KCL Developments Pty Limited v TQM Design & Construct Pty Limited & Ors [2011] NSWSC 780

KCL Developments Pty Limited v TQM Design & Construct Pty Limited & Ors [2011] NSWSC 780

The strike out application was dismissed because it was not a plain and obvious case for strike out, fell foul of the Technology and Construction List Practice Note discouraging such applications, depended on contested factual and legal questions including the substance and effect of the 1 October 2009 document, admissions, estoppel, defects and liquidated damages, and the defendants' complaints about the pleadings either sounded in matters of fact or required proper judicial consideration at the substantive hearing rather than summary determination.

Jurisdiction
Australia
Judgment Date
22 July 2011
Procedural Posture
Application for Strike Out of Pleadings Pursuant to Part 14 Rule 28 (a) (c) of the Uniform Civil Procedure Rules 2005 / Interlocutory Application in the Equity Division Technology and Construction List
Outcome
The application is dismissed with costs.
Legal Topics
['strike Out of Pleadings' 'summary Determination' 'technology and Construction List' 'evidence on Strike Out Application' 'construction Contract Dispute' 'estoppel' 'admissions' 'liquidated Damages' 'defective Works']
['civil Procedure' 'construction Law' 'contract Law'] ['strike Out of Pleadings' 'summary Determination' 'technology and Construction List' 'evidence on Strike Out Application' 'construction Contract Dispute' 'estoppel' 'admissions' 'liquidated Damages' 'defective Works']

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Procedural Posture

Application for Strike Out of Pleadings Pursuant to Part 14 Rule 28 (a) (c) of the Uniform Civil Procedure Rules 2005 / Interlocutory Application in the Equity Division Technology and Construction List

Legal Issues

  1. 1 ['Whether the amended summons and list statement should be struck out under Part 14 rule 28 (a)-(c) of the Uniform Civil Procedure Rules 2005.' 'Whether the Court should entertain a strike out application in the Technology and Construction List having regard to Practice Note SC Eq 3.' 'Whether the defendants could rely on evidence and alleged admissions or estoppels arising from the 1 October 2009 document on a strike out application.' 'Whether the pleaded matters concerning benchmark standard, surplus funds, comparison with Mirvac apartments, promissory misrepresentation, defects and liquidated damages were so defective as to warrant strike out.']

Ratio Decidendi

The strike out application was dismissed because it was not a plain and obvious case for strike out, fell foul of the Technology and Construction List Practice Note discouraging such applications, depended on contested factual and legal questions including the substance and effect of the 1 October 2009 document, admissions, estoppel, defects and liquidated damages, and the defendants' complaints about the pleadings either sounded in matters of fact or required proper judicial consideration at the substantive hearing rather than summary determination.

Court Disposition

The application is dismissed with costs.

Orders

  • ['The application be dismissed with costs.']