New South Wales Supreme Court CITATION : Leighton Contractors Pty Limited v Australian Mutual Provident Society and Another [2001] NSWSC 390 FILE NUMBER(S) : SC 55053/00 HEARING DATE(S) : 4/05/2001 JUDGMENT DATE : 4 May 2001 Leighton Contractors Pty Limited (Plaintiff) PARTIES : Australian Mutual Provident Society (First Defendant) AMP Life Limited (Second Defendant) JUDGMENT OF : Einstein J COUNSEL : Mr M Rudge SC (Plaintiff) Mr P Liney (Defendants) SOLICITORS : Clayton Utz (Plaintiff) Corrs Chambers Westgarth (Defendants) CATCHWORDS : Practice and Procedure-Construction List-particulars DECISION : Motion to provide particulars stood over pending completion of plaintiff's evidence. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION - CONSTRUCTION LIST EINSTEIN J Friday 4 May 2001 ex tempore revised 11 May 2001 55053/00 LEIGHTON CONTRACTORS PTY LIMITED v AUSTRALIAN MUTUAL PROVIDENT SOCIETY AND ANOTHER JUDGMENT 1 HIS HONOUR: In proceedings 55053/00 there is before the Court an amended notice of motion filed by the defendants, in which the defendants seek a number of orders, including orders that the plaintiff, by 27 April 2001, identify what parts of the claim for delayed costs (item MC 558 in its Schedule of Variations) form part of the value of what variation. The amended Notice of Motion also seeks directions that the plaintiff, by 27 April 2001, provide detailed particulars of the variations described as, "Subcontractor Variation Claims" (items MC 550-557 in its Schedule of Variations) and any instruction of the project manager which is relied upon in relation to them or, alternatively, identify what parts of the "subcontractor variation claims" form part of the value of what variations. 2 The amended Notice of Motion is self-explanatory in terms of the orders which are sought, including particulars of items in the plaintiff's summary of variations of 6 March 2001. 3 The proceedings commenced with the filing of a summons on 22 December 2000 and moved through the filing of a defence on 30 March 2001, a filing of a cross-claim by the defendants on the same day and a defence to the cross-claim being filed on 18 April 2001. In support of the amended notice of motion a number of affidavit have been filed and affidavits in answer to the application for the orders sought in the motion have also been filed. Written submissions have been furnished to the court in support of and in answer to the notice of motion. 4 The proceedings have been dealt with today without the court being taken to the detailed affidavits, although in preparation for the motion, and while reading the submissions, I did have an opportunity to follow a number of the matters set out in the very detailed affidavits. I do not profess to having obtained, in any way, anything like a sufficiently detailed understanding of all the items and paragraphs in all of the affidavits, but I have the firm impression, from the reading of the affidavits and from the submissions, that the plaintiff in these proceedings has, on a number of occasions, moved in terms amendments made to the particular schedule of variation claims, it being the case that the plaintiffs have been, time and time again, pressed by the defendants to identify the variations which are pressed. The defendants strongly submit that the plaintiffs have to an entirely unreasonable extent, moved the goal posts through the correspondence. 5 The motion has been dealt with today on the basis of the court pursuing, with the parties, the question of why the defendants should not be content with a reasonably firm timetable for the provision, by the plaintiff, of the plaintiff's evidence in circumstances of the magnitude of the subject claims. 6 Mr Rudge SC for the plaintiff has put forward the middle of August as the date by which the plaintiffs would be content to be directed to file and serve the evidence on which the plaintiffs will rely. A direction has been given to that effect, namely, that the evidence is to filed and served by the plaintiff by 16 August 2001. Mr Rudge also put forward a proposed date for mutual discovery and Mr Liney has accepted this date and a direction has been given for mutual discovery by 11 June. 7 In those circumstances it does appear that the shortcomings, if any, in the plaintiff's furnishing of particulars, may best be tested following the plaintiff's filing and service of their evidence in mid August. 8 The proceedings are to be stood over to 31 August 2001 for further directions and the amended notice of motion is to be stood over to 31 August 2001 for further consideration. 9 The defendants are not in any way to be taken as having waived their entitlement on 31 August to pursue orders of the nature they had intended to pursue today under the amended notice of motion, although the position on 31 August is likely, one certainly hopes, to be that the defendants by then will have the answers to the questions that they have been seeking to have answered in terms of the plaintiff's served evidence. 10 This leaves the question of the application by the defendants for an order to be made today for the plaintiffs to pay to the defendant all reasonable costs of and occasioned by and thrown away by the plaintiff's movement in recent months, in terms of the provision of particulars of variations and generally in terms of the matters which the defendants' solicitors have identified in the affidavits now before the Court. To my mind, and based upon the brief survey of the materials and the submissions, and of the materials referred to in the submissions, there seems to be considerable substance in the defendants' claim that they have likely wasted real resources in terms of endeavouring to understand and follow the changing stances taken by the plaintiff. It seems inappropriate today that any such order be made because there is, of course, a possibility between now and 16 August, that the plaintiff's may reintroduce approaches they had taken in one or other of their stances, with the net result that it could not then be said that costs had been thrown away by the changes. 11 In my view the appropriate course is to grant leave to the defendants to file and serve, on or before 24 August 2001, any affidavits in support of any motion seeking an order for costs said to be thrown away by the changes up to 4 May 2001 by the plaintiffs in terms of their particularisation of their claims. 12 The further examination of the position in terms of whether or not the Court should in fact, as I have suggested may well be the case on 31 August, make the order which Mr Liney pressed the Court to make today, will be for examination on 31 August, it being, however, obviously necessary that the plaintiff be given a proper opportunity to respond to the affidavits to which I have referred, if and when served by Mr Liney's clients. In short, the ball is in the defendants' court in terms of serving, if the defendants can, reasonably in advance of 31 August, affidavits upon which the defendants wish to rely, so that the plaintiff will be shown to have had sufficient opportunity, between date of receipt of those affidavits and 31 August, to reply. If Mr Rudge can make good the proposition on 31 August that his clients have not yet had the opportunity to reply to those affidavits, the court will, of course, have to accede to the matter again going over. 13 One way or another, it would seem desirable to endeavour to have 31 August as an occasion when the costs order should or should not be made, depending on whether the submissions in support or against the making of the order on those days may find favour with the Court. 14 In those circumstances the costs of the motion are reserved. The proceedings are stood over to 31 August 2001 and the directions which have been identified in the judgment from time to time are formally made. I certify that paragraphs 1 - 14 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 4 May 2001 ex tempore and revised on 11 May 2001 ___________________ Susan Piggott Associate 11 May 2001 Last Modified: 05/25/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.