Pavey & Matthews Pty Ltd v. Paul (1986-87) 162 CLR 221 per Deane J at 263. The plaintiff must prove the work that was done was done with proper skill. The old Rule 182 required discovery of documents “relating to any matters in question in the action”. The new rule plainly altered the old rule. The authorities about what was required under the old rule eg. Compagnie Financiere Du Pacifique v. Peruvian Guano Co (1882) 11 QBD 55 and Mulley v. Manifold (1959) 103 CLR 341 no longer apply. A document now must be directly relevant to an allegation in issue in the pleadings to impose an obligation of disclosure. To this point in time all that is in issue in the pleadings about the flood study as a component of the claim for a quantum meruit is a general denial of the plaintiffs allegation that it performed engineering works (which included the flood study) at the request of the defendant, that the defendant has taken the benefit of the works carried out by the plaintiff and that a sum is claimed on a quantum meruit. Curiously in another part of the Entry of Appearance, Defence and Counter-Claim the defendant has pleaded that the plaintiff is entitled to payment on a quantum meruit in respect of work actually done before determination of the engagement. The plaintiff is required to disclose the flood study it completed. The defendant already has the study and this application is about compelling disclosure of -- 2 of 3 -- 3 working notes and data used in its compilation. On the state of pleadings there is no obligation to disclose any such documentation. The application is dismissed. I order the defendant pay the plaintiff’s costs of the application, such costs not to be assessed until the conclusion of the action. -- 3 of 3 --