Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51

Julie Whitehead   |  James Knell  |  Zariyah Ahmed

Key takeout

In Queensland, each allegation within a plaintiff’s pleading should be set out in individual, clear and distinct paragraphs to aid the defendant(s) to deliver responsive pleadings and also to allow both the defendant(s) and the court to be fairly appraised of the issues in dispute.

It is up to a plaintiff to be aware of the requirements in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) regarding pleadings.  A deficient pleading (for example one that is ambiguous, vague or too general) may be struck out if the defendant(s) does not know the case that is made against them or if the pleading has a tendency to prejudice or delay the fair trial of the proceeding.

Facts

Devine Constructions Pty Ltd (Devine) commenced litigation against five defendants in relation to the construction of high-rise unit developments.  Devine pleaded various breaches of contract and negligence against the defendants and an obligation on the part of some of the defendants to remedy defects.

The second defendant, Profire Systems Pty Ltd (Profire), was engaged as a subcontractor to carry out works involving the design, supply, testing and commissioning of fire services in the high-rise unit developments.

Profire brought an application to strike-out Devine’s pleading, arguing that it did not allow Profire to identify the basis upon which Devine asserted its entitlement to relief against Profire and that the pleading had a tendency to prejudice or delay the fair trial of the proceeding.  Profire’s strike-out application also alleged that the particulars in the pleading were insufficient as they did not allow Profire to identify the locations of the alleged defects, whether the alleged defects fell within Profire’s scope of works or whether they were the result of Profire failing to comply with its obligations under the subcontract.

Devine argued that the pleading provided abundant detail of the alleged defects, for which Profire was responsible (set out in hundreds of pages of schedules attached to the pleading), and that it identified all the ways in which Profire breached its contract. Specifically, paragraphs 97 and 126 of the pleading specified breaches of 21 separate obligations under the subcontract. In response, Profire submitted that although numerous breaches were pleaded in paragraphs 97 and 126, the paragraph failed to plead how, or provide adequate particulars to support the allegations that it had breached the specific terms of the subcontract.

Decision

Applegarth J concluded that paragraphs 97 and 126 of the pleading did not provide a satisfactory framework for the conduct of the proceedings. He ordered that the pleadings be struck out on the basis that they compressed and confused important allegations of breach and the consequences of that breach.  

Specifically, His Honour considered that paragraph 97 compressed three topics:

1. Profire’s conduct, being the acts or omissions, by which it allegedly breached its contractual obligations;
2. specific consequences of the breach, namely the defects particularised in the schedules to the pleading; and
3. general consequences of the breach, being a failure to comply with the Building Code of Australia and relevant Australian Standards.

Applegarth J was of the view that these topics should be the subject of separate and clearly distinct paragraphs. Separating these issues would allow Profire to:

• better know the case it has to meet;
• make appropriate admissions;
• join issue on facts that are in dispute; and
• provide adequate reasoning for denials or non-admissions.

The court noted that the rule 146(1)(f) of the UCPR required a pleading to be ‘divided into consecutively numbered paragraphs, and if necessary, subparagraphs, each containing, as far as practicable, a separate allegation‘, is not ‘hollow formalism’, but is used to aid responsive pleadings, the identification of issues that are in dispute and preparations for trial.

In relation to the lengthy particulars contained in the pleading, Applegarth J stated, in allowing Devine to replead, that he expected Devine to identify:

• the specific conduct alleged to constitute the breach by Profire;
• the contractual obligations alleged to have been breached;
• the defects or other consequences that have resulted from the breaches; and
• where possible, the dates on which the breaches were alleged to have occurred.