Build Crew Pty Ltd v Edgewood Builders Pty Ltd [2025] QMC 30

1. Pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), paragraphs 2, 3, 4, 5, 6, 7, 8, 9, and 10 of the defence to be struck out.

2. The defendant pay the plaintiff's costs of and incidental to this application on an indemnity basis.

- Affidavit of Ms Emily Flac sworn 4 July 2025 and filed by leave 18 July 2025

[7] Conveniently, both the plaintiff's solicitor and the defendant's counsel have provided written outlines of submissions.

[8] The plaintiff applies to effectively strike out the entirety of the defence.

[9] The only paragraph in the defence not subject to challenge on the strike out application is paragraph 1, where the defendant admits the plaintiff was a company incorporated according to law and capable of suing.

[10] The application is brought pursuant to r 171 of the UCPR.

[11] Rule 171 UCPR provides

1. This rule applies if a pleading or part of a pleading -**

1. Discloses no reasonable cause of action or defence; or
2. Has a tendency to prejudice or delay a fair trial of the proceeding; or

1. Is frivolous or vexatious; or
2. Is otherwise an abuse of the process of the court

1. The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis

**[12] The plaintiff contends that the defence is susceptible to strike out upon the basis that it

- Alleges the terms of the agreement were different to those pleaded but does not say with precision what those agreed terms were.

- Alleges the plaintiff was in breach of some terms of the agreement but does not allege and particularise what that term is or how it has been breached.

- Attempts to raise a set-off but that is not pleaded or particularised.

- The particulars of the defence are vague and are liable to cause the plaintiff surprise at trial.

[13] The defendant responds that the defence and subsequent further and better particulars adequately plead the defendant's case and ought not be struck out.

STRIKE OUT APPLICATION - THE RELEVANT LEGAL PRINCIPLES

[14] In Royalene Pty Ltd v The Registrar of Titles and Mistilis [2007] QSC 059 the court said in respect of r 171 at paragraph 6

The focus of argument was principally on UCPR 171(1)(a) which is concerned with pleadings that disclose no reasonable cause of action or defence. UCPR 171(3) provides that on the hearing of an application to strike out part of a pleading, the court is not limited to receiving evidence about the pleading. Even to the extent that that may involve a relaxation of the approach that applied under the former rules, there is still good reason to regard the applicable principle to be that the discretion to strike out should only be exercised where the defence raised is obviously untenable. Conversely it should not be exercised except in clear cases. (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; [1964] 112 CLR 125, 130; Dey v Victorian Railways Commissioners [1949] HCA 1; [1949] 78 CLR 62, 84 and 91). That is especially so where the case is pleaded as a circumstantial one and the inference to be drawn from evidence critical to determining liability is not common ground and the evidence is untested.

[15] Similarly, the Court of Appeal decision of Robert Bax and Associates v Cavenham Pty Ltd [2011] QCA53 when the Court said in respect of the rule at paragraph 16

Rule 171 closely resembles the language of former O 22 r 32 Rules of the Supreme Court 1991 (Qld) which enabled a judge to strike out or amend any matter in the pleading which tended 'to prejudice, embarrass, or delay, the fair trial of the action.' The word 'embarrass' has not been retained. Nonetheless any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than 'embarrass' the opposite party.

[16] Those considerations of r 171 follow the principles enunciated in the decision in Butler v Crowley and Galvin Solicitors [1999] QSC 6 where the Honourable Justice Muir said commencing at paragraph 4

In my view, it would be unjust to permit a trial of action on the basis of the allegations in the statement of claim. The defendant could not hope to identify with any reasonable precision the case it is called on the meet. It would also be put in the position of having to prepare to meet innumerable allegations which are irrelevant to allegations of breach of duty and loss of damage... the duration of any trial of the action and, in consequence, its cost, would be unnecessarily increased and the prospects of due determination of relevant issues decreased. The defendant would be prejudiced by being unable to sensibly formulate an offer of settlement...

[17] The plaintiff identifies two bases upon which it attacks the defendant's pleadings, namely

- It argues that all paragraphs in the defence do not disclose a reasonable defence to the action because they fail to plead all necessary material facts.

- Those paragraphs in the pleadings are similarly vague.

[18] In considering the defendant's pleading, the requirements of a defence provided by r 149(1) UCPR must be considered.

[19] Rule 149(1) UCPR requires that each pleading must**

1. Be as brief as the nature of the case permits; and
2. Contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and

1. State specifically any matter that if not stated specifically may take another party by surprise; and

1. Subject to r 156, state specifically any relief the party claims; and
2. If a defence under an Act is relied on - identify the specific provision under the Act.

**[20] 'Material facts' in the context of r 149 have been described as '... necessary for the purpose of formulating a complete cause of action.'[1]

[21] The correct approach to pleading material facts was summarised by Jackson J in Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211 where His Honour said

If a plaintiff proves all the material facts, it must succeed on the cause of action. Thus the case is reduced to its factual skeleton in law. By adhering to the concept of a material fact in the practice of pleadings, the courts serve the purposes of efficiency and cost-saving which inform the procedural rules. The only issues joined are upon material facts. The only evidence led proves or disproves the material facts. The decision in the case is not affected by the irrelevant and the decision maker is not distracted from the material facts.

Informed by those considerations, the search in paragraphs [1] to [24] for the precise material facts that constitute the specific breaches of the covenant or contract is objectionable pleading. In my view, even if it does not offend the requirements that the pleading "must... be as brief as the nature of the case permits [and] not [contain] the evidence by which the facts are to be proved." For brevity, I will call such a problem the 'narrative defect'...

The narrative defect obscures the articulation of exactly what constitutes the relevant breaches of covenant or contract.

[22] That approach was endorsed by Freeburn J in the decision of Earthtec Pty Ltd v Livingstone Shire Council [2023] QSC 22 where His Honour observed

A statement of claim serves to identify the material facts that support the claims made in the claim...

The requirements of brevity, and the requirement to state the material facts rather than the evidence, serve as an important purpose. The objective is for the case to be reduced to its 'factual skeleton.' Thus, if a statement of claim pleads material that does not comprise material facts, the defendant is required to respond with the result that unnecessary fronts are opened in the battle between litigants.

The requirement in UCPR 149(1)(c), that a party identify any matter that may take their opponent by surprise, may sometimes justify pleadings that go beyond the material facts that are strictly necessary for the claim or the ground of defence. In that sense the 'no surprise' requirement in UCPR 149(1)(c) operates as an exception to the requirement in UCPR 149(1)(b) that the pleading contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved.

The 'no surprise' exception does not require a pleader to guarantee that the opposing party will encounter nothing unexpected at the trial. Trials are full of the unexpected. The 'no surprise' exception requires that a pleading contain all that is reasonably and fairly necessary to ensure that the opposing party is not met at the trial by an unexpected turn in the case which that party, acting in good faith and reasonably, is unable to meet because of a natural failure to prepare to meet it having regard to the content of the pleading. Whether a pleading does or does not comply with this requirement is a matter for the assessment and judgment of the judge who must decide the question ahead of the trial, like all pre-trial rulings.

The 'no surprise' exception does not give a pleader an open licence to plead immaterial facts or to plead evidence. The intention is merely to provide for exceptional cases where there is a genuine apprehension of surprise. To give the 'no surprise' exception a wider function would undermine the requirement of UCPR 149(1)(b) to plead all the material facts on which the party relies but not the evidence by which the facts are to be proved.

The effect of UCPR 149(1)(b) is to confine the pleading to material facts and to exclude matters of evidence from the pleading. Where there is no reasonable prospect of surprise only the material facts ought to be pleaded. That is because pleadings which trespass into evidence endanger proper definition of the issues and risks the creation of false issues. As it happens, in modern civil litigation the element of surprise is largely diminished by the common practice of having the parties, usually in advance of the trial, file and serve affidavits or statements or even summaries of their evidence-in-chief.

[24] In considering the plaintiff's contentions it is necessary to keep the distinction between material facts and particulars firmly in mind.

[25] Rule 157 obliges a party to include in a pleading particulars necessary to**

1. Define the issues for, and prevent surprise at, the trial; and
2. Enable the opposite party to plead; and

1. Support a matter specifically pleaded under rule 150.

**[26] Rule 160 provides the way to give particulars.

1. If rules 157 to 159 require particulars to be given, the particulars must be stated in the pleading or, if that is inconvenient, in a separate document mentioned in, and filed and served with, the pleading.

2. Further particulars may be given by correspondence.

3. A party giving further particulars must file a copy of the particulars.

[28] The defendant has given further particulars of the defence, effectively in correspondence by filing and serving further and better particulars on 7 May 2024.

[29] It is the defence and further and better particulars (forming part of it) which is the pleading subject to challenge and required to be considered.

[30] In Bruce v Odhams Press Ltd[2] Scott LJ observed

The use of particulars is intended to meet and further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.

[31] The High Court endorsed those principles in Banque Commerciale SA En Liquidation v Akhil Holdings Ltd[3] where the court said

The function of pleadings is to state with sufficient clarity the case that must be met... in this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have an opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

[32] In the context of an application to strike out paragraphs in a statement of claim, White J in Thiess Pty Ltd v FFE Minerals Australia Pty Ltd[4] articulated the purpose of pleadings in these terms

More generally the purpose of pleadings is to inform the opposite party of the case it has to meet and permit, in a responsive pleading, the issues to be narrowed.[5]

[33] In respect to a similar challenge to a pleading as 'vague' Her Honour observed that while r 171 UCPR did not employ the terminology of the previous Supreme Court rule, which enabled a judge to strike out or order amendment to a pleading which tendered to - prejudice, embarrass, or delay the fair trial of an action that nonetheless a pleading may be still struck out if it is 'unintelligible, ambiguous, vague, or too general, so as to embarrass the opposite party who does not know what is alleged against him.'[6]

[34] The plaintiff's pleaded claim in the statement of claim is in simple form and effectively pleads that**

1. The parties entered into written agreements for the provision of carpentry services.
2. The terms included that the plaintiff would provide carpentry services to the defendant in accordance with work orders.

1. The terms included the defendant would make payment to the plaintiff for the carpentry services.

1. The plaintiff issued three tax invoices to the defendant for a total of $12,733.96 being the value of the carpentry services.

1. There were agreements between the parties for provision by the plaintiff of carpentry services.
2. The terms of the agreements, the particulars of which in the further and better particulars provide with clarity, and details of the conversations giving rise to those terms in the agreement, included that the works would be carried out by the plaintiff with due care and skill and to a specific standard and in a specific timeframe and to completion.

1. The further and better particulars also plead with precision that the carpentry services provided by the plaintiff including the framing were defective in that they were not constructed in accordance with BCA Australian National Code, were not in accordance with architectural and engineering plans for the works, and were not acceptable and certified by the private certifiers.

**[36] The defence (including the further and better particulars) in compliance with r 149 contain statements of the material facts upon which the defendant relies.

[37] The plaintiff's complaints that the defence does not plead the relevant material facts and is too vague are plainly not made out.

[38] The plaintiff's complaint that the defence attempts to raise a set-off are without merit. The defence does not plead a set-off, the defendant's counsel in supplementary oral submissions confirmed that the defendant did not and was not intending to plead a set-off.

[39] The plaintiff's application to strike out the identified paragraphs of the defence must fail.

[40] The defendant also sought to raise the 'simplified procedures' pursuant to ch 13 pt 9 UCPR.

[41] Chapter 13 pt 9 provides that simplified procedures apply to a minor claim.[7] A minor claim is defined as a claim for an amount of not more than $25,000.[8]

[42] The simplified procedures provide that, amongst other things -**

1. The court is not bound by laws of evidence or procedure applying to a proceeding in the court.

**2) May inform itself of the facts it considers appropriate

4. Must record the reasons for its decision[9]

[43] The defendant therefore contends that the pleadings requirements contained in ch 6 pt 2 - 3 do not apply to this claim.

[44] The defendant could not cite any authority for that proposition.

[45] The plaintiff's application for strike-out ,having been determined to fail on first principles, further consideration of the application of the simplified procedures to the pleadings requirements of the UCPR is unnecessary.

[46] The plaintiff has failed to satisfy the court that the defence (and further and better particulars) disclose no reasonable defence, fail to plead material facts, or are vague and the application ought be dismissed.

2. That in the event parties cannot agree costs, they are to file and serve written submissions (to be no more than 3 typed A4 pages) as follows**

1. The defendant within 14 days
2. The plaintiff within 28 days

[1] Bruce v Oldham Press Ltd [1936] 1 KB 697.

[2] Bruce v Odhams Press Ltd [1936] 1 KB 697.

[3] Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] 169 CLR 279.

[4] Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 2009.

[7] Uniform Civil Procedure Rules 1999 (Qld) r 514.