Supreme Court New South Wales Medium Neutral Citation: GC Group Company Pty Ltd v Bingo Holdings Pty Ltd [2020] NSWSC 598 Hearing dates: On the papers Date of orders: 20 May 2020 Decision date: 20 May 2020 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Paragraphs 44 to 52 of the Technology and Construction List Response struck out; liberty to re-plead Catchwords: PRACTICE AND PROCEDURE – pleading – alleged apportionable claim – whether adequately pleaded Legislation Cited: Civil Liability Act 2002 (NSW) Category: Consequential orders (other than Costs) Parties: GC Group Company Pty Ltd (Plaintiff) Bingo Holdings Pty Ltd (First Defendant) Bingo Recycling Pty Ltd (Second Defendant) Bingo Waste Services Pty Ltd (Third Defendant) Wollongong Recycling (NSW) Pty Ltd (Fourth Defendant) Representation: Counsel: F Corsaro SC and D Byrne (Plaintiff) PW Larkin SC and T To (Defendants) Solicitors: Kells Lawyers (Plaintiff) Law Corporation P/L (Defendants) File Number(s): 19/399168 Judgment 1. The plaintiff, GC Group Company Pty Ltd, was a subcontractor in a residential subdivision at Albion Park engaged to design and construct a retaining wall. GC Group ordered "recycled aggregate" from the defendants, Bingo Holdings Pty Ltd and Bingo Recycling Pty Ltd (together, "Bingo"), which it used as backfill. 2. GC Group alleges that the aggregate supplied by Bingo was contaminated and that, as a result, GC Group was obliged to effect substantial reconstruction works at its own cost and has thereby incurred loss and damage. 3. In its Technology and Construction List Response, Bingo asserts that any contamination in the aggregate came from materials supplied to it by its "Customers" and, perhaps, from "SCE Recycling". 4. The "Customers" are not individually identified and are defined to be "a supplier of source material from which recycled or recovered aggregate was processed." The particulars to paragraph 44 of the Response state that the identity of the Customers "will be provided by way of an affidavit in respect of which an appropriate confidentiality undertaking or order will be sought". 5. "SCE Recycling" is not further identified. 6. In paragraphs 46 and 47 of the Response it is alleged: "46. The Defendants say that all material received at the Facility Premises was the subject of: a. Terms of entry to the Facility Premises prohibiting the bringing by Customers to the Facility Premises of any material not able to be lawfully received at the Facility Premises, including but not limited to asbestos; and/or b. Terms of a contract prohibiting the supply by a Customer of any material not able to be lawfully received at the Facility Premises, including but not limited to asbestos; and/or c. Terms of a contract in which a Customer represents or warrants that the material supplied is not contaminated, including by asbestos; and d. Section 143 of the [Protection of the Environment Operations Act 1997 (NSW)]. 47. To the extent material supplied by Bingo Recycling to GC Group was contaminated, such contamination came from material supplied by Customers of the Bingo Group, in breach of the terms identified in paragraph 46 above." 1. The "contracts" referred to in sub-paragraphs 46 b and c are not identified. 2. So far as concerns "SCE Recycling", paragraph 50 of the Response alleges: "50. The Defendants further say, that in addition to the recovered aggregate supplied by Bingo Recycling, GC Group was also supplied with, and used, recovered aggregate supplied by SCE Recycling. The source of any contamination (which is denied) has not been demonstrated to come from the material supplied by Bingo Recycling." 1. Bingo then alleges: "In the circumstances, each of the Customers and SCE Recycling may be a concurrent wrongdoer in relation to GC Group's claim. To the extent the Defendants, or any of them, are found to be liable to GC Group, the Defendants say its, or their, liability is limited to an amount reflecting that proportion of the damage or loss claimed the court considers just, pursuant to section 35 of the Civil Liability Act 2002." 1. By Notice of Motion filed on 4 May 2020, GC Group seeks to strike out these paragraphs, as well as earlier introductory paragraphs ([44] to [50]). 2. The impugned paragraphs appear to be directed to the proposition that GC Group's claim is an "apportionable claim" under s 34 of the Civil Liability Act 2002 (NSW) and that Bingo's liability to GC Group should be limited under s 35 of that Act. 3. I see a number of difficulties with the pleadings in their current form. 4. The first is that Bingo presently alleges that the "Customers" and "SCE Recycling" "may" be a "concurrent wrongdoer in relation to GC Group's claim". 5. But what must be pleaded is that Bingo, as the defendant, "is" a concurrent wrongdoer, that is: "…a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim." [1] 1. Second, a defendant who alleges that it is a concurrent wrongdoer and that the claim is an "apportionable claim" for the purposes of s 35(1) of the Civil Liability Act 2002: "…should plead with the same degree of precision and particularity as it would have done before the [Civil Liability] Act if it were bringing a cross-claim against an alleged concurrent wrongdoer." [2] 1. That would involve, at least, identifying the "Customers" in some way [3] and pleading how those "Customers" and "SCE Recycling" would be liable to Bingo were Bingo to have brought a cross-claim against them. 2. The current pleading falls far short of these requirements. 3. I order that paragraphs [44] to [52] of the List Response be struck out. 4. I direct that the defendants circulate any proposed Amended Technology and Construction List Response by 5.00pm on 27 May 2020. 5. I order that the defendants pay the plaintiff's cost of the plaintiff's notice of motion of 4 May 2020 and that those costs may be assessed and payable forthwith. 6. The plaintiff seeks an order for indemnity costs on the basis that, by its solicitor, it foreshadowed the basis upon which this application would be brought by filing its notice of motion. I do not see that as a matter that, in the circumstances of this case, justifies an order for indemnity costs. 7. I stand the matter over for further directions on 29 May 2020. ********** Endnotes 1. Section 34(2) of the Civil Liability Act 2002 (NSW). 2. Ucak v Avante Developments Pty Ltd [2007] NSWSC 367 at [41] (Hammerschlag J). 3. Assuming a basis for the confidentiality of their identity is established: see [4] above 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. Decision last updated: 20 May 2020