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[2003] VCAT 1988
procedural. Application for summary dismissal dismissed; extensions given for filing expert reports and compliance with prior orders; costs ordered as the costs of the proceeding (see Orders).
VCAT refused an application by the architect-defendants to summarily dismiss or strike out the owners' claim under s75 of the VCAT Act. The Tribunal found the pleaded case against the architect to be deficient in form and 'radically flawed' in substance, but an expert report and further particulars supplied enough substance to show a triable case. Because the hearing was imminent and the damages sought against the architect were modest (about $23,000), the Tribunal exercised its discretion under s98 to leave the pleadings on foot rather than order strike out, extended directions for expert reports, and ordered costs as the costs of the proceeding.
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1,902 words · generated 30/08/2026
This is a directions‑hearing judgment from the Victorian Civil and Administrative Tribunal (Domestic Building List), delivered by Deputy President Macnamara on 26 August 2003 in Anker v Karolas Construction Group Pty Ltd (VCAT Reference D454/2001). The Applicants, Mr and Mrs Anker, sued a number of respondents arising from defective renovation and extension works to their property. The claims included allegations against the third and fifth respondents, Mr Ben Whitnall and Whitnall Designs Pty Ltd (the architect/consultant defendants), in both contract and negligence. The Applicants' amended Points of Claim were filed August 2002; an expert report by Permewan Consulting, dated 2 June 2003, attributed supervisory and specification failures to the architect and quantified damage against the architect at just over $23,000 ([1]).
No linked legislation citations have been extracted yet.
The third and fifth respondents applied (on the day of the directions hearing) for summary dismissal or striking out of the claim against them under s75 of the Victorian Civil and Administrative Tribunal Act 1998 on the ground the claim was frivolous, vexatious, lacking substance or otherwise an abuse of process ([2]). The respondents attacked the adequacy of the pleadings, saying the Points of Claim failed to plead the elements of contract or negligence properly, contained ambiguous and inconsistent allegations (eg paragraph 10 and paragraph 14), and inappropriately alleged vicarious liability for the builder's defective work ([3]–[7]).
The Applicants relied on the Permewan report and on further and better particulars supplied in June 2003. Those particulars, particularly paragraph 6 of the particulars, supplied many of the specifics missing from the amended Points of Claim and corrected the apparent mischaracterisation of vicarious liability ([8]). The Applicants emphasised that the claim against the architect was modest in quantum and that the Tribunal should avoid an over‑technical approach to pleadings when summary dismissal is sought ([9]).
The Tribunal accepted that the amended Points of Claim were seriously deficient in pleading. It also accepted that, as a strict matter of pleading rigour, the pleading would, if attacked earlier or had the claim been of greater value, have warranted strike out and repleading. Nonetheless, because the case was very close to trial and the amount claimed against the architect was modest, and because the Permewan report and particulars supplied an adequate formulation of the owners' case, the Tribunal exercised its discretion under s98 to refuse summary dismissal and to leave the pleadings on foot. The Tribunal made procedural orders extending time for the architect to file expert reports and ordered that costs of this application be the costs of the proceeding ([10]–[15]).
The decision turned on two linked themes: (1) the legal sufficiency of the pleadings; and (2) the Tribunal’s discretionary procedural power and the context in which that discretion should be exercised.
Pleading sufficiency: The Tribunal analysed the amended Points of Claim against orthodox expectations for pleadings in contract and negligence. The respondents pointed to missing elements: in contract, the parties, precise terms, breaches and damages; in negligence, the duty of care, breach and causation/damage. Specific examples of ambiguity and inconsistency were identified (eg paragraph 10’s use of 'in the circumstances' and the unclear relationship with paragraph 14’s alleged engagement; the apparent claim that the architect was vicariously liable for the builder’s defective work) ([3]–[7]).
Procedural discretion: The Tribunal recognised its statutory power under s98 to regulate its procedure and to exercise powers comparable to a court’s powers to deal with unsatisfactory pleadings, including striking out and ordering repleading ([12]). But that power is discretionary. The Tribunal expressly balanced strict pleading principles against equitable and practical considerations: the lateness of the application (close to the October trial), the modest quantum claimed against the architects (about $23,000), and the fact that an expert report (Permewan) and further particulars materially filled the gaps in the pleading and provided adequate notice of the case ([1], [8], [11]–[13]). For these reasons, the Tribunal concluded that summary dismissal or strike out would be inappropriate despite recognising the pleading defects ([10]–[13]).
The costs decision flows from the same balancing: although the applicants ‘won’ by surviving dismissal, the Tribunal regarded the applicants’ pleading as ‘radically defective’ and therefore ordered costs as the costs of the proceeding rather than granting a costs order in favour of either side ([14]–[15]).
The judgment treats two statutory provisions as central:
The judgment does not purport to change the law; rather it illustrates the Tribunal’s discretionary calibration between pleading formality and case management pragmatism. Before this decision, the legal framework (s75 and s98) was available to the Tribunal. The decision clarifies how those powers may be exercised: even where pleadings are defective to the point a strict court might strike them out, VCAT may exercise discretion not to do so when trial is imminent and the claim is small, provided there is material establishing a triable case (see [11]–[13]). That is the practical 'after' state for tribunal case management in comparable circumstances, at least as applied in this judgment.
Paragraph 10: "To the extent that this application seeks a summary dismissal ... it would be inappropriate to make such an order."
Paragraph 11: "The material ... in the report of Mr Permewan indicates to me that there is a case to be made ... Certainly this is not a case where ... one would simply conclude that it provided no legal entitlement to relief against the architect."
Paragraph 12: "I conceive that under s98 ... I am empowered to exercise the sort of powers that a court customarily adopts to deal with unsatisfactory pleadings."
Paragraph 13: "Had this application been made earlier ... I would unquestionably have decided that these amended points of claim are ... radically flawed and defective ... However, it is now so close to trial ... I think that would be an inappropriate course for so modest a claim."
Paragraph 15: "Accordingly, the Applicants have, as it were, had a lucky escape here rather than a victory."
Based on the reasoning in this judgment, the key factual and procedural triggers that would lead a Tribunal to refuse summary dismissal despite defective pleadings are:
Thus, in closely analogous circumstances, late challenge, modest claim, and supporting expert material/particulars, the Tribunal may decline to exercise the draconian remedy of dismissal.
The judgment itself does not discuss subsequent authorities or later treatment. It cites general authority for the proposition that summary dismissal/strike out is an extreme remedy and refers to analogous rules (Order 23 of the Supreme Court Rules) but does not cite particular decisions ([9]). From the decision’s reasoning one can infer the approach it invites later tribunals to take: apply s98 procedural powers flexibly, balance pleading rigour against trial proximity and claim magnitude, and give weight to expert reports and particulars that supply substantive notice. Any statement about how later courts or tribunals actually treated Anker v Karolas would require review of later decisions; that material is not included in this judgment and therefore is not set out here.
The judgment leaves several practical and doctrinal questions open, at least insofar as this single decision does not resolve them definitively:
The outer limits of the Tribunal’s discretion under s98: The judgment recognises broad powers analogous to courts to strike out pleadings, but it does not attempt to define thresholds at which discretion must be exercised to strike out rather than tolerate defective pleadings. The factors mentioned (proximity to trial, modest quantum, existence of particulars/expert report) were decisive here, but no comprehensive hierarchy or checklist is formulated ([12]–[13]).
The relationship between particulars and pleadings: The Tribunal accepted that particulars and an expert report cured many of the pleading deficiencies in this case. The judgment stops short of saying particulars can always supply missing pleaded elements and does not delineate when particulars are adequate in lieu of formal repleading ([8], [11]).
The costs consequences of striking out versus refusing to strike out: Here the Tribunal ordered costs as the costs of the proceeding, reflecting a middle ground because it found the pleading defective but declined to strike out. The judgment does not establish a rule about cost awards in similar contexts; it depends on discretionary assessment ([14]–[15]).
Application across different quantum levels: Deputy President Macnamara emphasises the modesty of the claim against the architect as a reason for tolerating the defective pleading. The judgment implies that higher‑value claims would attract a stricter approach but does not state precise cut‑offs ([13]).
Practitioners and tribunals dealing with late applications to strike out will need to assess this decision on its facts: it is a clear statement that timing, supporting evidence (such as expert reports), and claim quantum can be decisive in the exercise of procedural discretion, but it does not purport to abolish pleading requirements.
This analysis is based solely on the text of the judgment in Anker v Karolas Construction Group Pty Ltd [2003] VCAT 1988. It explains the Tribunal’s reasoning and the immediate implications in that factual matrix. It is general legal information, not legal advice. I may make mistakes. Before you act on this, rely on it, or use any draft or strategy informed by it, get a qualified Australian lawyer to check it.
Domestic Building List; Points of claim alleged to be embarrassing; contentions made out; close to trial; modest quantum; detailed expert report; no strike out on dismissal.
Karolas Construction Group Pty Ltd, Peter Karolas, Ben Whitnall, Single Entity Developments Pty Ltd
(Proceedings struck out 1 February 2002), Whitnall Designs Pty Ltd
1. Application for summary dismissal is dismissed.
2. The date for filing and service of Expert Reports by the Third and Fifth Respondents is extended to 4:00 PM 5 September 2003.
3. The time for compliance with Order 9 made 22 May 2003 is extended to 4:00 PM 12 September 2003.
4. Costs of this application are the costs of the proceeding.
1. This proceeding stands fixed for hearing in October. Today's application constitutes an attack upon the Applicants amended Points of Claim, which were delivered and filed as long ago as August 2002. The claim in its totality is mounted against the third respondent and the fifth respondent, Ben Whitnall and Whitnall Design Pty Ltd and against others, including Peter Karolas and Karolas Construction Group Pty Ltd, who are alleged to have been involved in a renovation and extension to the property owned by the Applicants, Mr and Mrs Anker, which went wrong. The substance of the claim against the third and fifth respondents was, it is said, to be found in a report by a Mr Permewan of Permewan Consulting, which is dated 2nd June 2003. The allegation to be found in this report is that Mr Whitnall and his company failed in a duty of supervision in the carrying out of the works and also failed in the proper definition of the scope of the works. The effect was that an unsteady and unsatisfactory floor was the basis for extensive improvements and extensions of which cannot now be satisfactorily used because they do not sit upon a flat and plumb floor. These improvements will have to be removed; the floor rectified then the improvements reinstalled. Mr Hellyer, who appears on behalf of the Applicants, says that the quantum of damage with respect to those matters is a sum just over $23,000.
2. The third and fifth respondents have applied for an order dismissing or striking out the claim against them, pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998, on the ground that the case against them is frivolous, vexatious, lacking in substance or otherwise an abuse of process. The application when mounted this morning by Mr Grahame consisted of an attack upon on the adequacy of the allegations in the Applicants amended Points of Claim against the third and fifth respondents.
3. The case, which is pleaded against them, is one in both breach of contract and negligence. Mr Grahame observed that classically in a case of breach of contract, one alleged the contract, one alleged certain terms, alleged breaches of those terms and damage flowing from the breaches.
4. With regard to a claim in negligence said Mr Grahame, the classic pattern of an effective pleading alleged a duty of care, a breach of the duty of care and resulting damage. In both cases claiming orders for the payment of damages to compensate the Applicant or Plaintiff for the respective breaches.
5. Analysis of these pleadings, said Mr Grahame, showed a failure to follow that pattern in either case. For instance, paragraph 10 alleged some form of contract between the Ankers as proprietors and Mr Whitnall and his Company as architects or consultants. This contract was said to have been entered into "in the circumstances". Mr Grahame submitted that the ordinary meaning of that introduction to the paragraph was that the events pleaded in the preceding paragraphs, namely a reference by Archicentre Pty Ltd, of the Applicants to the third and fifth respondents and certain discussions constituted the contract. I suggested to Mr Grahame that the proper construction of the paragraph might have been that that Applicants entered into a contract with the third and/or the fifth respondents induced or affected by the events that have been alleged in the previous paragraph. That is, the events in the previous paragraph were not being given their legal effect and characterisation by paragraph 10, rather they were being put as the background against which a further step, namely the making of a contract took place. Mr Grahame said that the paragraph in so far as it was susceptible of these two quite inconsistent interpretations was embarrassing and open to attack for that reason alone.
6. Mr Grahame took me to paragraph 14 which then alleged an engagement of the third or the fifth respondents by a letter dated the 29th February 1994 stating it was unclear what the relationship between this engagement as alleged in paragraph 14 and paragraph 10 might have been. Further he said that the reference to paragraph 32 with regard to breaches appeared to allege that in so far as the builder, namely the first and second respondents, had carried out defective work that the third and fifth respondents, the architect and his Company, were then vicariously responsible for that bad work. Mr Grahame said that this could not be so. In performing a supervisory role the architect owed a duty to supervise and prevent defective work; but that was not what was alleged. It was alleged simply that the defective work by the builder constituted a breach of contract or retainer by the architect.
7. Similarly with regard to the allegations of damage by reason of negligence, there was little alleged as to how any duty of care arose with respect to Mr Grahame's clients and no distinct allegation of breach and damage. In those circumstances said Mr Grahame the relief, which he sought, should be granted.
8. Mr Hellyer who appears on behalf of the Applicants did not as it seemed to me make much defence of the pleading itself. He said that in the circumstances the case, which the third and fifth respondents had to meet at trial, was adequately disclosed in places outside the points of claim themselves. He took the first to a report from Mr Permewan dated the 2nd June 2003 to which I have made general reference already. Next he took me to further and better particulars furnished by his client in response to a request by the architect's solicitors which were filed in June of this year. Mr Grahame observed that this filing was in the face of a self-executing order made by Professor Cremean. Be that as it may, particularly in paragraph 6, of those further and better particulars, a number of the matters which appeared to be omitted from the existing points of claim, namely specifics of breach of contract and specifics of breach of duty of care, were alleged thereby removing, for instance, the apparent allegation of vicarious liability of the architects for the wrongs and omissions of the builder.
9. Mr Hellyer observed that the quantum of the claim mounted against the second and fifth respondents was modest indeed. It was a claim which if brought in the court system would be dealt with in the Magistrates Court not in the Supreme Court or even the County Court. To enforce the rigorous rules of pleading in those circumstances was in Mr Hellyer's opinion unfair. He took me to the authorities with regard to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 and its analogues in Order 23 of the Rules of the Supreme Court and the statements of high authority to effect that it is an extreme force to adopt in any but the clearest of cases to deprive a party of the opportunity to have his, her, or its case adjudicated upon the merits at trial and that an over technical approach should not be adopted to matters where it is a question of summary dismissal.
10. In my view, to the extent that this application seeks a summary dismissal, which should simply put an end to the Applicants claim against the architect, it would be inappropriate to make such an order.
11. The material to be found, for instance, in the report of Mr Permewan indicates to me that there is a case to be made on behalf of these Applicants against the architect. Whether that case will ultimately be successful is a matter for trial. Certainly this is not a case where even if one were to accept as true, everything that is alleged on behalf of the owners, one would simply conclude that it provided no legal entitlement to relief against the architect.
12. I turn then to the more difficult question, namely whether if I were to leave the claim made by the owners standing, some action should be taken with regard to the points of claim themselves. I conceive that under Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 giving the Tribunal as it does power to regulate its own procedure, I am empowered to exercise the sort of powers that a court customarily adopts to deal with unsatisfactory pleadings. That is, power to strike out an unsatisfactory pleading subject to the grant of leave to the relevant party to replead. Had this application been bought at an earlier stage or even at this stage, had the quantum of the claim against the architect been above the level at which it finds itself, I would unquestionably have decided that these amended points of claim are in the case that they make against the architect radically flawed and defective. Also that in so far as they make those claims against the third and fifth respondents they should be struck out, subject to a right to replead.
13. Given, however, that this is a matter which is not quite on the eve of trial, but very close to the trial, and given the modest quantum of the claim against the third and fifth respondents, I believe a less rigorous approach is justified here. A purist would say that a defective pleading can never be remedied by the provision of further and better particulars and if the appropriately rigorous rules of pleading are to be employed here, that is the conclusion that I would have to reach. I have been told the tribunal is a place where a less rigorous approach to these matters is adopted; but if the tribunal goes to the trouble of ordering pleadings why then do rules of pleading not apply? As I have said, it is for that reason that had this application been made earlier it would have succeeded at least to the extent of strike out. However, it is now so close to trial, that I think that would be an inappropriate course for so modest a claim. The statement by Mr Premewan to which I've been taken adequately formulates the claim that these owners want to make against the architect and gives to my mind adequate notice of a claim of this magnitude. In those circumstances I believe it would be unjust and pointless for me to require repleading at this stage. Accordingly, whilst accepting as a matter of pure intellectual rigour, the attack upon the amended points of plan has succeeded, as a matter of discretion I do not make any order by way of dismissal or strike out.
14. I have given my reasons for dismissal in the application for summary determination in this matter made on behalf of the third and fifth respondents. I have, however, made orders with regard to those respondents compliance with directions as to the filing and service of expert reports by extending the time limits for those processes. In those circumstances, Mr Hellyer for the Applicants submits that his clients have had a victory and should receive the costs of today. He notes that the previous occasion upon which the matter was before the Tribunal yielded a very heavy costs penalty against his client: Now the boot is on the other foot; he says his clients should have similar advantages. The application for summary dismissal he says has failed and that is the event, which should dictate the award of costs.
15. In my view, the just order today is that the costs be the costs of the proceeding. True it is the application for summary dismissal has failed, but I concluded that the pleading, which was under attack, was radically defected and flawed. I further said that had the application been made at an earlier stage in the proceeding I would most certainly have acceded to it at least to the extent of striking out the offending pleading. Accordingly, the Applicants have, as it were, had a lucky escape here rather than a victory. In so far as they have achieved an order with regard to expert report from the third and fifth respondents, I note that this application was one bought by the third and fifth respondents and not by the Applicants at all.
Anker
Karolas Construction Group PL [2003] VCAT 1988
Application for summary dismissal dismissed; extensions given for filing expert reports and compliance with prior orders; costs ordered as the costs of the proceeding (see Orders).