Category:
Created:
Updated:
Plaintiff Opposes Strikeout Application Filed by Defendant
Defendant seeks Orders for certain paragraphs of the statement of claim 'SOC' to be struck out. However, the Uniting Church contends the Court should refuse to exercise its discretion to strike out the relevant paragraphs of the SOC. The Court, in resolving this dispute, assessed whether the plaintiff was able to show a sound basis to support proposed claims.
Facts:
The proceeding concerns damage that has developed to a building known as the New Ministry Centre, at 225 Derrimut Road, Hoppers Crossing (‘Building’) following its construction for the plaintiff, the Uniting Church in Australia Property Trust (Victoria) (‘Uniting Church’).
The third defendant (‘Grant’) seeks orders that paragraphs 4, 12-17 and 36-43 of the SOC dated 14 October 2021, and paragraph B of the prayer for relief, be struck out. The first defendant, Ian Hartley Architects Pty Ltd (‘Hartley’), is a provider of architectural and project management services. Hartley were the architects involved in the project to construct the Building. The second defendant, E J Lyons & Sons Pty Ltd (‘Lyons’) is a builder.
The claim against Grant has two bases. The first is a claim in negligence for pure economic loss. The second is for misleading and deceptive conduct alleged to be in contravention of the Fair Trading Act 1999 (Vic) (‘FTA’). Grant submits that the SOC is deficient for failure to properly plead a duty of care to avoid pure economic loss said to be owed by him to the Uniting Church, for failure to properly plead reliance, for failure to plead a counterfactual and for its failure to plead facts sufficient to establish causation. Grant submits that as the representations of which the Uniting Church complains were contained within documents written by him in his capacity as an employee, any liability for contravention of the FTA could only be based on accessorial liability.
He submits that he could not be found directly liable for breach of the FTA because it is separately alleged to be defective pleadings in the meaning of the documents conveyed and, in the case of representations as to matters of opinion, for the failure to plead an absence of reasonable grounds for making the representations.
The Uniting Church disputes the assertion that the pleading is deficient. It submits that the material facts necessary to establish the causes of action against Grant are pleaded and are supported by particulars sufficient to put Grant on notice of the case he needs to meet. I t submits that Grant’s objections are technical in nature and that they do not advance the overarching purpose of the CPA.
Issue:
Whether or not the Court should refuse to exercise its discretion to strike out the relevant paragraphs of the SOC.
Applicable law:
Civil Procedure Act 2010 (Vic), s 18 - provides that a person to whom the overarching obligations apply must not make any claim or make a response to any claim in a civil proceeding that—
(a) is frivolous; or
(b) is vexatious; or
(c) is an abuse of process; or
(d) does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis.
Fair Trading Act 1999 (Vic) s 159(1) - provides that a person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.10(3) - requires that every pleading shall contain particulars of any condition of the mind, including knowledge, which is alleged.
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02 - provides the grounds on which the sufficiency of a pleading may be impugned.
Wheelahan v City of Casey (No 12) [2013] VSC 316 - provides that the Court should consider the pleading under a challenge as a whole and adopt a practical case management approach to pleading objections, rather than accepting technical objections when the true nature of the case to be met is clear from reading the pleading as a whole and there is no embarrassment to filing a responsive pleading.
Sidgreaves v State of NSW (No 2) [2021] NSWSC 934 - provides that it is necessary for there to be proper pleading of material facts concerning assumption of responsibility and, for that matter, known reliance on the defendant by the plaintiffs with the concept of vulnerability.
Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited [2012] FCAFC 31; (2012) 202 FCR 158 - dismissed an appeal against the imposition of the personal duty alleged.
Barclay v Penberthy (2012) 246 CLR 258 - where one of the questions for the High Court was whether the pilot, Mr Penberthy, who crashed a specialist commercial charter plane (killing the plaintiff, Nautronix (Holdings) Pty Ltd’s key employees and injuring others) owed a duty to Nautronix to avoid economic loss sustained by Nautronix when its employees were killed or injured.
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 - where the defendant’s knowledge of the risk associated with its activities and of the consequences for an individual, or a class of persons, was identified as being of importance to the question of whether a duty of care could be said to arise.
Brookfield Multiplex v Owners Corporation Strata Plan No 61288 [2014] HCA 36; (2014) 254 CLR 185 - provides that the alleged existence of a duty of care was denied, substantially because the plaintiff was not vulnerable.
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 - stated that a lack of vulnerability was ‘often a decisive – reason for rejecting the existence of a duty of care in tort’ in pure economic loss cases.
ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1 - held that the speaker must realise, or the circumstances must be such that the speaker ought to have realised, that the recipient of the information or advice intends to act on that information or advice in connexion with some matter of business or serious consequence.
Ku-ring-gai Council v Chan (No 2) [2018] NSWCA 73 - where an assessment of the merits of that claim depended in part on the presence or absence of salient features which in earlier cases have assisted in determining whether such a duty should be imposed.
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 - Allsop P, with whom Simpson J agreed, extracted from the authorities a non-exhaustive list of salient features relevant to the evaluative task of imputation of a novel duty.
Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 - relied upon in submitting that a direct claim against Grant for breaches of the FTA was permissible.
Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 - provides that the person sought to be made liable must be shown to have had knowledge of the essential matters which go to make up the contravention.
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 - where the alleged accessory, an employee of a corporate respondent, was held not to be liable because although he was aware of the representations made.
Analysis:
In this case there was no contract between the employer of the individual, Kersulting, and the plaintiff, the Uniting Church, to whom the duty alleged is said to have been owed. The Uniting Church was not named as an intended recipient of the advices. Although a civil and structural engineer, Grant signed the advices as an employee only of Kersulting and not in any personal professional capacity. There is nothing in the pleading itself, including the particulars, or in the documents referred to in the pleading and relied on during the hearing, to support the assertion in the particulars that Grant either knew or ought reasonably to have known that the owner of the Building might read or rely on either of the advices of which he was the author on behalf of his employer.
The deficiencies in the pleading were drawn to the attention of the Uniting Church prior to the hearing. No affidavit evidence was relied on by the Uniting Church to seek to demonstrate that a proper basis exists to amend the pleading in a manner that would enable either of the causes of action alleged to be properly pleaded. The flaws in the pleaded claims are such that it is not appropriate to grant the Uniting Church leave to re-plead and it would be contrary to the provisions of the CPA to permit it to do so.
Conclusion:
The Court ordered that the claims against Grant both for pure economic loss in negligence and relying upon the FTA will be struck out.
0
0
0
0
0
0
0
