Cook’s Construction Pty Ltd v Stork ICM Australia Pty Ltd [2004] QSC 66

SUPREME COURT OF QUEENSLAND File No S10993 of 2001 BETWEEN: Cook’s Construction Pty Ltd Applicant AND: Stork ICM Australia Pty Ltd Respondent MOYNIHAN J – REASONS FOR JUDGMENT CITATION: Cook’s Construction Pty Ltd v Stork ICM Australia Pty Ltd [2004] QSC 066 PARTIES: Stork ICM Australia Pty Ltd Applicant v Cook’s Construction Pty Ltd Respondent FILE NO/S: SC 10993 of 2001 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 16 March 2004 DELIVERED AT: Brisbane HEARING DATE: 18 November 2002 JUDGE: Moynihan J ORDER: 1. The Statement of Claim is struck out CATCHWORDS: Cases Cited Adamson v Williams McMurdo P Thomas JA Mullins J (unreported) [2001] QCA 38 16/02/2001 (00/9510) Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 1 -- 1 of 34 -- Crawley v Roley; Tanner v Roley White J (unreported) [2000] QSC 139 16/05/2000 (99/8417, 99/8418) Estate of Audrey Urbancic Muir J (unreported) [2000] QSC 170 09/06/2000(99/5996) Goldtaper Pty Ltd v Berela Pty Ltd White J (unreported) [2000] QSC 187 003/02/2000 Hurley v McDonald’s Australia Ltd [1999] FCA 1728 Louth v Diprose (1992) 175 CLR 621 Multiplex Constructions Pty Ltd v Rapid Contracting Pty Ltd (In Liquidation) Shepherdson J (unreported) [1998] QCA 10856/98 Pavey & Mathews Pty Ltd v Paul (1986) 162 CLR 221 Robinson v Laws de Jersey CJ Williams JA Mackenzie J (unreported) [2001] QCA 122 06/04/01 (00/4177) Smit v Chan Mackenzie J (unreported) [2001] QSC 70 16/03/2001 (95/1233) Stork Wescon Australia Pty Ltd v Morton Engineering Company Pty Ltd [2000] 2 Qd R 148 at 152 [14] Legislation Cited Land Act 1994 (Qld) Queensland Building Services Authority Act 1991 (Qld) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 1999 (Qld) COUNSEL: K Downes for the applicant J Digby QC with McGowan for the respondent SOLICITORS: Clarke & Kann for the applicant McCullough Robertson for the respondent Introduction [1] This is an application in an action arising out of the defendant having contracted to construct a plant to produce ammonium nitrate for Queensland Nitrates Pty Ltd at Moura in Queensland (the project). The defendant subcontracted aspects of the work to the plaintiff which now sues it for $1,654,510 for work allegedly done under the subcontract. 2 -- 2 of 34 -- [2] The defendant brings this application for:- (a) summary judgment on a number of claims; (b) summary judgment or alternatively striking out of additional claims; (c) striking out of more claims; (d) striking out or alternatively for particulars in respect of claims. [3] The plaintiff’s claim is evolving. The proceedings were instituted in the Supreme Court of Victoria on 5 March 2001. There was a response to the defendant’s request for further and better particulars of the original statement of claim on 5 July 2001. An amended statement of claim was delivered on 24 July 2001 and on 27 July the matter was remitted to this Court. A defence and counter-claim was filed on 17 August 2001 and a reply on 4 September 2001. [4] Further editions of the statement of claim were filed on 21 February and 26 April 2002. An exchange of correspondence about these statements of claim between solicitors took place and presumably each of the editions was a product of that. [5] The original version of this application was filed on 26 April 2002 but on 27 June 2002 the defendant amended it, essentially to reflect the numbering system of the 26 April edition of the statement of claim. [6] The matter proceeded before me on the basis of the application as it stood on 27 June 2002 (the Application) dealing with the 26 April edition of the Statement of Claim (the Statement of Claim). [7] The pleadings, particulars (requested or supplied with a pleading) together with various schedules to the pleadings, oral and written submissions and accompanying schedules are both complex and voluminous. In a number of respects the organisation and treatment of issues in these documents is not compatible as between different document sets. [8] The application proceeded on the basis of affidavit evidence. None of the deponents was called or cross-examined. The same comments as I have made about the pleadings, particulars and submissions apply to the affidavits. By way of further complication, there are areas of fact where the extent to which issues are joined is far from clear. [9] I have not undertaken an exhaustive examination to identify all of the non contentious or contentious issues. I have made such factual findings for the purpose of the application as are reflected in these reasons on the basis that they were open on evidence which appeared to be uncontentious. [10] A number of complaints about the Statement of Claim canvassed in the exchange of correspondence between solicitors and in the written submissions relate to matters which are accepted as oversights, slips or typographical errors. These were not pursued on the basis that they would be sorted consensually and are not dealt with in these reasons. 3 -- 3 of 34 -- [11] The project involved carrying out civil engineering works. These included excavation for roads and buildings, road construction, the construction of evaporation ponds, foundations, buildings and fixtures for plant used to produce ammonium nitrate. These were the subject of the subcontract. Other contractors were responsible for the balance of the project works. [12] The project structures included an ammonia plant building, a compressor building, a nitric acid plant building and a prill storage building. Prill is material which is the outcome of the manufacturing process. The structures involved concrete footings, concrete walls and concrete fixtures to support plant constructed by the plaintiff under the subcontract. The Application [13] Paragraph 1 of the Application seeks summary judgment in the plaintiff’s claim for payment for subcontract work which the defendant “expressly or by implication” requested “in the nature of a variation” or which was extra work under the subcontract. [14] The basis of the application in para 1 is that the plaintiff carried out building work without the licences necessary under the Queensland Building Services Authority Act1 (the Building Services Act or the Act) and hence can recover for the work only in terms of s42(4) of the Act. [15] Paragraphs 2 and 3 of the Application seek that nominated paragraphs of the Statement of Claim be struck out pursuant to r 171 of the Uniform Civil Procedure Rules2 as tending to prejudice or delay the fair trial of the action. Alternatively, orders are sought that the plaintiff deliver further and better particulars of those claims which were sought by a request of 5 June 2001. [16] Paragraphs 4 of the Application seeks that nominated paragraphs of the statement of claim be struck out on the basis that they disclose no reasonable cause of action, have a tendency to prejudice or delay the fair trial of the action and are vexatious. [17] Paragraph 5 is not persisted in. [18] There are then a number of applications to strike out parts of the Statement of Claim, pleaded to found the following causes of action: a) breach of an implied term of the contract to act in good faith; b) breach of a duty of care owed to the plaintiff; c) misleading, deceptive and unconscionable conduct in contravention of the Trade Practices Act3, of ss51AA and 52; d) unjust enrichment. 1 1991 (Qld) 2 1999 (Qld) 3 1974 (Cth) 4 -- 4 of 34 -- [19] The claims under these headings are essentially founded on allegations that the defendant is in breach of an obligation to warn the plaintiff about the Building Services Act, the obligations it imposes as to licences and the consequences of the breach of that requirement on payment for the work. [20] Paragraphs 6 and 7 of the Application seek summary judgment or striking out for the claim advanced in paragraphs 173, 174 and 175 of the Statement of Claim which sue for damages for breach of an implied term of good faith. [21] Paragraph 8 of the Application seeks to strike out nominated paragraphs of the Statement of Claim pursuant to r 171 of the UCPR as vexatious and scandalous. These relate to the defendant’s alleged state of mind relevant to the claims canvassed by paragraph 6, 7, 9, 10, 11, 12, 13, 14 of the Application. [22] Paragraphs 9 and 10 of the Application seek summary judgment or striking out for the claims advanced by paragraphs 176, 177 and 178 of the Statement of Claim. These paragraphs allege a breach of the defendant’s duty of care to the plaintiff by failing to warn it of the implication of Building Services Act. [23] Paragraphs 11 and 12 of the Application seek summary judgment or striking out of paragraphs 179, 182, 186, 187, 190, 191 and 192 of the Statement of Claim. These paragraphs advance a claim under the Trade Practices Act founded on allegations of misleading, deceptive or unconscionable conduct on the part of the defendant in not alerting the plaintiff to the Building Services Act issues. [24] The final application in this category is found in paragraphs 13 and 14 of the Application. They relate to paragraphs 194 and 195 of the Statement of Claim which advances a claim based on unjust enrichment. [25] I propose dealing first with the summary judgment and alternative striking out claims found in paragraphs 1, 6, 7, 9, 10, 11, 12, 13 and 14 of the Application. It is convenient to then deal with paragraph 8 before returning to consider paragraphs 2, 3 and 4 Relevant Contractual Terms. [26] The subcontract consists of an instrument of agreement with a number of sets of documents identified as C, D, E, F, G, H, I, J,K, L and M exhibited to it. Provisions of the subcontract which are particularly relevant to the issues arising on the Application are set out below. [27] Exhibit C is a collection of subcontract schedules. Exhibit D is the General Conditions of Subcontract. [28] Clause 3 of Exhibit D to the subcontract provides: 5 -- 5 of 34 -- 3 NATURE OF SUBCONTRACT 3.1 Performance and Payment The Subcontractor shall execute and complete the work under the Subcontract; Stork shall pay the Subcontractor; (a) for work for which Stork accepted a lump sum, the lump sum; (b) for work for which Stork accepted rates, the sum ascertained by measurement and determination of the quantities in accordance with Clause 3.2 and multiplying the quantity so measured and determined of each section or item of work carried out under the Subcontract by the rate accepted by Stork for the section or item adjusted by any additions or deductions made pursuant to the Subcontract 3.2 Quantities. Quantities in a Bill of Quantities or Schedule of Rates are estimated quantities only. A direction shall not be required to be given by Stork’s Representative by reason of the actual item required to perform the Subcontract being greater or less than the quantity shown in the Bill of Quantities or Schedule of Rates. Unless otherwise stated within the contract, “actual quantities” shall mean those quantities measured in accordance with Australian Standard 1181- 1982, as amended from time to time, from the lines, dimensions and limits shown on the relevant Contract plans and drawings. Quantities over and above the actual quantities as a result of oversupply, over excavation or any other similar reason by the Subcontractor will not be included in the actual quantities and the Subcontractor agrees that Stork is not required to pay for these quantities over and above the actual quantities. 3.3 Adjustment for Actual Quantities – Schedule of Rates Where otherwise than by reason of a direction of Stork’s Representative to vary the work under the Subcontract, the actual quantity of an item required to perform the Subcontract is greater or less than the quantity shown in the Schedule of Rates; (a) where Stork accepted a lump sum for the item, the difference shall be valued under clause 45.5 as if it were varied work directed by Stork’s Representative as a variation; 6 -- 6 of 34 -- (b) where Stork accepted a rate for the item, the rate shall apply to greater or lesser quantities provided that where limits of accuracy are stated in the Annexure the rate shall apply to the greater or lesser quantities within the limits and quantities outside the limits shall be valued under Clause 45.5 as if they were varied work directed by Stork’s Representative as a variation. If a Schedule of Rates omits an item which should have been included, the item shall be valued under Clause 45.5 as if it were extra work directed by Stork’s Representative as a variation [29] Clause 2 of Exhibit C to the subcontract provides: 2.0 Measurement for Payment The Subcontractor shall execute the work under the Subcontract and fulfil all Subcontractors obligations there under, and Stork shall pay the subcontractor of the measured quantity of each item of the work performed under the Subcontract as certified by Stork at the appropriate rate in the Subcontract Schedule part A – “subcontract Price Schedule and Bill of Quantities”. All items shall be measured net in-situ to the profiles and dimensions shown on the Drawings or described in the Scope of work and Specification and Subcontractor shall allow for wastage in the rates for the net quantities given in the Subcontract Schedule Part A – “Subcontract Price Schedule and Bill of Quantities”. Upon issue by Stork of the `Approved for Construction’ Drawings for the work and prior to construction of work covered by the Drawings, Stork and Subcontractor shall jointly review the Drawings and agree on the rate items applicable to the work shown on the Drawings. Measurement of work shall be made in accordance with the conditions set out hereunder. 2.1 Civil Works. 2.1.1 Excavation (General) (a) The volume measured for the excavation of a structure or foundation shall be the volume which is to be either occupied by or vertically above any part of the structure or foundation, or in accordance with Clause 2.1.2 for drainage or culverts, and shall not include for working space or 7 -- 7 of 34 -- planking and strutting for structural excavation which shall be allowed for by the Subcontractor and included in the unit rate. (b) All excavations have been given in cubic metres. (c) Rates for excavations shall include for: (i) Land or machine excavation as found expedient or required by the nature of the work or the prevailing Site conditions in any material encountered other than brick or concrete and whether above or below the ground water levels occurring at site. Rippable rock is defined as rock that can be ripped out by a dozer of 300 kW engine power and matching single tooth hydraulic ripper at the rate of 25 m3/hour solid or more and shall include boulders up to 0.8 m3 in volume or boulders that can be picked out and removed without further breaking up. Solid rock is defined as rock that cannot be ripped out as defined above or boulders that cannot be picked out without further breaking up, but requires to be broken up by rock breaker, jackhammer or other approved means. (ii) Leveling and compacting bottoms of excavations where required by the Scope of Work, Specifications and Drawings. (iii) Increase or decrease in bulk material (iv) Keeping the excavations free from water by construction of temporary drainage ditches, pumping, bailing or any other method necessary to ensure that work can proceed at all times having particular regard to the Site water table (v) Provision of water for structural requirements and for dust suppression. (vi) Trim, prepare and hand dig bottom of excavations as necessary. 8 -- 8 of 34 -- (vii) Removal of surplus excavated material from Site, unless otherwise specified. (d) Where excavations are in or adjacent to roads or structure the rates shall include all measures required to maintain the structural integrity of the excavated face. [30] Clause 45 of Exhibit D to the subcontract deals with variations: 45 VARIATIONS 45.1 Stork’s Representative may direct the Subcontractor to: (a) increase, decrease or omit any part of the work under the Subcontract (b) change the character or quality of any material or work; (c) change the levels, lines, positions or dimensions of any part of the work under the Subcontract; (d) execute additional work; and/or (e) demolish or remove material or work no longer required by Stork. The Subcontractor shall not vary the work under the Subcontract except as directed by Stork’s Representative or approved in writing by Stork’s Representative under Clause 45. The Subcontractor is bound only to execute as variation directed rectification work referred to in Clause 42. 45.2 Proposed Variations Upon receipt of a notice in writing from Stork’s Representative advising the Subcontractor of a proposed variation under Clause 45, the Subcontractor shall advise Stork’s Representative, in writing within 5 days, whether the proposed variation can be effected. If the variation can be effected, the Subcontractor shall; (a) advise Stork’s Representative of the effect which the Subcontractor anticipates that the variation will have on the construction program and time for Substantial Completion; and (b) provide an estimate of the cost (including delay costs, if any) of the proposed variation. Stork shall reimburse the Subcontractor for the reasonable costs of complying with the requirements of Clause 45.2. 9 -- 9 of 34 -- 45.3 Pricing the Variation Unless Stork’s Representative and the Subcontractor agree upon the price for a variation, the variation directed or approved by Stork’s Representative under Clause 45.1 shall be valued under Clause 45.5. Stork’s Representative may direct the Subcontractor to provide a detailed quotation of the work of a variation supported by measurements or other evidence of cost. 45.4 Variations for the Convenience of the Subcontractor If the Subcontractor requests Stork’s Representative to approve a variation for the convenience of the Subcontractor, Stork’s Representative may do so in writing. The approval may be conditional. Unless Stork’s Representative otherwise directs in the notice approving the variation, the Subcontractor shall not be entitled to (a) an extension of time for Substantial Completion; or (b) extra payment; in respect of the variation or anything arising out of the variation which would not have arisen had the variation not been approved. Stork’s Representative shall not be obliged to approve a variation for the convenience of the Subcontractor. 45.5 Valuation Where the Subcontract provides that a valuation shall be made under Clause 45.5, Stork shall pay or allow the Subcontractor, or the Subcontractor shall pay or allow Stork, as the case may require, an amount ascertained by Stork’s Representative as follows: (a) if the Subcontract prescribes specific rates or prices to be applied in determining the value, those rates or prices shall be used; (b) if Clause 45.5(a) does not apply, the rates or prices in a Priced Bill of Quantities or Schedule of Rates shall be used to the extent that it is reasonable to use them; (c) to the extent that neither Clause 45.5(a) or 45.5(b) apply, reasonable rates or prices shall be used in any valuation made by Stork’s Representative; 10 -- 10 of 34 -- (d) in determining the deduction to be made for work which is taken out of the Subcontract, the deduction shall include a reasonable amount for profit and overheads; [31] Finally, Exhibit D provides: 16. LEGISLATIVE REQUIREMENTS 16.1 Complying with Legislative Requirements Subcontractor must at all times comply with all Legislative Requirements, and is responsible for obtaining all necessary approvals and consents to enable the Works to be constructed. For the purpose of this contact, Legislative Requirements includes the following requirements; (a) Acts of the Commonwealth; (b) Acts and Ordinances of the State or Territory in which the work under the Subcontract or any part thereof is carried out; (c) Ordinances, regulations, by-laws, orders and proclamations under the Acts and Ordinances; (d) Persons acting in the exercise of statutory powers enabling them to give directions affecting the work under the subcontract. Legislative Requirements includes: (a) Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth and the State or Territory in which work under the Subcontract or any part thereof is being carried out; (b) Certificates, licences, consents, permits, approvals and requirements of government or local government organisations having jurisdiction in connection with the carrying out of the work under the Subcontract; (c) Fees and charges payable in connection with the foregoing and which are generally applicable in the State of Queensland or the shire of Banana; [32] The plaintiff’s claims are largely for work done under the contract. It is not however clear if some claims are for work outside the subcontract. If they are, the plaintiff must identify them and plead the basis of justification for payment. [33] The plaintiff must identify the contractual provisions under which the claim is made including, for example, those by which the quantities and rates claimed are set. It 11 -- 11 of 34 -- must also plead facts establishing that the contractual requirements for payment have been complied with. [34] Some claims are for variations. The subcontract (cl 45.2 of Exhibit D) provides to the effect that on receiving a notice of proposed variation the plaintiff is to advise whether it could be effected. If it can the plaintiff is to advise of any effect on the progress of the contract and provide an estimate of the cost (including any delay costs) of the proposed variation. [35] The clause concludes by providing that the defendant will reimburse the plaintiff for the “reasonable costs of complying with the requirements of cl 45.2”. In my view, this reference does not refer to the cost of carrying out of the variation itself. I mention this because where the Statement of Claim refers to “reasonable” costs it cannot be referrable to this clause and the basis for each reasonable cost claim must be pleaded. [36] The pricing of variations is provided for by cl 45.3. This provides that in the absence of agreement “upon the price of the variation” it is to be valued under cl 45.5. If agreement is relied on, it seems it is not in most cases, it must be pleaded. [37] Clause 45.5 provides that the defendant is to pay an amount ascertained by its representative on the following basis: (a) if the subcontract prescribes specific rates or prices they are to be used; (b) if it does not the rates or prices on a priced bill of quantity of schedule of rates are to be used to the extent to which it is reasonable; (c) if neither (a) nor (b) applies reasonable rates or prices are to be used. In other words, “reasonable rates” are payable only when (a) or (b) do not apply. If the plaintiff is suing for an amount ascertained by the defendant’s representative it must plead and particularise that. If the plaintiff does not accept that an ascertainment is appropriate it must plead and particularise that basis for that contention. If there is no “ascertained” amount the plaintiff must plead and particularise the basis for the claim notwithstanding there is no “ascertained” amount. [38] The subcontract (cl 2 of Exhibit C) provides as to measurement for payment for work done under the subcontract. Put shortly, payment is for work “measured in-situ” to the profiles and dimensions shown in the relevant “Drawings or described in the Scope of Work and Specification”. [39] It is essential, for example, that the plaintiff gives sufficient particulars to enable the defendant to investigate whether the quantities claimed are “actual quantities” in terms of cl 3.1 of Exhibit D to the subcontract. The defendant is not, for example, required to pay for excavation over and above “actual quantities”. 12 -- 12 of 34 -- [40] In terms of determining quantity, the relevant considerations are those in cl 2 of Exhibit C. For the purposes of pleading the claim the plaintiff must identify, for example, the “Drawings” on the “Approved for construction Drawings” referred to in the clause. It is not sufficient, for example, to identify documents calculating the quantities actually excavated or claimed on plans and drawings referred to, those quantities or their calculation. The Pleading Rules [41] The philosophy of the UCPR is provided by r 5. The purpose of the rules is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”4. As such, the courts are to apply the rules “with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules”5. [42] Rule 149 of the UCPR provides that each pleading must be brief, state the material facts upon which a party relies but not the supporting evidence, specifically state any matter that may take another party by surprise if not stated, specify any relief that party claims6 and identify specific provisions under the Act that a claim or defence rely upon. [43] Rule 150 of the UCPR directs that following must be specifically pleaded7: (a) breach of contract; (b) every type of damage claimed including, but not limited to, special and exemplary damages; (c) interest including the rate of interest and method of calculation claimed; (d) misrepresentation; (e) motive, intention or other condition of mind, including knowledge or notice; (f) negligence; (g) payment. [44] Rule 155 provides that where damages are claimed in a pleading, the nature and amount must be stated.8 Further, where a party claims general damages they must include particulars of the nature of the loss or damage suffer, the circumstances of the loss or damage suffered and the basis on which the amount claimed has been calculated in the pleadings.9 Where practicable, the party should plead each type of general damages and the nature of the damages claimed for each type.10 [45] Particulars in a pleading are dealt with by rr 157 and 158 of the UCPR. Pleading particulars supplied must sufficiently define the issues “for, and to prevent surprise at, 4 r 5(1) UCPR 5 r 5(2) UCPR 6 subject to r 156 (General Relief) UCPR 7 without limiting r 149 UCPR 8 r 155(1) UCPR 9 r 155(2)(a)-(c) UCPR 10 r 155(3) UCPR 13 -- 13 of 34 -- the trial”11, enable the opposing party to plead12 and support matters specifically pleaded under r 15013. Where a party claims damages which include money the party has paid or is liable to pay, the pleading must contain particulars of the said payment or liability.14 [46] The UCPR introduced a new pleading regime. Their effect was stated by the Court of Appeal in Robinson v Laws15 by de Jersey CJ in these terms: 52. …The system of pleading in this State is geared to early comprehensive disclosure of the case to be mounted by the plaintiff, and the response of the defence. Beyond that, it remains geared, consistently with good commonsense, upon the plaintiff’s having the obligation to define the case he mounts, such that whether he succeeds depends on his sustaining that case. Civil litigation is, sensibly must be, claimant driven. 53. The Uniform Civil Procedure Rules are premised on the need for that early, comprehensive definition of the case being mounted, and that equally early responsive definition of the position of the defence. R5(1) states that the purpose of the rules is to facilitate “the just and expeditious resolution of the real issues in civil proceedings at the minimum of expense”. R157 obliges a party to include in that party’s pleading “particulars necessary to…define the issues for, and prevent surprise at, the trial.” The objective is early definition of the points at issue, and where possible their limitation. 54. But importantly, the rules additionally assume that it falls primarily to the plaintiff to define the case he intends to advance. The practice is based on the notion that the plaintiff sets up and defines his case: unless he established the case so defined, judgment goes to the defence. [47] Where a pleading, or part of a pleading discloses no reasonable cause of action, may prejudice or delay a fair trial, is unnecessary or scandalous, is frivolous or vexatious or can be considered an abuse of process of the court16 the court may strike out all or any part of the pleading at any stage of the proceeding17. Upon the hearing of an application to strike out a pleading the court is not limited to receiving evidence about the pleading18 and may award costs of the application to be paid by a party and calculated on an indemnity basis.19 [48] In my view, the Statement of Claim consistently fails to comply with these requirements. I turn now to the Application. 11 r 157(a) UCPR 12 r 157(b) UCPR 13 r 157(c) UCPR 14 r 158(1) UCPR 15 de Jersey CJ Williams JA Mackenzie J (unreported) [2001] QCA 122 06/04/01 (00/4177) 16 r 171(1)(a)-(e) UCPR 17 r 171(2) UCPR 18 r 171(3) UCPR 19 r 171(2) UCPR 14 -- 14 of 34 -- Application - paragraph 1 (Summary judgment in claims where the defendant says a licence was required). [49] This paragraph of the Application related to work done in the following categories:- Asphalt $ 37,279 Pedestal summary $ 34,307 Prill store building $395,236 [50] These claims on issue are based on the defendant having, “expressly or by implication, requested extra work in the nature of variation” which the plaintiff carried out but which the defendant has not paid for. I note that in respect of these and other claims in some cases there has been part payment but for purposes of these proceedings that is irrelevant. [51] Matters bearing on carrying out the work which is the subject of these claims are extensively deposed to in the several affidavits of Messrs Jewell, Deary, Harris and Eddie. They reveal that components of the various claims referred to in para [50] are not without complexity in some respects although they are clear enough in others. Generally speaking, the factual issues which arise are not to be resolved in this proceeding. [52] The court’s power to grant summary judgment is founded in r 293 of the UCPR. The rule provides to the effect that the court may give summary judgment for a defendant for all or part of a claim if it is satisfied that “there is no prospect of success or no need for a trial”. [53] It is for the defendant to demonstrate that there is no real question to be tried, that the claims the subject of the summary judgment Application are patently lacking in merit. The obligation on a defendant seeking summary judgment is the same as that on a plaintiff and the power to stop a plaintiff pursuing a claim given by the Rule must be exercised with great care; see Crawley v Roley; Tanner v Roley20, Smit v Chan21 and Estate of Audrey Urbancic22 and the cases there cited. [54] The defendant seeks summary judgment in of claims identified in para [50] on the basis that the plaintiff’s work involved “building work” in terms of the Building Services Act. The plaintiff was therefore required to hold a contractor’s licence of the appropriate class under the Act. It is common ground that the plaintiff did not have a licence. Therefore the plaintiff cannot recover on the basis sued on but only in terms of s42(4) of the Act. 20 White J (unreported) [2000] QSC 139 16/05/2000 (99/8417, 99/8418), 21 Mackenzie J (unreported) [2001] QSC 70 16/03/2001 (95/1233) 22 Muir J (unreported) [2000] QSC 170 09/06/2000(99/5996) 15 -- 15 of 34 -- [55] The claims do not seem to me to be pleaded in terms of a claim unde s 42(4) of the Act. The point needs to be clarified. Any claim under s42(4) should be properly pleaded in the statement of claim. In an earlier round of pleadings the plaintiff pleaded (in an amended reply of 2 November 2001), a claim under s42(4). There is, however, correspondence suggesting that such a claim is not being pursued. The Building Services Act Provisions [56] Section 42(1) of the Building Services Act provides that a person must not carry out or undertake to carry out building works without a contractor’s licence of the appropriate class. [57] Schedule 2 of the Act relevantly defines “building work” to include: (a) the erection or construction of a building; or... (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or (f) the preparation of plans or specifications for the performance of building work;…23 [58] “Building” is defined by schedule 2 of the Act to “include any fixed structure.” [59] Section 42 further provides: (1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act. (2) For the purposes of this section- (a) a person carries out building work whether that person carries it out personally, or directly or indirectly causes it to be carried out; and (b) a person is taken to carry out building work if that person provides advisory services, administration services, management services or supervisory services in relation to the building work; and (c) a person undertakes to carry out building work if that person enters into a contract to carry it out or submits a tender or makes an offer to carry it out. (3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so. 23 But does not include work of a kind excluded by regulation from the ambit of this definition. 16 -- 16 of 34 -- (4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed- (a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and (b) does not include allowance for any of the following: (i) the supply of the person’s own labour; (ii) the making of a profit by the person for carrying out the building work; (iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and (c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and (d) does not include any amount paid by the person that may fairly be characterised as being, In substance, an amount paid for the person’s own direct or indirect benefit.” The Asphalt Claim [60] This claim is dealt with in paragraphs 63 to 65 of the Statement of Claim. It is alleged that the subcontract provides that asphalt for the site roads would be laid to a 40 millimetre nominal thickness at a rate of $11.76 per square metre. The plaintiff, however, alleges it was directed to lay asphalt to a nominal thickness of 50 millimetres at an agreed rate of $14.70 per metre. The claim is for $36,279, the difference between the $215,149 claimed by the plaintiff and the $177,870 paid by the defendant. [61] The roads in question are internal site roads on land owned by the project owner and they are neither gazetted nor declared for public use under the Land Act24. The defendant submits that the work is site work in terms of the definition of building work under the Act and not within any exception by regulation. [62] Schedule 2 of the Building Services Act defines “site work” to mean, relevantly for present purposes: (a) the erection or construction of a building; (c) the provision of lighting, heating, ventilation etcetera in connection with a building; or (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or (f) the preparation of plans or specifications for the performance of building works; [63] On the facts as they stand it is arguable that the site roads are independent components of the works which in total make up the project. It is also arguable that, 24 1994 (Qld) 17 -- 17 of 34 -- however broadly “related to” is construed, where it appears in the schedule 2 definition of “building works” the asphalt claim is not sufficiently connected to “the erection or construction of a building referred to above” to satisfy the requirement of a relationship in terms of the definition. [64] In my view, therefore it cannot be said this claim has no prospect of success or that a trial is not necessary. The Pedestal Summary Claim [65] The pedestal summary claim is to be found in paragraphs 87(c) and (d), 88(c), 90, 90A, 92, 94 and 95 of the Statement of Claim. [66] Pedestals are described as minor concrete works coming off from the foundations of a building to provide a base for attaching equipment. The claim relates to the cost of measuring and documenting quantities used by the plaintiff in carrying out work under the subcontract which is identified by the Statement of Claim. The defendant submits that this work constitutes “administration services” in terms of s42(2)(b) of the Act. [67] On the facts as they stand, I think it is arguable that the work claimed under this heading was simply an incident of the plaintiff’s work under the subcontract. [68] It was necessary to quantify it for the purposes of the subcontract. Such work is not “administration services”; the term connotes the provision of separate services not services integral to the subcontract. There should not be summary judgment on this claim. The Prill Store [69] This claim is advanced by paragraphs 128 to 135 of the Statement of Claim. Paragraph 128 alleges that the plaintiff was to construct a prill store building with a slab on the ground and form work walls. Paragraph 129 alleges that from time to time the defendants “for construction” drawings changed the position or dimensions of the original work. The plaintiff sues to recover the extra cost it alleges was a consequence of the changes effected by the drawings. [70] The prill store is essentially a building to store product of the process for which the project works were built. There is no occasion to doubt it is a building and that the plaintiff’s work included aspects of its erection or construction; see Multiplex Constructions Pty Ltd v Rapid Contracting Pty Ltd (In Liquidation)25. In that case, the erection of a prefabricated panel as part of the construction of a building was sufficient to satisfy s 42. 25 Shepherdson J (unreported) [1998] QCA 10856/98 18 -- 18 of 34 -- [71] The fact that earthworks and excavation were carried out to prepare the building site, or that provision was made for equipment to hoist and convey the prill does not make what was otherwise building work become something else. That it was necessary to store the prill and so to provide a store building does not make it integral to the manufacture process so as to except it from the Act. Finally, that the plaintiff did not do all the building work for the prill store does not change the character of the building work the plaintiff carried out. [72] The issue in these circumstances then is to identify the components of the plaintiff’s work on the prill store that constituted “building work” and are the subject of this claim, and to distinguish work which is not “building work”. This is a question of fact and is of some complexity and contention. The question of severance, which itself gives rise to complex factual issues, may then arise c.f. Stork Wescon Australia Pty Ltd v Morton Engineering Company Pty Ltd26. This is not an exercise for a summary judgment claim. [73] The issues being those I have identified the application for summary judgment in the asphalt, pedestal summary and prill store building should be dismissed. Application – The balance of the Summary Judgment or Alternatively Striking out Claims (Paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Application) [74] The claims under this head are conveniently labelled as: (a) breach of an implied contractual term (breach of contract); (b) breach of duty of care (negligence); (c) breach of the Trade Practices Act; and (d) unjust enrichment. [75] Although there are separate applications dealing with the pleading of separate causes of action there is a degree of commonality among the claims which make it convenient to deal with them collectively. There is also a commonality of complaints about the claims under this head so that it is necessary to repeat consideration of many issues. [76] Generally speaking, the causes of action are each centred on allegations to the effect that the defendant was in breach of obligations to warn the plaintiff of the application of the Building Services Act to work under the subcontract, of the need for a licence in those circumstances and the consequences of carrying out unlicensed work. The claims in more detail are as follows. [77] Paragraphs 6 (summary judgment) and 7 (strike out) of the Application refer to a claim for damages for breach of contract made by paragraphs 173, 174 and 175 of the Statement of Claim. In essence, these paragraphs allege that the defendant was in breach of an implied term to act in good faith because it did not draw the plaintiff’s attention to the provisions of the Building Services Act, their application to work 26 [2000] 2 Qd R 148 at 152 [14] 19 -- 19 of 34 -- under the subcontract and the consequences of not complying with those terms by carrying out work without a licence. [78] The consequence of non compliance is to restrict recovery for work done to what is allowed by s 42(4) of the Act. It is noteworthy that the claim for damages under this and the other heads apparently assumes that the amount recovered will exceed that recovered under s 42(4) and does not bring into account any amount recoverable under the sub-section. [79] Paragraphs 9 (summary judgment) and 10 (strike out) of the Application refer to paras 179, 182, 186, 187, 190, 191, 192 of the Statement of Claim. These paragraphs are designed to advance a claim of negligence founding an award for damages based essentially on the same considerations as the implied term claim. [80] Paragraphs 11 (summary judgment)and 12 (strike out) of the Application refer to paragraphs 179, 182, 186, 187, 190, 191 and 192 of the Statement of Claim which are designed to advance a claim of breach of ss 55 and 55A of the Trade Practices Act which prohibit false, misleading or unconscionable conduct. The claims are based on the same contentions of an obligation to warn the plaintiff of the implications of the Building Services Act. [81] Paragraphs 13 (summary judgment) and 14 (strike out) of the Application refer to paragraphs 194 and 195 of the Statement of Claim which seek to advance a claim of unjust enrichment, again based on essentially the same considerations as the claims just canvassed. [82] It is convenient to dispose of paragraph 8 of the Application once those applications are dealt with. That paragraph seeks that designated paragraphs of the Statement of Claim be struck out pursuant to r 171 of the UCPR on the grounds that they are vexatious and scandalous. The designated paragraph plead the defendant’s state of mind or knowledge in support of the breach of contract, negligence, Trade Practices Act and unjust enrichment claims. Breach of Contract [83] The breach of an implied contractual term of good faith is pleaded by paragraphs 173, 174 and 175 of the Statement of Claim. These paragraphs are set out below. For convenience, I have omitted the markings identifying the particular edition of the Statement of Claim by which various paragraphs were inserted or amended. [84] Paragraph173 pleads that it was an implied term of the subcontract that the parties would act in good faith towards each other in performance of the subcontract. [85] Paragraph 174 then provides: 20 -- 20 of 34 -- 174 In breach of the said term the defendant failed to act in good faith towards the plaintiff in the performance of the construction contract. PARTICULARS (a) By clause 3.1 of Exhibit D to the construction agreement the defendant agreed that if the plaintiff executed and completed the work under the construction agreement, adjusted by any additions or deductions made pursuant to the construction agreement, the defendant would pay the plaintiff: (i) for work for which the defendant accepted a lump sum, the lump sum; (ii) for work for which the defendant accepted rates the sum ascertained by measurement and determination of the quantities in accordance with clause 3.2 of the construction agreement and multiplying the quantity so measured and determined of each section or item of work carried out under the construction agreement by the rate accepted by the defendant for the section or item; (b) In accordance with the terms of the construction agreement the Plaintiff executed and completed the work under the construction agreement as adjusted by the variations agreed to by the plaintiff and the defendant. (c) The defendant allowed the plaintiff to execute and complete the work under the construction agreement as adjusted by the variations agreed to by the plaintiff and the defendant, which work the plaintiff believed constituted “building work” as defined by the Queensland Building Services Authority Act 1991 (Qld) (“the QBSA Act”) well knowing, but without informing the plaintiff of the fact that, in the event that the defendant failed, refused or neglected to pay the plaintiff in accordance with the provisions of the construction agreement for the work executed and completed by the plaintiff as adjusted by the variations agreed to by the plaintiff and the defendant, as is in fact the case, and in the event that the plaintiff was not licensed s required by the QBSA Act, the plaintiff would not be entitled to any monetary or other consideration due to it under the construction agreement other than in accordance with s42(4) of the QBSA Act PARTICULARS (iii) Between 31 August 1959 and 1 January 1996 the defendant was known as World Services and construction Propriety Limited (“World Services”). Between 2 January 1996 and 31 March 1997 the defendant was known as Stork Wescon Australia Pty Ltd. (“Stork Wescon”). (iv) In or about November 1995 World Services entered into a contract with Santos Limited for the construction of the Ballera Gas Centre Phase II (“the project”). On or about 2 May 1996 Stork Wescon entered into an agreement (“the subcontract agreement”) with Morton engineering co Pty 21 -- 21 of 34 -- Limited (“Morton Engineering”) for the execution of certain work for the Project being the fabrication, delivery and erection of steel works. Pursuant to the subcontract agreement Morton Engineering undertook the fabrication in Brisbane, the transport to the site, and the erection there of the structure supporting part of a pipeline system for the Project. (v) In or about March 1997 Morton Engineering gave a Notice of a Claim of Charge Being given to Stork Wescon pursuant to the Subcontractors Charges Act 1974. (vi) By application heard in the Supreme Court of Queensland before Derrington J on 26 may 1998 Stork Wescon claimed that Morton Engineering was not licensed under the QBSA Acct, and that the work undertaken by Morton Engineering pursuant to the subcontract was “building work” as defined by the QBSA Act, and thus work required to be done by a licensed building. In the premises it was alleged that Morton Engineering had no claim to be paid. (vii) In the premises at the time the plaintiff and the defendant entered into the construction agreement the defendant: (aa) knew of the existence of the QBSA Act; (bb) knew of the nature and effect of the QBSA Act, (cc) knew of the requirement for builders to be licensed under the QBSA Act in order to lawfully carry out “building work” as defined by the QBSA Act; (dd) knew that in the event that the plaintiff undertook “building work” as defined by the QBSA Act it would not be entitled to recover monetary or other consideration save as set out in s 42 (f) of the QBSA Act; (ee) was aware that the plaintiff would not have entered into the construction agreement if it had been aware that in so doing it: (y) was acting unlawfully: PARTICULARS Pursuant to paragraph 4.1(e) of Exhibit D to the Tender Document Subcontract Number QNP-001 the plaintiff agreed to execute and complete the work under the subcontract so that the works when completed would, inter alia, comply with all Legislative Requirements (as defined therein). (z) would not be, upon execution and completion of the work that it was required to perform under the construction agreement as adjusted, entitled to receive the contract price as determined therein. PARTICULARS: By a series of documents passing from the defendant to the plaintiff and the plaintiff to the defendant and referred to in 22 -- 22 of 34 -- the defendant’s Fax of Award dated 9 June 1998 (which document are in writing and copies of which is in the possession of the solicitors for the plaintiff and may be inspected by appointment) the then contract price of $8,753,389.83 was negotiated and agreed between the plaintiff and the defendant as the sum for which the plaintiff would undertake the contract works. (b) By its Defence and Counterclaim filed herein the defendant alleges, inter alia: (i) that the plaintiff supplied materials and labour and performed works for the defendant (“the works”); (ii) that the works were performed in Queensland; (iii) that the works included “building works” as defined in the QBSA Act (“the building work portion of the works”); (iv) that the plaintiff was required to hold a licence of the appropriate class to lawfully perform the building work portion for the works; (v) that the plaintiff did not hold a licence of the appropriate class when performing the building work portion of the works; (vi) that the defendant made progress payments to the defendant on account of the performance by or on behalf of the plaintiff of the works including the building portion of the works; (vii) that the progress payments comprised “monetary or other consideration” for the purposes of s42(3) of the QBSA Act. (viii) That the plaintiff was not entitled to claim or receive the said progress payments save in accordance with s42(4) of the QBSA Act. (c) The defendant has failed refused and/or neglected to pay the plaintiff for the works, alternatively all of the works, the plaintiff has executed and completed under the construction agreement as adjusted by the variations agreed to by the plaintiff and the defendant and seeks orders from this Honourable Court for repayment to the defendant of progress payments made on account of the performance by or on behalf of the plaintiff of the contract works or, alternatively, a refund of the payments made in respect of the plaintiff’s performance of the “building work” portion of the works. 175. By reason of the said breach the plaintiff has suffered loss and damage. PARTICULARS (a) The plaintiff refers to and repeats the particulars referred to in paragraphs 10, 17, 19, 23, 31, 35, 43, 47, 55, 59, 66, 74, 78, 84, 95, 100, 108, 113, 120, 126, 134, 140, 147, 153, 162, 166, 171 and 172 herein. 23 -- 23 of 34 -- (b) The amount of any sum that this Honourable court may order the plaintiff to repay to the defendant as “monetary or other consideration” paid by the defendant to the plaintiff for the carrying out of “building work” as defined by the QBSA Act. Some Common Considerations [86] The paragraphs of the Statement of Claim which plead breach of contract, negligence, Trade Practices Act and unjust enrichment follow the same basic approach with variations reflecting the different components of the various causes of action. In each case, the damages are pleaded and calculated in the same way irrespective of the cause of action. [87] In addition to those claims the plaintiff sues in the alternative for money due under the contract, damages for breach of contract and restitution. It is, to say the least, improbable that the amount claimed under these various categories as money due and owing or drawings should be measured and calculated on the same basis. [88] At this stage, a number of points can be made which apply to varying degrees to each of the set of claims under consideration. [89] The action is pleaded on the basis that the plaintiff entered into a binding contract. At the risk of repetition it is not pleaded that the contract is void or invalid or that there is any basis for setting it aside. Once it entered the contract the plaintiff was therefore bound to perform it. Upon finding out the licensing requirements it might have given consideration to rescind the contract although as I have said the action is pleaded on the basis that the contract remained in force. [90] The plaintiff had the option of obtaining the necessary licences which no doubt involved a cost or of accepting the limitations on recovery imposed by s42(4) of the Building Services Act. [91] Alternatively, the plaintiff could have repudiated the contract and defended any claim by the defendant on the basis that its repudiation was justified. That is not, however, a matter which arises for consideration here. [92] There is no allegation that the plaintiff relied on the defendant to inform it of any licensing requirements. It is not pleaded that the defendant said or did anything inducing the plaintiff not to inquire as to its statutory or contractual obligations as to licences. Nor is it pleaded that the plaintiff relied on anything the defendant said or did so as to relieve it of its contractual obligation to obtain any necessary licenses. [93] The plaintiff, in accepting the invitation to tender and on entering into the contract, held itself out as a suitable subcontractor. It might also be thought to have been an 24 -- 24 of 34 -- exercise of common sense for the plaintiff to inquire as to and fulfil any licensing requirements. Breach of Contract [94] The subcontract expressly addressed the necessity of the plaintiff to comply with any statutory licensing requirement (subcontract cl 16 of Exhibit D). Nothing is pleaded to justify the implication of the implied term as a matter of business necessity in the face of such an explicit provision. [95] The pleading is deficient in that it fails to plead the basis for a conclusion that there was a causal link between the breach of the alleged implied term and the loss and damage claim which is claimed. [96] The particulars pleaded under paragraph 174(c), they are repeated in respect of the pleadings under the other heads, fail to plead a connection between factual basis for a connection between the sub paragraph and the issues arising under the subcontract. [97] Paragraph 174 (v)(ee) is no more than an assertion unsupported by any facts. It makes no attempt to address that the plaintiff could have avoided the situation in which it now finds itself by carrying out the work for which it now sues in compliance with the Act i.e. by being licensed. I will return to the implication of these aspects in dealing with paragraph 8 of the Application. [98] Put shortly, the pleading of this claim does not plead or particularise the basis of the claim, see paragraph [35] and following. No facts justifying the implication of the term are pleaded. Negligence [99] Paragraph 176 of the Statement of Claim alleges a duty of care: (a) to exercise all due care and proper care in its dealings with the plaintiff in relation to the execution of “the subcontract”. It is essentially meaningless. The remaining subparagraphs (b) to (e) reiterate the allegations centring on the Building Services Act pleaded in support of the breach of contract claim. Particulars are provided after para 176. [100] These particulars allege that the duty of care arose from “the proximity that existed between the plaintiff and the defendant arises from” the fact of the plaintiff’s knowledge of the Building Services Act and its consequences 25 -- 25 of 34 -- [101] There is an allegation that the plaintiff entered into the subcontract in the “expectation that it was acting lawful” and that the defendant was aware or ought reasonably to have been aware that the pleading would not have entered into the agreement if it knew it was unlawful. No facts or circumstances are alleged to sustain the allegation here or elsewhere that the defendant was aware or ought to have reasonably been aware of what the plaintiff would do. [102] Even if the defendant was aware that the plaintiff was entering into the agreement “with the expectation it was acting lawfully” it does not follow, without more, that the defendant was under the duty of care for which the plaintiff contends. For example, presumably most contracts of the kind in issue here are entered into with that expectation that it is lawful to do so. [103] Paragraph 177(a) of the Statement of Claim alleges that: …in breach of the duty of care pleaded by paragraph 176 “the plaintiff” failed to exercise all due and proper care in its dealings with the plaintiff in relation to the execution of the subcontract. Paragraph 178 then says that by reason of the breach the plaintiff suffered loss and damages, I have already commented on that. 26 -- 26 of 34 -- [104] No facts are pleaded in support of the assertions made in those paragraphs which are themselves founded in assertions such as are found in para (viii). [105] The defendant sought further particulars of these allegations as it did for comparable allegations in support of the other heads of claim with a view to clarifying the basis of the claims. The plaintiff has declined to supply them; see the defendant’s letter of 18 March 2002 and the plaintiff’s reply of 17 April 2002. Trade Practices Act – Misleading, Deceptive and Unconscionable Conduct [106] The first two claims alleging misleading and deceptive conduct appear to be an elaborate plea that the defendant engaged in deceptive and misleading conduct by representing it would pay the full price for work under the subcontract while it knew, but concealed its knowledge that the Building Services Act limited recovery for unlicensed work. [107] Paragraph 179 of the Statement of Claim alleges that the defendant was acting unlawfully by failing to inquire of or advise the plaintiff of the licensing requirements of the Building Services Act and was aware that the plaintiff was entering into the agreement with the expectation it was acting unlawfully. [108] There is no apparent relation between the allegation in para 179 and the remainder of the allegations under this head. Nothing, for example, appears to be pleaded as occurring as a consequence of what is alleged in paragraph 179. [109] Paragraphs 180, 184 and 188 of the Statement of Claim seek to establish misleading and deceptive conduct at the stage of invitation to tender, acceptance of tender and/or presenting the subcontract for execution. The plaintiff’s case under this head includes that it would not had entered into the contract if the defendant had warned it of the Building Services Act and implications of carrying out unlicensed work. [110] Paragraph 193 alleges that by reason of the breaches of the Trade Practices Act the plaintiff has suffered damage particularised in the same way as for the other claims. It is highly improbable that damages as a consequence of not entering into the contract would be the same as damages as a consequence of the plaintiff having entered into the contract, acquired contractual obligations and entitlements for payment and then being limited by the Building Services Act as to what amount could be recovered. [111] Section 51AA provides to the effect that a corporation must not engage in “unconscionable conduct within the meaning of the unwritten law from time to time of the states or territories”. 27 -- 27 of 34 -- [112] Paragraph 192 of the Statement of Claim alleges unconscionable conduct by not informing the plaintiff of the Building Services Act and its implications so breaching the section. [113] Unconscionable conduct connotes “serious misconduct” or something “clearly unfair or unreasonable”; Hurley v McDonald’s Australia Ltd27. Nothing is pleaded in this case to justify such a characterisation. [114] There are no facts pleaded, for example, to support a conclusion that the plaintiff was in a position of disadvantage vis-a-vis the defendant. It is not alleged that the defendant exerted undue influence; Louth v Diprose28, Commercial Bank of Australia Ltd v Amadio29. [115] Paragraph 193 is a plea of damages in the same terms as the damages pleas under the other headings. It alleges that, by reason of the defendant’s breaches of s52 and 51AA of the Act, the plaintiff suffered loss and damage. Once again, no material facts are pleaded to link the alleged misleading and deceptive conduct and the loss and damages claimed. [116] If, for example, the plaintiff’s case in respect of this and the other claims for damages is that it would not have entered into the subcontract had it known of the Building Services Act position its damages would not be in terms of a claim for work done under it either in terms of s42(4) or generally. Unjust Enrichment [117] Paragraph 194 of the Statement of Claim alleges that the defendant benefited from the works undertaken by the plaintiff under the subcontract, and that the defendant accepted the benefit of the work but has failed to pay for it. [118] Paragraph 195 then alleges that in those premises the defendant is unjustly enriched to the extent that it has not paid the plaintiff the money it claims calculated on the same basis as under the other heads. [119] No facts are pleaded founding a causal connection between the two paragraphs which would justify a finding of unjust enrichment. [120] That is in circumstances that if the work was done under the subcontract that provides a basis for recovery. The contract provides the basis of payment for work. 27 [1999] FCA 1728 at [22] 28 (1992) 175 CLR 621 29 (1983) 151 CLR 447 28 -- 28 of 34 -- [121] If the work was not done under the contract some other basis must be identified and pleaded. It is not, for example, pleaded that the contract is void or invalid or that the defendant took improper advantage of the defendant or that that was an agreement which did not specifically provide for payment. [122] If work was done for which a licence was required the Building Services Act provided a basis for recovery. Application – Paragraph 8 the Defendant’s State of Mind [123] Paragraph 8 seeks to strike out paragraphs 176(c)(e), 177(c)(e), 179(b)(d)(iii), 182(b), 186(b)(c), 190(b)(c), 192(b)(d)(ii)(iii) pursuant to r 171 of the UCPR on the grounds that they are vexatious and scandalous. [124] These paragraphs of the Statement of Claim are pleaded to advance the plaintiff’s claim under the breach of contract negligence, Trade Practices Act and unjust enrichment claim. They, in effect, plead that the defendant held a belief as to the requirements of the Building Services Act or speak as to the defendant’s awareness of the plaintiff’s state of mind. [125] For example, paragraph 176(c) asserts the defendant’s belief that work under the subcontract was building work in terms of the Act. The particulars following paragraph 176(e) in, for example (iv) and (x) plead that the defendant “was aware or ought reasonably have been aware” of the plaintiff’s “understanding, alternatively expectation” on entering into the subcontract that it did so lawfully and that it expected to be paid in accordance with the contract. [126] The plaintiff responded to a request for particulars in respect of these matters by contending the pleading was sufficient and what was sought was evidence not a matter of particularity. [127] The response seems to me to miss the point. Rules 150(1)(k) and 157(b) of the UCPR provide that a condition of mind, including knowledge or notice, is to be specifically pleaded and supported by particulars. This has consistently not been done. The defendant is entitled to particulars of the facts to be proved to sustain the assertions as to its knowledge pleaded in the Statement of Claim. Application – Paragraphs 2, 3 and 4 – Strike Out or Particulars [128] Paragraphs 2 and 3 of the Application seek that specific paragraphs of the Statement of Claim are either struck out under r 171of the UCPR on the ground that they have a tendency to prejudice or delay a fair trial of the proceeding or that the particulars sought by a request of 5 June 2001 should be supplied. [129] Paragraphs 2 and 3 of the Application are as follows: 29 -- 29 of 34 -- 2. That paragraphs 6, 14, 26, 38, 40, 50, 52, 62, 68, 69, 80, 86, 88, 103, 104, 109, 114, 115, 116, 118, 120, 129, 130, 131, 132, 142, 143, 144, 158 and 167 of the Further Amended Statement of Claim be struck out pursuant to Rule 171 UCPR on the grounds that they have a tendency to prejudice or delay the fair trial of the proceeding. 3. In the alternative, that the Plaintiff deliver further and better particulars of paragraphs 6, 14, 26, 38, 40, 50, 52, 62, 68, 69, 80, 86, 88,103, 104, 109, 114, 115, 116, 118, 120, 129, 130, 131, 132, 142, 143, 144, 158 and 167 of the Further Amended Statement of Claim in accordance with the Request dated 5 June 2001 within 14 days. [130] I dealt with the relevant subcontract terms and the elements of pleading a claim of payment for work under the subcontract in paragraphs [28] to [41] of these reasons. What follows should be read in conjunction with what is said there. [131] Paragraph 5 of the Statement of Claim alleges to the effect that it was a term of the subcontract that the plaintiff would undertake works identified in paragraph 5 in terms of category and rates for work in the particular category. [132] Paragraph 6 then alleges that the plaintiff undertook the works identified in paragraph 4 in accordance with the subcontract “in the following quantities”. Total quantities are then given in terms of the categories. The plaintiff, having pleaded part payment, goes on to allege that the defendant has failed to pay the balance and sues to recover it. [133] This would appear to be a simple claim under the contract with the plaintiff entitled to be paid in terms of cl 3.1(b) of Exhibit D to the subcontract (see [28]) which involves ascertainment by measurement and determination of quantity in accordance with cl 3.2 and multiplying the quantity arrived at by the accepted rate adjusted, if necessary, by any additions or deductions pursuant to the contract. [134] Exhibit C cl 2 [29] deals with measurement for payment. It refers, for example, to measurement to the profiles shown in contract Drawings and as to how allowance is to be made for wastage. [135] The defendant is entitled to have the claim pleaded in accordance with the contractual terms set out between [28] to [30] and the considerations canvassed in paragraph’s [28] – [41] provision. The plaintiff must plead facts and identify documents establishing the measurement of quantities is in accord with the contractual provisions. They involve, for example, identifying “the Drawings” in terms of cl 2. [136] The plaintiff has identified drawings used to compile its claim. This does not satisfy an obligation to plead and particularise a claim in terms of the contractual terms founding the claim. 30 -- 30 of 34 -- [137] The next paragraph of the Statement of Claim, the subject of an application under paragraph 2 of the Application, is paragraph 14. It is necessary to put this paragraph in context. The sequence in which paragraph 14 has its place starts with paragraph 11 of the Statement of Claim. [138] Paragraph 11 of the Statement of Claim pleads a variation in accordance with cl 45.1 of Exhibit D to the subcontract. It is then pleaded that the plaintiff proposed specified rates in compliance with cl 45.2 of subcontract. [139] Clause 45 of Exhibit D of the subcontract deals with variations. It provided that unless the price is agreed the price of the variations valued under cl 45.5. This speaks of “the amount ascertained by Stork’s Representative” being payable. It provides for the purposes of the ascertainment: a) if the Subcontract prescribes specific rates or prices to be applied in determining the value, those rates or prices shall be used b) if clause 45.5(a) does not apply, the rates or prices in a Priced Bill of quantities or Schedule of Rates shall e used to the extent that it is reasonable to use them; c) to the extent that neither clause 45.5(a) or 45.5(b) apply, reasonable rates or prices shall be used in any valuation made by Stork’s Representative; [140] Paragraph 13 of the Statement of Claim pleads that in accordance with cl 45.2 the plaintiff proposed the rates set out and used to calculate the claim. It is not pleaded that the rates were accepted, whether they were prescribed in terms of cl 45.5(a) or that it was reasonable to use them in terms of (b) or that they were reasonable in terms of (c). [141] There is no plea of what the defendant’s representative did or did not do. [142] Paragraph 14 then pleads that between specified dates the plaintiff completed road reconstruction works in terms of the quantities set out in the paragraph against specific categories of work. [143] Paragraph 15 alleges that the total value of the work calculated in accordance with the rate in paragraph 13 and the quantities in paragraph 14 is the “total value of the road reconstruction work” and that is the amount payable under the contract. After bringing a part payment into account paragraph 17 pleads the defendant has failed to pay the balance of the “total value of the road works” in breach of the road reconstruction variation (paragraph 17) or in breach of cl 45.5(c) of Exhibit D to the subcontract. 31 -- 31 of 34 -- [144] The contractual conditions of payment are not pleaded. If the claim is not in terms of the clause, e.g. that the plaintiff’s representative did carry out his obligations as to payment that should be specifically pleaded. [145] The balance of the claims the subject of paragraphs 2 and 3 of the application are for variations (paragraphs 26, 38, 40, 50 and 62). Others are for additional work carried out by “direction” (for example paragraph 102) or “request (for example, paragraph 86) or as a consequence the issue of “for construction drawings” (e.g. paragraphs 114-118). [146] As to the latter the sequence pleaded by paragraphs 114 – 118 it is pleaded: 116A The rates included in the suspended slab rate estimate are reasonable rates. The total value of the suspended slab quantities is $435,361, $11,648.92 ($20.746 (“the suspended slab quantities value”) 117A The total value of the suspended slab quantities is a reasonable value for the works completed pursuant to the suspended slab direction. 118 In breach of clause 45.3 and 45.5 of the construction agreement, Stork has refused to pay a reasonable rate for the suspended slab quantities.” [147] Clause 45.5 provides for payment in terms of ascertainment of value by the defendant’s representative acting in accordance with the clause or of a “reasonable value”. Subclause 5(b) applies contract rates to the extent to which it is reasonable and (c) refers to “reasonable rates”. Paragraphs 116A, 117A and 118 are not referable to those terms. [148] In summary, the paragraphs the subject of paras 2 and 3 of the Application do not plead or particularise claims in terms of the contract or provide a basis for claims outside it. [149] Application paragraph 4 - Striking Out of Restitution Claims (Paragraph 4 of Application) [150] Paragraph 4 of the Application seeks that specified paragraphs of the Statement of Claim be struck out pursuant to r 171 of the UCPR as disclosing no cause of action, having a tendency to prejudice or delay the trial of the action and being vexatious. [151] The paragraphs of the Statement of Claim can be grouped as follows:- (20, 21, 22, 23), (32, 33, 34, 35), (44, 45, 46, 47), (56, 57, 58, 59), (75, 76, 77,78), (95A, 95B, 95C, 95D, 95E, 95F, 95G), (96, 97, 98, 99, 100), (109, 110, 111, 112, 113), (121, 122, 123, 124, 125, 126) 127-131A, (135, 136, 137, 138, 139, 140), (148, 149, 150, 151, 152, 153) and 154. 32 -- 32 of 34 -- [152] The issues which arise for consideration on this paragraph of the Application are illustrated by looking at paragraphs 20, 21, 22 and 23. These paragraphs are pleaded in the alternative to the claims advanced by paragraph 11 to 19 of the Statement of Claim. [153] Paragraphs 11 to 19 plead a claim based on a variation in terms of the contract. Paragraphs 20 to 23 appear designed to plead an alternative to a contractual claim for payment for that work. They plead a request to do the work, that the work was done and accepted. It is then pleaded that “a reasonable charge” for the work is $6698 and it has not been paid. [154] There was a valid and enforceable contract in force between the plaintiff and the defendant. The Building Services Act make provision for recovery for unlicensed work. [155] The claim as pleaded, however, has the appearance of a claim for restitution independently of the contract; the pleading is not in terms of s42(5) of the Building Services Act. [156] In the course of argument, however, it was said (T111) that paragraphs 22 and 23 pleaded “apparently pursuant to the” subcontract and that the claim might allow for recovery for unlicensed work, apparently in place of a claim under s 42(5) and should be left. No basis has been pleaded for the claim. [157] This is not a case where work was done in circumstances, for example, where there was no agreement between the parties and it would be unconscionable to allow the defendant to benefit from the work. Nor is it a situation where a contract was implied from a request to do work on the basis that it would be paid for but there was no agreement as to price or the basis of calculation of the price. [158] There is no basis for the claim; c.f. Adamson v Williams30, Pavey & Mathews Pty Ltd v Paul31, Goldtaper Pty Ltd v Berela Pty Ltd32. Summary of Outcomes [159] Application Paragraph 1; I am not prepared to grant summary judgment in respect of the asphalt, pedestal summary and prill storage building claims. As to the first two it is fairly arguable that they did not come within the Building Services Act so as to acquire a licence under the Act for the work the subject of the claim. [160] As to the third the probability is that it included building work for which a licence was required but there are fairly arguable issues as to what components of the 30 McMurdo P Thomas JA Mullins J (unreported) [2001] QCA 38 16/02/2001 (00/9510) 31 (1986) 162 CLR 221 32 White J (unreported) [2000] QSC 187 003/02/2000 33 -- 33 of 34 -- subcontract work was building work and what was not. In that context severance issues may arise. [161] Application Paragraphs 2 and 3; the paragraphs of the Statement of Claim the subject of this application are not properly pleaded or particularised and should be struck out. [162] Application paragraph 4; the paragraphs the subject of this application do not disclose a reasonable cause of action, tend to prejudice or delay the fair trial of the proceedings and are vexatious. They should be struck out. [163] Application paragraphs 6, 7, 9, 10, 11, 12, 13 and 14; the pleadings identified by those paragraphs disclose no reasonable cause of action and are prejudicial to the fair trial of the action and should be struck out. [164] The causes of action as presently pleaded have no prospect of success. [165] Application Paragraph 8; as they presently stand the paragraphs the subject of this claim are not properly pleaded or particularised and should be struck out. [166] The combined effect of the deficiencies in the Statement of Claim canvassed by these reasons have the consequence that it should be struck out. I do not consider that the deficiencies can be satisfactorily dealt with by further rounds of amendments and particulars. 34 -- 34 of 34 --