' " if JWOGMENT No. 504/21 CATCHWORDS PRACTICE AND PROCEDURE - pleadings - admission of facts not alleged - particulars and material facts - pleading to particulars - pleading to allegations against another party- 0.11 1.13 "opposite party" - fraud - by corporation - particulars of identity of natural persons involved - collusive tendering arrangement - particulars - separate trial as to quantum. Evidence Act 1906 (WA) s.79C Trade Practices Act 1974 s.82 H.1976 Nominees v Galli (1979) 40 FLR 242 Bond Corporation Pty Limited v Thiess Contractors Pty Ltd and Ove Arup Pty Ltd, Arup Partners Pty Ltd and Ove Arup Consult Pty Ltd No. WAG 114 of 1987 FRENCH J. 1 OCTOBER 1987 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 114 OF 1986 BETWEEN: BOND CORPORATION PTY LIMITED Applicant and THIESS CONTRACTORS PTY LTD First Respondent and OVE ARUP PTY LTD ARUP PARTNERS PTY LTD and OVE ARUP CONSULT PTY LTD Second Respondents MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 1 October 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: A. As to the Applicant's motion to strike out various parts of the First Respondent's defence and cross-claim:- The Defence 1(i) The words including and following the words "or at all" in paragraphs 12, 19, 31, 34 and 43 be struck out. 2. (11) Thiess have leave to amend paragraph 29 by substituting "the Tendered Works" for "the Contract Work", (iii) Sub-paragraph 30(b) and the words "and (b)" in sub-paragraph 30(c) be struck out. (iv) No order as to paragraph 38. (v) Paragraph 42 be struck out. (vi) No order as to paragraph 45. The Cross-Claim (vii) Paragraphs 11 to 16 be struck out. (viii) Paragraphs 20 to 22 be struck out. (1x)(a) Paragraphs 23 to 26 be struck out. (b) No order as to paragraphs 27 and 28. (x) The words "or alternatively Clause 23" be struck out of paragraph 41 but otherwise no order as to paragraphs 35 to 42. (x1) (x11) 3. Paragraphs 46 and 47 be struck out and the words "or alternatively Clause 23.1" appearing 1n paragraph 50 be struck out. Paragraphs 52 to 55 be struck out. Costs. As to the Applicant's motion to strike out various parts of the Second Respondents' 1(i)-(vii)Paragraphs 5, 7, (viii) (ix) (x) (xi) (xii) (xiii) (xiv) struck out. 9, defence:- 11, 12, 13 and 14 be Paragraph 18 be struck out. Paragraph 20 be struck out. No No No No order order order order in in in in All parts "denied" Costs. be relation relation relation relation to to to to paragraph 21. paragraph 22. paragraph 24. paragraph 25. of paragraph 27 after the word struck out. 4. As to the First Respondent's motion for particulars of the re-amended statement of claim:- l. The Applicant do on or before 15 October 1987 supply further and better particulars of the re-amended statement of claim as follows:- (a) (b) (c) Of sub-paragraphs (1), (2), (4), (5), (6) and (7) of paragraph 15 the particulars sought in the First Respondent's notice of motion; Of paragraph 22, for each matter which is alleged to have been untrue to the knowledge of Thiess:- (i) state who on the part of Thiess is alleged to have known the same; (ii) specify each fact relied upon by the Applicant as giving rise to such knowledge. Of paragraph 28, for each matter which is alleged to be untrue to the knowledge of Thiess:- (d) (e) (i) state who on the part of Thiess 1S alleged to have known the same; (11) specify each fact relied upon by the Applicant as giving rise to such knowledge. Of paragraph 28, particularise the facts relied upon by the Applicant as giving rise to the alleged state of mind whereby the First Respondent recklessly did not care whether the representations were true or false. Of paragraph 40, particulars as sought in paragraph 4 of the Motion. 2. The Applicant to pay the First Respondent's costs of the motion. As to the First Respondent's motion for a separate trial on the issue of quantum:-~ l. The motion is dismissed. 2. The First Respondent 1s to pay the Applicant's and the Second Respondents' costs of the motion 1n any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION wesw ww NO. WAG 114 OF 1986 BETWEEN: BOND CORPORATION PTY LIMITED Applicant and THIESS CONTRACTORS PTY LTD First Respondent and OVF ARUP PTY LTD ARUP PARTNERS PTY LTD and OVE ARUP CONSULT PTY LTD Second Respondents CORAM: FRENCH J. 1 October 1987 REASONS FOR JUDGMENT This dispute arises out of allegations of time and cost overruns and underpayments in connection with the provision of road and associated earthworks for a residential subdivision at Millendon near Perth. The general nature of the applicant/developer's claims against its construction and consulting engineers (the first and second respondents respectively) has been set out in earlier 2. interlocutory proceedings and 1t 1S not necessary to repeat that outline here. The matter has progressed to the point where the first and second respondents have filed defences and cross-claims to the applicant's re-amended statement of claim (called "the statement of claim"). The applicant now moves to strike out certain paragraphs of those pleadings. The first respondent seeks an order for the provision of particulars of the statement of claim and also moves for a separate trial on the question of the moneys and damages which are the subject of the claims and cross-claims. Bond's Motion in Relation to Thiess' Defence (i) Paragraphs 12, 19, 31, 34 and 43 Paragraph 18 of the statement of claim pleads damages suffered by Bond as a consequence of "the matters aforesaid". Those matters include representations by Thiess to Ove Arup in relation to its capabilities, knowledge and experience, the reliance by Bond on those representations and its consequent entry into an agreement with Thiess to carry out the road and earthworks. The representations are said to have been untrue (para. 15) and it is alleged that Thiess failed to complete the works on time. 3. Paragraph 12 of the Thiess defence responds to para.18 as follows:- "As to paragraph 18 of the Re-Amended Statement of Claim, Thiess denies that Bond has suffered loss and damage as alleged, or at_all, and further says that if any loss and damage has been suffered by Bond (which 1s denied) Thiess has no liability to Bond in respect of the same." (underlining added) Bond seeks to strike out the underlined words as disclosing no reasonable cause of defence or as being embarrassing. The true issue, it is said, 1S not whether Bond has suffered loss and damage at all, but whether it suffered loss and damage by reason of the matters alleged. The additional words raise a false issue and are embarrassing. There is said to be a further false issue raised by them, namely, whether Thiess 15 liable to Bond at all for anything anywhere in Australia. For myself I am not prepared to read the pleading isolated from its context as this construction requires. I do not consider that on this aspect any point of substance is made. As to the denial of any loss or damage, Thiess contends that by its pleading Bond has raised two issues namely:- 1. Whether it has suffered loss and damage; 2. Whether such loss and damage was as a "consequence of the matters aforesaid". 4. This analysis 1s, I think, faulty. Loss and damage suffered by Bond in connection with the works has no relevance to this case 1f not flowing from the "matters aforesaid". In that sense the defence does raise a false issue when it denies that Bond has suffered any loss or damage. In my opinion the words complained of are embarrassing for this reason and should be struck out. The same is true of those words where they appear in paras. 19, 31, 34 and 43 of the defence. (1i) Paragraph 29 of the Thiess Defence Paragraph 33 of the statement of claim pleads an implied term of the agreement between Bond and Thiess which is said to have 8 elements, including the exercise of due care, skill and diligence in carrying out the works. Paragraph 29 of the Thiess defence pleads:- "As to paragraph 33 of the Re-Amended Statement of Claim, save that Thiess admits that it was an implied term of its contract with Bond that Thiess would exercise due care, skill and diligence in the carrying out and completion of the Contract Work, Thiess denies each and every other fact and matter alleged therein." Bond points out that the term "the Contract Work" 1s not defined on the pleadings. This is conceded by Thiess which will 5. have leave to amend its defence to substitute the defined term "Tendered Works". (111) Sub-paragraphs 30(a), (b) and (c) of the Thiess Defence Paragraph 30 of the defence pleads to para.34 of the statement of claim which alleges breaches by Thiess of express and implied terms of 1ts agreement with Bond in some 11 respects designated (a) to (g). Further and better particulars of this paragraph were provided by Bond on 22 May 1987 in answer to a request from Thiess dated 7 April. Sub-paragraph 30(a) admits that Thiess did not complete the Tendered Works as varied by 10 October 1985. Sub-paragraph 34(c) of the statement of claim alleges a failure to "complete the Works as varied by 10 October 1985, the revised completion date fixed by Ove Arup". The term "Tendered Works" 1s defined in para.6 of the defence. Sub-paragraph 30(d) denies "each and every other fact and matter" alleged in para.34. Sub-paragraphs 30(a) and (d) together amount to a denial of the allegation made in sub-para.34(c) of the statement of claim coupled with an admission. True it 1s, that the admission 1s not of any matter alleged but in so far as it 1S capable of narrowing the area of dispute, I am of the opinion that it should stand. 6. Sub-paragraph 30(b) of the defence nleads to further and better particulars which were separately supplied and do not form part of the statement of claim. The plea 1S unnecessary and confusing. That 1S not to say that it may not be permissible in some cases to provide particulars in a defence which respond to Particulars in a statement of claim. The distinction must, however, be maintained between particulars and material facts pleaded. As Northrop J. said 1n H.1976 Nominees v Galli (1979) 40 FLR 242 at 246:- "Particulars are not statements of material facts; particulars perform a different purpose." Sub~paragraph 30(b) 1s embarrassing and should be struck out. In relation to sub-para.30(c) the words "and (b)" will be struck out consequentially. (iv) Paragraph 38 of the Thiess Defence Paragraph 42 of the re-amended statement of claim alleges that by submitting its tender to Ove Arup Thiess represented:- ""(a) that it was a tender arrived at independently of any other tenderer; (b) that it was a realistic tender for the Works; (c) that it was a competitive tender for the carrying out of the Works having regard to the nature and extent of the same." 7. Thiess by para.38 of 1ts defence responds as follows:- "As to paragraph 42 of the Re-Amended Statement of Claim, save that Thiess admits that by submitting its tender it represented:- (a) that it was a tender arrived at independently of any other tenderer; (b) that it was a realistic tender for the Tendered Works; and (c) that it was a competitive tender for the carrying out of the Tendered Works having regard to the nature and extent of the same, Thiess otherwise denies each and every fact and matter alleged therein." The same complaint is made in relation to this paragraph as was made in relation to sub-para.30(a). I reject that complaint for the same reasons that I declined to strike out sub-para.30(a). (v) Paragraph 42 of the Thiess Defence Thiess concedes that this paragraph requires re-pleading. I will direct that it be struck out. (vi) Paragraph 45 of the Thiess Defence This paragraph is a general statement in the following terms:- "Thiess denies that it 1s liable to Bond as alleged in its Re-Amended Statement of Claim, or at all." 8. The words "or at all" are complained of as raising a false issue. I consider this to be a semantic point. The pleading read in context makes it clear that Thiess concedes neither whole nor part of the liabilities asserted by vond. I decline to strike out the words "or at all" in the paragraph. Bond's Motion in Relation to Thiess' Cross-Claim The second part of Bond's motion relates to Thiess'' cross-claim. By the cross-claim Thiess pleads its Schedule of Rates contract with Bond for the carrying out of works at Millendon and sets out various of its terms. It alleges that by reason of variations to the works directed by Ove Arup, the supervising engineers under' the contract, Bond became liable to pay 1t at rates other than those set out in the Schedule. These payments, it 1s said, have not been made in respect of numerous variations which are identified in the pleading. Alternatively, Thiess alleges that by reason of the variations 1t was involved in loss and expense not provided for elsewhere in the contract and is thereby entitled to reimbursement pursuant to clause 23 of the contract or at common law. Claims for further loss and expense arising out of contractual terms and for damages for breach are also raised. Various declarations are sought together with orders for payment of moneys due and owing. (vii) 9. Paragraphs 11 to 19 of the Thiess Cross-claim Paragraph 8 of the cross-claim pleads clause 40 of the contract alleging that Ove Arup had power from time to time by notice variations there set out. in writing to direct Thiess as to enumerated classes of The provisions of clause 40 in relation to the valuation of variations are set out in sub-para.8(e) which provides:-— "8(e) A variation would be valued in accordance with the rates included in the Priced Billi of Quantities or Schedule of Rates even 1f and in so far as those rates were applicable to the variation. Where Ove Arup determines that the rates included in the Priced Bill of Quantities or Schedule of Rates did not apply to a variation, the rate or price payable for the variation would be determined by agreement between Thiess and Ove Arup, but 1f Thiess and Ove Arup failed to agree on the rate or price Ove Arup would determine such rate or price as it considered reasonable, or 1t could direct that the variation be carried out as Daywork." In paras. 11 and 12 Thiess alleges a= number directions by Ove Arup to vary the works. of As a consequence of these variations the nature and the quality of the work to be carried out by Thiess under the contract was said to have been substantially changed and _ increased (para.13). accordance with numerous other directions from Ove Arup 14). Thiess says it carried out the works as varied and in (para. 10. It 18 alleged in para.15 that by reason of the number, Mature and consequences of the variations, the Schedule of Rates became inapplicable to them. Paragraph 16 then alleges:- "In the premises, by Clause 40 of the Contract, Bond 1s liable to pay Thiess for the Variations at rates other than the rates included in the Schedule of Rates." The nature or basis for calculation of the other rates 1s not exposed by the cross-claim. Paragraphs 17, 18 and 19 plead variations in respect of which payments have been made and those for which payments have not been made, or which have been paid only according to the Schedule of Rates. The applicant's point about these paragraphs 1s that they raise a course of action based upon clause 40 of the contract. But no entitlement to a varied rate flows from that clause as pleaded in para. 8(e) of the cross-claim except by agreement or determintion by Ove Arup. Neither agreement nor determination 1s pleaded. I consider this objection well taken. Thiess must plead a legal basis for 1ts claim, be it contractual, a claim in quantum meruit, an implied term to pay reasonable rates or otherwise. ll. This it has failed to do and these naragraphs cannot stand in the present form. (vi1i) Paragraphs 20 to 22 of the Cross-claim Paragraph 7 of the cross-claim pleaded clause 23 of the contract, the relevant parts of which were set out in sub-paras. 7(e) and (£):- "(e) If Thiess considered that 1t was involved in loss Or expense beyond that provided for elsewhere in the Contract by reason of:- (i) compliance by it with a direction of Ove Arup, or (21) Ove Arup withholding, unreasonably delaying or refusing to give a direction which he is by the Contract required to give, provided that such direction was not withheld, refused or delayed by reason of or in relation to some breach of the Contract by Thiess, then Thiess could claim payment by Bond of such loss or expense by:- (A) giving in writing promptly after becoming aware of such situation, notice thereof to Ove Arup, such notice to contain particulars of the direction and if the amount of the loss and expense is then known an itemized statement thereof, and (B) if the amount of such loss and expense was not then known, giving to Ove Arup the notice referred to in sub-paragraph (A) and as soon as practicable thereafter giving an itemized statement. (f) Ove Arup shall thereupon determine the amount of any such loss and expense and give notice in writing thereof to Bond and Thiess. The amount so determined would be paid by Bond to Thiess." 12. Paragraph 20 of the cross-claim alleges that the variations were directions within the meaning of clause 23 and that by complying with them and other directions given by Ove Arup, Thiess "was involved in loss and expense of the type contemplated by Clause 23." Paragraphs 21 and 22 then provide:- "21. In the premises, by Clause 23 of the Contract, and further or alternatively at common law, Bond is liable to pay Thiess for such loss and expense. 22. Despite demand by Thiess, Bond has failed to make payment to Thiess of all moneys to which Thiess 1s entitled to in respect of such loss and expense." The entitlement "at common law" is not' further explained. There are no material facts pleaded to support it. Thiess concedes that these words should be struck out. As to the balance of paras. 20, 21 and 22, it 1s said that clause 40 of the contract as pleaded in para.8 makes provision for the costing of variations. Thus, 1t 1s said, clause 23 as pleaded 1s inapplicable and relates only to "loss and expense beyond that provided for elsewhere in the contract". I would not be prepared to strike out these paragraphs on that basis, as it may be open to argument that clause 23 applies to some forms of expenses incurred as the result of variations to the works. oe eens 13. However clause 23 as pleaded in paragraphs 7(e) and (f) requires a determination by Ove Arup as a condition of liability and no such determination is pleaded. On this basis paragraphs 20 to 22 of the cross-claim must be struck out, the material fact necessary to establish a cause of action based on clause 23 not having been pleaded. (1x)(a) Paragraphs 23 to 26 of Thiess' Cross-claim By para.23 of 1ts cross-claim Thiess alleges unreasonable delay on the part of Ove Arup 1n providing notice of certain variations. This, 1t is said, in para.24, has given rise to loss and expense not provided for elsewhere in the contract and therefore of a type contemplated by clause 23. Paragraphs 25 and 26 then allege:- "25. In the premises, by Clause 23 of the Contract, and further or alternatively at common law, Bond 158 liable to pay Thiess for such loss and expense. 26. Despite demand by Thiess, Bond has failed to make payment to Thiess for such loss and expense, or any part thereof." It 1S again conceded that the reference to common law in para.25 should be struck out. 14. It 1s contended by Bond that nowhere in the cross-claim 1s there any plea of any obligation on the part of Ove Arup to provide Thiess with reasonable notice of variation. The plea set up in paras.23 to 26 as I read it, does not rely upon the existence of any such obligation but rather relies upon the loss and expense flowing from the delayed notice of variation as loss and expense of the type contemplated by clause 23. %JI would not therefore strike those paragraphs out for fa2rlure to plead such obligation. To the extent however that they rely upon clause 23 as pleaded, they must show a determination by Ove Arup or some other material facts grounding an entitlement. This they do not and in my opinion require repleading for the same reasons as paras. 20 to 22. They will therefore be struck out. (ix)(b) Paragraphs 27 and 28 of Thiess' Cross-Claim These paragraphs can stand when read with para. 52 of the cross-claim, There is plainly a case for the provision of particulars as to the implied term alleged and as to the damage flowing from the breach thereof but this does not justify an order striking out these paragraphs. (x) Paragraphs 35 to 42 of Thiess' Cross-Claim Paragraph 35 pleads clause 34 of the contract requiring the supply of a works programme by Thiess and the submission of 15. bar chart or critical path construction programmes for Ove Arup's approval. It pleads that Ove Arup would from time to time approve or direct a deviation from programme and that Thiess supplied to 1t a further programme. It also alleges an entitlement under sub-clause 34.3 to reimbursement of extra costs incurred by Thiess as a result of any deviation from programme directed by Ove Arup. An initial programme (para.36) and further programmes (para.37) were supplied. Ove Arup directed deviations from time to time (para.38). These changes in programme were due, it is said, to acts, defaults or omissions by Ove Arup or _ Bond (para.39). As a consequence of the changes Thiess claims to have incurred extra costs in carrying out the works as varied (para.40). Pursuant to clause 34.3 or clause 23, Bond 1s alleged to be liable to reimburse Thiess (para.41) and has failed to do so (para.42). The same obstacles as previously outlined, stand in the way of applying clause 23 to these facts, absent a plea of any determination by Ove Arup. I am not satisfied however that the plea must fail in relation to clause 34.3 of the contract. I will 16. therefore simply strike out the words "or alternatively clause 23" where they appear in para.4l. (x1) Paragraphs 43 to 51 of Thiess'' Cross-Claim Paragraph 43 pleads an express term of the contract - clause 35.2, whereby Thiess could give to Ove Arup notice of its wish to suspend the works. Upon such notice Ove Arup could, if it thought 1t reasonable or necessary to do so, grant permission for a suspension of the whole or any part of the works. If the suspension were due to an act, default or omission of Bond or Ove Arup, Thiess would be entitled to payment of any extra costs of completing the works incurred by it that were attributable to such act, default or omission. Paragraph 44 pleads 5 occasions on which Thiess notified Ove Arup that it wished to suspend work under the contract. Ove Arup refused to grant permission until 9 August 1985 when 1t agreed to a suspension of part of the works (para. 45). Its delay in granting permission 1s said to have been unreasonable (para. 46). Thiess, 1t 1S said, incurred loss or expense of a type contemplated by clause 23 because 1t was required to carry out work under the contract (para.47). 17. Further, 1t 1s contended that the suspension was due to the action of Ove Arup (para. 48) and that Thiess incurred extra costs aS a result of that suspension (para. 49). By reason of "clause 35.4 or alternatively clause 23.1 of the contract" Thiess claims it 1s entitled to be paid by Bond for such extra costs of completing the Tendered Works (para.50). Bond, 1t 1s said, has failed to so pay Thiess (para.51). The claim must fail in so far as it relates to clause 23 for failure to plead the necessary determination by Ove Arup. For this reason paras. 46 and 47 must be struck out. However I am not prepared to strike out paras. 43 to 45 and 48 to 51. The words "or alternatively Clause 23.1" which appear in para.50 will be struck out. (xii) Paragraphs 52 to 55 of Thiess' Cross-Claim Paragraph 52 pleads further, and in the alternative, that by reason of various matters Thiess was delayed in carrying out and completion of work under the contract. As a consequence, it is said that Thiess 1s entitled to a 33 week extension for completion of this work, that 1t completed the work on 27 March 1986 and that it has suffered loss and expense (para.53). 18. In reliance upon clause 23 and alternatively clause 36.4, and alternatively at common law, 1t claims that Bond 1s liable to it for such loss and expense (para.54). Bond has failed to make payment (para.55). Clause 36.4 which relates to delays, 1s pleaded in para. 9 of the cross-claim. This requires a determination by Ove Arup that Thiess 1s entitled to the extra costs. No determination 1s pleaded nor is any liability arising independently of such determination alleged. The same problem arises in respect of clause 23. Paragraphs 52 to 55 of the cross-claim must therefore be struck out. Bond's Motion in Relation to Ove Arup's Defence (i)-(vii) Paragraphs 5, 9, ll, 12, 13 and 14 of the Ove Arup Defence Paragraph 5 pleads to para.l12 of the re-amended statement of claim which alleges the various representations said to have been made by Thiess to Ove Arup as to its capabilities, knowledge and experience. Bond says that para.5 only gives rise to an issue between Bond and Thiess and not between Bond and Ove Arup. 19. Counsel for Ove Arup made reference to the Federal Court Rules and in particular 0.11 r.13 which provides:- "13(1) Subject to sub-rule (3) and to Order 43, rule 7 (which deals with persons under disability), an allegation of fact made by a party in his pleading 1s deemed to be admitted by the opposite party unless it 1S traversed by that party in his pleading or a joinder of issue under rule 14 operates as a denial of it." In my opinion, however, an allegation made by a plaintiff against a party in support of a cause of action against that party only, does not render a co-defendant an "opposite party" for the purposes of the rule. To require Ove Arup to plead in such circumstances 18S to raise a potential host of false issues. Ove Arup also points out that Bond claims against it an indemnity in respect of any moneys that may be due to Thiess by Bond under the contract. It seems clear, however, that the indemnity so claimed does not relate to any liability flowing from Thiess' representations to Ove Arup. In the circumstances I am not persuaded that para. 5 alleges any matter properly in issue between Ove Arup and Bond and 1t will be struck out. The same considerations apply to paras. 7, 9, ll, 12, 13 and 14 and they too will be struck out. 20. That is not to say that matters of fact addressed in the pleadings as between Bond and Thiess may not be raised by Ove Arup in its defence if relevant to 1ssues between 1t and Bond. That should not be done by pleading to allegations which on the face of the statement of claim are raised only 1n support of causes of action against Thiess. (vi1i) Paragraph 18 of the Ove Arup Defence Paragraph 48 of the re-amended statement of claim alleges that by an agreement between Bond and Ove Arup in February 1982, Bond retained Ove Arup to act as its consulting and supervising engineer for the development of Brigadoon and to provide all necessary consulting, supervisory and design services. Particulars of the services are given. Paragraph 18 of the defence 1s said to be an evasive answer to the allegations as it is not possible to detail what 1s admitted and what is denied. Sub-paragraph 18(a) does not make clear what 18 admitted and what precisely is denied in relation to para.48. Sub-paragraph 18(b) 1s clear enough and could, I think, stand in its present form, 4a Cir Te aa Torment ory 21. As to sub-paras. (c), (d) and (e) which plead the particulars in para.48, the objection taken by Bond loses some of its force when the boundary between the particulars and material facts has been blurred by their direct incorporation into the statement of claim. Any difficulty in this area can be eased by making clear in para. 18 which part comprises a plea of material fact and which part comprises particulars. I consider, however, that the appropriate course 1s to strike out para.18, since, taken as a whole, it does not adequately plead to para.48. (1x) Paragraph 20 of the Defence This pleads to para. 52 which alleges that the various representations made by Ove Arup to Bond were false. In my opinion the criticism of the paragraph advanced by Bond is made good. It does not clearly admit or deny the allegation and introduces irrelevant material relating to Bond's state of mind. It should be struck out and repleaded. (x) Paragraph 21 of the Ove Arup Defence Paragraph 21 of the defence pleads to paras. 53, 54 and 55 of the re-amended statement of claim. By these it is variously alleged that the untrue representations attributed to Ove Arup constituted misleading or deceptive conduct (para.53). 22. Bond 1s said to have acted on Ove Arup''s advice in reliance upon the representations and to be developing Brigadoon at a cost in excess of the estimates given by Ove Arup to Bond in 1985. In consequence of this matter, Bond is said to have suffered loss and damage. Paragraph 21 of the defence reads:- "Paragraphs 53, 54 and 55 of the Statement of Claim are denied and Ove Arup further says that the estimate of approximately $10,091,700 given by Ove Arup to Bond in 1985 immediately before the agreement was a fair and reasonable estimate of the cost of developing Brigadoon, having regard to the information available to Ove Arup at that time." The balance of the paragraph after the denial 1s said to be a self-serving mixture of evidence and argument. I am not persuaded, however, that the allegation of a fair and reasonable estimate 1s so obviously irrelevant that it should be struck out of the defence. I therefore make no order in respect of para. 21. (x1) Paragraph 22 of the Ove Arup Defence This pleads to para. 56 of the re-~amended statement of claim which alleges certain representations of estimated work costs by Ove Arup to Bond in February 1985. 23. By para. 22 Ove Arup denies the allegations but goes on to plead additional materials said to be irrelevant. I cannot exclude the possibility that the material may relate to the alleged purpose of Ove Arup in seeking to induce Bond to proceed with the works. I decline to strike out para. 22. (xii) Paragraphs 24 and 25 of the Ove Arup Defence Paragraph 24 was amended at the hearing of the motion to make clear that 1t was pleading to para.61 and not 62 of the re-amended statement of claim. As an answer to para.61 it lacks clarity but not to the extent that I would strike it out. Paragraph 25 answers both paras. 61 and 62 with a general denial. Its incorporation of a reference to para.24 plainly applies only to para.6]1 of the re-amended statement of claim. I make no order in relation to paras.24 and 25 of the defence. (x111) Paragraph 27 of the Ove Arup Defence Paragraph 64 of the re-amended statement of claim pleads breach by Ove Arup of a term of 1tS agreement with Bond that 1t would exercise reasonable skill, care and judgment i1n_ the performance of the contract. 24. In para.27 Ove Arup has denied para.64 and set out some 28 sub-paragraphs by way of answers to the particulars embodied in that paragraph. I would not strike out the sub-paragraphs as pleading to the particulars, but would be prepared to treat them as particulars of the defence. However they are rightly criticised as to form. They lack clarity and embody evidence and argument. I do not propose to spend time endeavouring to excise those portions which may be salvageable. All parts of para.27 after the word "denied" will be struck out. Thiess' Motion for Further and Better Particulars of the Statement of Claim By this motion Thiess seeks orders for the provision of further and better particulars in relation to paras. 15, 22, 28, and 40 of the re-amended statement of claim. A request for particulars was filed in relation to these paragraphs but the particulars sought were denied. (i) Paragraph 15 of the Statement of Claim Paragraph 15 alleges that the representations said to have been made by Thiess as to 1ts capabilities, knowledge and expertise were untrue. 25. The particulars of that falsity proviaed in para.15 are unhelpful and almost flippant in their form which 1s a restatement of each of the representations with the word "not" inserted. Thus ut 1s alleged:- "Thiess did not have the management and procurement capability to undertake the Works." Thiess is plainly entitled to better particulars than this. Bond must identify with greater precision the deficiencies which falsify the representations. The same 18 true of each of the other particulars of para.15, save for particular (3) which seems to be sufficiently narrowly framed not to require further elaboration. Without such definition, there 18S a real risk of unnecessary discovery. I will therefore order that the provision of the further and better particulars sought by the motion be given in respect of sub-paras.(1), (2), (4), (5), (6) and (7) of para. 15 of the statement of claim. 26. (11) Paragraph 22 of the Statement of Claim This paragraph refers back to para.19 which alleges that at the time of submitting its tender to Ove Arup, Thiess represented that 1t was able to and would carry out the work for $2,169,256.00. It also alleges that on 12 March 1985 Thiess represented that 1t would be able to carry out the works for $1,722,453.00. Paragraph 22 then goes on:- "The representations referred to in paragraph 19 were, at the time they were made, untrue to the knowledge of Thiess. PARTICULARS (1) Thiess knew, at the time of submitting the Thiess Tender, that it could not carry out the Works for $2,169,256 and had no intention of doing so; (2) Thiess knew. at the time 1t made the representation referred to 1n paragraph 19(b) hereof that 1t could not carry out the Works for $1,722,453 and had no intention of doing so." Thiess seeks particulars in the following terms:- "For each matter which is alleged to have been "untrue to the knowledge of Thiess":~ (i) state who on the part of Thiess is alleged to have known the same; (11) specify with particularity each fact, document and overt act relied upon by the Applicant as giving rise to such knowledge." 27. As to the first element, it 1s, I think, eminently reasonable that where what amounts to an allegation of fraud 1s Made against a corporation the person or persons said to be responsible should be identified. So too, should the facts relied upon as giving rise to the guilty knowledge. I do not go so far as the motion which would require also the identification of each document and overt act relied upon. (111) Paragraph 28 of the Statement of Claim Paragraph 26 of the statement of claim for some reason repeats word for word para.19. Paragraph 27 alleges that the representations attributed to Thiess were false and in para.28 it is alleged:- "Thiess, at the time such representations were made, knew them to be false and untrue or made them recklessly not caring whether they were true or false." The same particulars of Thiess' alleged knowledge of falsity are sought as in respect of para.22. In addition the motion seeks an order that Bond:- "Pully particularise the material facts by which the Applicant alleges that the First Respondent made the relevant representations "recklessly not caring whether they were true or false"." 28. For the same reasons as in relation to para.22, I will order that Bond provide further and better particulars in similar terms of those allegations and of the alleqations of recklessness. (iv) Paragraph 40 of the Statement of Claim Paragraph 40 alleges in effect a collusive tendering arrangement or understanding between Thiess and Leighton. This is a grave accusation which amounts to another claim of fraud. Such claims cannot, of course, be lightly made, and the parties accused are entitled to full particulars. In my opinion the particulars sought are reasonable and should be provided and I will so order. Thiess' Motion for a Separate Trial as to Quantum Thiess moves for orders in the following terms:- "1. The quantification of any moneys to which the Applicant may be entitled by reason of any of the matters set forth in the Amended Statement of Claim herein be tried and determined separately from and after the trial and determination of all issues as to:- (a) liability; and (b) the method by which such moneys ought to be quantified. 2. The quantification of any moneys to which the Cross-Claimant may be entitled by reason of any of the matters set forth in the Cross-Claim herein be tried and determined separately from and after the trial and determination of all issues as to:- reat on 29. (a) liability; and (b) the method by which such moneys ought to be quantified. 3. Further directions as to the quantification of any moneys to which the Applicant or Cross-Claimant may be entitled are to be given following the trial and determination of the issues set forth in Order l(a) and (b) and Order 2(a) and (b)." In support of the motion Thiess tendered affidavit evidence from its Contracts Manager, Mr Peter Simper. Mr Simper''s evidence covered the extent of documentation that would need to be extracted from company records in order to provide evidence and give discovery in relation to costs on the contract works. He estimated that 1,000 man hours would be needed to retrieve all relevant documents. I am, however, not satisfied that it 1s going to be necessary to discover all records including primary documents such as pay slips relating to the carrying out Of the contract. I do not wish to be taken as foreclosing that issue aS 1t may be a matter for debate at the next interlocutory stage. So far as the proof of costs 1s concerned, it may be that in the absence of agreement the need to produce high volume primary records may be averted by the application of s.79C of the Evidence Act 1906 (WA). More importantly however, I am not presently persuaded that the question of quantum can readily and conveniently be 30. severed from the 1ssue of liability. Actual loss 1s an element of the cause of action under s.82 of the Trade Practices Act as it 1s of the cause of action 1n negligence. The essence of the dispute relates to time and cost overruns and questions as to the applicability and appropriateness of the Schedule of Rates given changes in the quantities and nature of the work done. It will be open to Thiess or other parties to move again for a separate trial on any issue ancluding quantum = when interlocutory steps are closer to completion. For the moment I am not satisfied that an order for such a separate hearing would result in a more convenient disposition of the case. Thiess' motion in this regard will be dismissed. I certify that this and the preceding twenty nine (29) Pages are a true copy of the Reasons for Judgment of his Honour Justice French. Associate: De brody Ute pate: | (tober 1967. 31. Counsel for the Applicant: Mr S. Archer with Mr P. Tottle Solicitor for the Applicant: Robinson Cox Counsel for the First Respondent: Mr P. Clifford with Mr S. Penglis Solicitor for the First Respondent: Freehill Hollingdale & Page Counsel for the Second Respondents: Mr L.E. James Solicitor for the Second Respondents: Kott Gunning Date of Hearing: 3 August 1987 Date of Judgment: 1 October 1987