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cdr insight - article 2 (dec 06)

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					              commercial dispute resolution insight
                       december 2006
ensuring a pleading is not embarrassing
The statement of claim is not merely a mechanism by          The plaintiff’s claim for damages against the
which a plaintiff commences proceedings against a            defendants, assessed most of its damages on the
defendant. The statement of claim, if drafted                grounds that the development would need to be
correctly, will ensure that the plaintiff is in a position   completely demolished and rebuilt.
to progress claims quickly and avoid unwanted and            Of particular importance, was the fact that the land
often time consuming interlocutory applications.             the subject of the claim was a layered community title
This is evident from rule 157(a) of the Uniform Civil        scheme in which the plaintiff, at the time of
Procedure Rules (“the Rules”), which requires parties        commencing proceedings, only owned a small
to include in a pleading, all particulars necessary to       number of lots. The plaintiff’s statement of claim
define the issues for, and prevent surprise at, the          however contained no pleading as to why, or how the
trial.                                                       demolition and reconstruction of the development
                                                             could be achieved.
Where this is not done, the pleading will often be the
subject of a strikeout application pursuant to rule 171      The Supreme Court ordered the plaintiff to file and
(1)(b) of the Rules which allows a party to apply to         serve an amended statement of claim which set out
                                                             the facts and circumstances from which it was likely
strikeout a pleading which has a tendency to
                                                             that all owners of a lot within the community title
prejudice or delay the fair trial of the proceeding.
                                                             scheme would agree to the demolition and rebuilding
UI International Pty Ltd v Interworks Architect Pty          of the development or, from which it was likely that
Ltd & Ors [2006] QCA 434 (“UI International”)                the Court would make orders pursuant to the “Body
                                                             Corporate and Community Management Act 1997
These 2 rules were recently considered by the
                                                             enabling the plaintiff to affect the demolition and
Queensland Court of Appeal in UI International,
                                                             rebuilding.”
where the Queensland Court of Appeal upheld a
decision of the Queensland Supreme Court requiring           The plaintiff appealed against this order.
the plaintiff to re-plead part of its statement of claim     On appeal, the plaintiff contended that the facts
on the grounds that it was, in its current form,             which would show how it could, and would obtain the
embarrassing.                                                agreement of lot owners or the relevant order to
The plaintiff developed land at Cleveland through the        enable demolition, were not a necessary part of the
construction of buildings for residential, retail and        plaintiff’s cause of action against the defendants.
office purposes, and engaged the first, second and           The Court of Appeal however agreed with the
third defendants to provide services in connection           Supreme Court and noted that the plaintiff’s
with the development. The plaintiff claimed in its           amended Statement of claim, as it currently stood,
Supreme Court proceedings that the development               advanced a hypothetical or fictional claim for
was adversely affected by structural defects and that        demolition and reconstruction, and, on its own
this was caused by the negligence and/or breach of           pleading, did not indicate that it was in a position to
contract of the defendants.                                  demolish and rebuild the development.
Accordingly, the Court of Appeal concluded that as it       For further information, please contact:
currently stood, the plaintiff’s statement of claim was
incoherent and self contradictory.                          brisbane
The Court of Appeal noted that in the absence of a          Troy Lewis
pleading of facts to explain how such demolition and        Senior Associate
rebuilding was to be achieved, the plaintiff’s Claim        t: +61 (0)7 3854 3614
was embarrassing.                                           e: troy.lewis@holdingredlich.com.au

conclusion                                                  melbourne
The decision in UI International sends a clear              Howard Rapke
message to both lawyers and their clients alike, that       Partner
when drafting a Statement of claim, it is important to      t: +61 (0)3 9321 9742
ensure that all the elements necessary to establish         e: howard.rapke@holdingredlich.com.au
the plaintiff’s case are pleaded in appropriate detail in
the Statement of claim.                                     sydney
To do otherwise may be seen as an attempt to                Harold Werksman
circumvent the rules and ambush the defendant, or           Partner
worse, be the subject of a successful strikeout             t: +61 (0)2 9234 4405
application.                                                e: harold.werksman@holdingredlich.com.au

				
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Description: cdr insight - article 2 (dec 06)