SUPREME COURT OF QUEENSLAND

Recommendations

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10 [36] It is a mistake to focus on paragraphs 20 and 21 of the statement of claim, without having regard to the allegation in paragraph 22. It is worth observing that paragraphs 20 and 21 appear to be out of order with paragraph 22. [37] It is paragraph 22 in which the allegation is made that in order to rectify the breaches referred to in paragraphs 14 and 15 (or 14 and 16) it is necessary to remove the work performed by the defendant that did not comply with the contract and re-perform the work in accordance with the contract which is described as the cost of rectification. Two alternative methods of rectification are then pleaded in paragraph 22(b). Paragraph 20 (and therefore paragraph 21) logically follow with the claim for that cost of rectification as the loss and damage for the breaches of the contract. The qualification of the reasonableness of the proposed rectification as an issue has then been raised in paragraph 22(e) of the defence, as contemplated by Willshee at [72]. [38] The defendant’s complaint that the plaintiffs should plead a causal nexus between each alleged breach of contract with a particular item of loss or damage is unfounded, when the plaintiffs are seeking to recover the cost of the work that is necessary to remedy all the non-compliances with the contract, so that the first plaintiff is in the position, as if the contract had been performed as promised. [39] The defendant’s complaints about paragraphs 19 to 23 of the statement of claim are misconceived in light of the plaintiffs’ reliance on the application of the ruling principle to the assessment for damages for breach of contract. All material facts to support the claim have been pleaded. The application to strike out paragraphs 19 to 23 of the statement of claim cannot succeed. Request for particulars [40] In respect of paragraphs 19(d), the defendant seeks full particulars of the “work performed under the Contract” which is said not to comply with the contract. That request takes paragraph 19(d) out of context. It is the conclusion to the pleading of the other matters in paragraphs 19(a), (b) and (c). Paragraph 19 has otherwise been previously particularised in an adequate manner. [41] The request for further particulars of paragraphs 20 and 21 of the statement of claim in respect of the loss and damage alleged to have been caused by each of the defendant’s alleged breaches of contract is misconceived in light of the reliance by the plaintiffs on the application of the ruling principle. For the same reason the defendant’s request in respect of the facts, matters, circumstances and things relied on by the plaintiffs in support of the allegation that the alleged necessity to rectify was caused by the alleged breaches is also misconceived. The balance of the particulars that are sought in respect of paragraph 22 of the statement of claim is in respect of matters that have already been sufficiently pleaded and particularised by reference to the breaches referred to in paragraphs 14 and 15 (or 14 and 16) of the statement of claim. The request for particulars appears to have been drafted, without considering the content and context of the other relevant paragraphs in the statement of claim.
11 [42] The alternative claim in the application for an order for further and better particulars must also fail. Orders [43] It follows that the defendant’s application filed on 18 December 2015 must be dismissed. [44] Subject to hearing submissions from the parties, I consider that costs should follow the event.
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Page 3 and 4: 3 demonstrate the compliance of the
Page 5 and 6: 5 [13] The defendant’s main compl
Page 7 and 8: 7 ‘The rule of the common law is,
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SUPREME COURT OF QUEENSLAND

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