Ely Projects Pty Ltd v Stockton & Anor [2025] QDC 151

ABB Power Generation Ltd v Chapple (2001) WAR 158.

Adani Mining v Pennings [2021] QSC 343.

Barclay Mowlem Construction Limited v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82.

Boys v Imperial Homes (Qld) Pty Ltd [2024] QCATA 35.

Dey v Victorian Railways Commissioners (1949) 78 CLR 62.

Equititrust Limited v Tucker and Others (No. 2) [2019] QSC 248.

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

Kimberley College Ltd v Thomson [2019] QSC 227.

Ooralea Developments Pty Ltd & Ors v Mackey Regional Council [2022] QSC 75.

Perera v Bold Properties (Qld) Pty Ltd [2023] QDC 99 (2023) 3 QDCR 132.

Mr. J.R. Hunter KC with Mr M.S. Trim for the applicants.

• [1] On 11 June 2024, the plaintiff commenced proceedings for breach of a contract concerning the construction of residential premises. It sought damages for breach of the contract or, alternatively, made a claim in quantum meruit_._
• [2] The defendants now apply to strike out the whole of the Amended Statement of Claim ("ASOC") filed 20 December 2024 on the primary basis that the "cost plus" contract at the centre of the plaintiff's allegations is void by virtue of non-compliance with statutory requirements, and hence the claim discloses no reasonable cause of action.
• [3] Alternatively, the defendants apply for the whole of the ASOC, or otherwise specific parts, to be struck out because of inconsistencies contained in the pleading and the form of the pleading is difficult to follow and hence has a tendency to prejudice or delay the fair trial of the proceeding.
• [4] Further in the alternative, the defendants apply for the striking out of paragraphs 3, 4, 5, 6, 7, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 and of Schedules 2, 3, 4 and 5 of the ASOC for want of pleading of material facts or particulars as required by the UCPR.
• [5] Further, or alternatively, to the relief sought in [4] immediately above, the defendants seek an order for further and better particulars related to those identified paragraphs and schedules of the ASOC.

Factual overview taken from the Amended Statement of Claim

• [6] There has been no Defence filed to the ASOC and, hence, no Reply. Accordingly, the focus of the application must be on the contents of the ASOC. It must be presumed that the factual allegations made by the plaintiff can be established.[1]
• [7] It is convenient to adopt, albeit in an adapted form, the applicant's summary of the ASOC for these purposes:
  1. The defendants are the owners of a residential dwelling at 11 Duke Street, Toowong;
  2. The plaintiff is a building company;
  3. On or about 22 August 2022 the plaintiff and the defendants entered into an agreement ("the contract");
  4. The contract was in writing and wholly comprised by some structural and architectural plans sent to the defendants on 23 May 2022 and a letter dated 5 August 2022;[2]
  5. The plaintiff performed "the construction work" at the property in the period from 20 February 2023 until 16 December 2023;
  6. The defendants gave directions to vary the scope of work to be completed under the Contract between 14 September 2022 and 26 September 2023, and the scope of the work was varied in accordance with those directions;
  7. Various invoices were issued, and seven payments were made totalling $882,909.95;
  8. There were meetings at the property and correspondence exchanged resulting in what the plaintiff asserts was a repudiation by the defendants;
  9. As a consequence the plaintiff elected to terminate the contract;
  10. The cost of the project was over $1 million and personnel from the plaintiff allegedly spent over 1,600 hours working on the project in the period from June 2022 until January 2024;
  11. The defendants have not paid the plaintiff monies owed by the defendants to the plaintiff under the contract, totalling $451,921.73;
  12. At the time of termination, the project was incomplete and a further $911,000.00 would have been required to complete it;
  13. Had the defendants not breached the contract, the plaintiff would have earned at least another $91,000 in profit;
  14. The plaintiff has therefore allegedly suffered loss and damage;
  15. Alternatively, the plaintiff is "entitled" to be paid for the reasonable value" of the work it completed - i.e. on a quantum meruit basis."
• [8] The one-page letter comprising part of the alleged breach of contract, as referred to in the ASOC, relevantly contained the following:

"Using the plans drawn to date but not yet completed we have compiled a budget amount of approximately $970,000.00.

This final figure will be subject to final selections and changes made throughout the construction process. It has been agreed by all parties the best way forward with this project during this highly volatile market is work on a cost plus basis to avoid overcharging to cover material and labour costs.

A figure of 10% margin added to all materials supplied for the project has been agreed upon. A rate of $85+GST per hour for all hours spent on the project by Matt Ely in all capacities will be billed each fortnight.

A rate of $65+GST per hour for all administration completed for the project will be billed each fortnight also.

The parties will meet a minimum of once per fortnight to discuss the project and budgets along the way.

A schedule of work has been developed showing the basic workflow for the project including the milestones for proposed scheduled payments by the bank."

• [9] It also provided for a reconciliation of amounts paid as against the costs incurred as calculated, and the refund or payment of further funds, as required.
• [10] The document tendered before me does not include the plans referred to, but it is common ground that while they form part of the asserted contract, nothing turns on them for present purposes. It appears that the "schedule of work" including the "proposed scheduled payments" was sent to the defendants by the plaintiff on 15 August 2022.[3] That document is not before me.

Should the whole ASOC be struck out for failing to disclose a reasonable cause of action?

• [11] In essence, the applicants assert that the contract is contrary to the requirements of s. 14 of Sched 1B of the Queensland Building and Construction Commission Act 1991 ("the QBCC Act") in that, as the contract price is not fixed,[4] it must contain a warning, prominently placed on the first page of the of the contract schedule, that the price may be changed under a provision of the contract along with a brief explanation of the effect of the provision allowing changes to the contract price.[5] The applicants then rely on s. 108D(2) of the QBCC Act, the effect of which is that a domestic building contract, is void to the extent to which it is contrary to the Act, or purports to annul, exclude or change a provision of the Act, subject to any contrary intention in the Act.[6] They argue that the reasons in Perera v Bold Properties (Qld) Pty Ltd[7] supports that proposition.
• [12] While recognising that s. 44 of Sched 1B provides that, "unless the contrary intention appears, a failure by a building contractor to comply with a requirement under this Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable", the applicants submit that the express terms of s. 108D(2) of the QBCC Act provide the contrary intention.
• [13] While the applicants appear to deny that the document is in fact a contract, it has been pleaded that it is one and I must assume that pleading can be made out. Accordingly, I proceed on the basis that it is a domestic building contract, as defined. Whether, given its terms, it in fact is a domestic building contract, as opposed to an agreement to contract in the future or some other record, is not a matter I need concern myself with for the purposes of the present application.
• [14] Given its terms,[8] I accept that it is not a fixed price contract. The plaintiff contends that s. 14(6) of Sched 1B does not apply, that in the alternative there has been compliance and in the further alternative that the failure to provide a warning statement does not result in the contract being void.
• [15] I accept the respondent's primary argument. The contract provides a method of calculation of the contract price, as defined, even though it will not be known with precision until at or after the completion of the contract. While I accept that the statute should be construed beneficially so as to give the fullest relief which the fair meaning of its language will allow,[9] I do not accept that, in the present circumstances, s. 14(6) of Sched 1B requires the inclusion of the warning and explanation. I read the phrase "a provision" in s. 14(6) of Sched 1B as referring to a provision other than the provision or provisions that allow for "cost plus" nature of the contract itself.
• [16] That interpretation does not detract from the beneficial nature of the legislation. The "cost plus" basis for calculation of the eventual cost price is plain on the face of the contract and, as it happens in the present circumstances, on the front page of the contract. There is no benefit to the defendants by requiring that a warning and explanation be provided on the same sheet of paper regarding that which is already plain. There is however benefit in requiring compliance with that requirement if there is another provision that alters the means by which the contract price will be changed, for example by changing the means by which it will be calculated if a stated event occurs. There is no provision in the present contract that alters the means by which the contract price is to be calculated; it remains as cost plus 10%.
• [17] Accordingly, s. 14(6) of Sched 1B does not require a warning statement and explanation to be found in the present contract.
• [18] The defendants also point to the fact that the plaintiff has not pleaded compliance with s. 18 of Sched 1B, which requires that the building contractor must provide the building owner with a copy of the consumer building guide before the contract is signed. While I doubt that compliance with that provision is a matter that must be pleaded in the ASOC as it is not an element of the action, it is not an issue I need decide. Section 108D cannot apply to non-compliance with s. 18 of Sched 1B as the guide is separate to the contract, even though it may be attached to it pursuant to s. 18(3) of Sched 1B. Further, s. 44 of Sched 1B providess that the contract is neither illegal, void nor unenforceable as a result of non-compliance. The defendant's application cannot be upheld on the basis of non-compliance with s. 18 of Sched 1B.
• [19] It therefore is unnecessary to consider the other bases on which the primary application is resisted.
• [20] If I am wrong about the above conclusions, I would not exercise the discretion to strike out the whole of the pleadings, or even those parts that do not attach to the claim in quantum meruit.
• [21] Although the defendants concede that, if their application succeeds, the plaintiff should be given liberty to re-plead, the concession provides a false hope. The essence of the action is a breach of contract which the defendants argue is "inevitably void".[10] Re-pleading is not going to change the essence of the cause of action, and the same issues will remain. Indeed, the defendants conceded in oral submissions that if the ASOC were repleaded in the same, or substantially the same terms it may amount to an abuse of process and would be liable to being permanently stayed as an abuse of process.[11]
• [22] In those circumstances, I accept that the present application should be approached on the basis of it being tantamount to an application for summary dismissal. The well understood need for caution in the exercise of the discretion is therefore a relevant feature.[12]
• [23] The meaning of the ASOC is apparent on its face and there is no apparent difficulty for the defendants to plead that the contract is void, illegal or unenforceable; i.e. the very argument that have elucidated on the present application.[13] The proceedings are at an early stage. The defendants have not filed a defence and hence the plaintiff has not had the opportunity to reply to any issues raised in the defence. This is a further reason to be cautious in effectively denying the plaintiff its day in Court arguing its case.[14] It is also relevant that, had the defendants in fact applied for summary judgment, leave would have been required under r. 135 of the UCPR.
• [24] Even if my construction of s. 14 of Sched 1B is erroneous, there are other arguable bases of resisting the defendants' complaints that I have not needed to elucidate in these reasons given my findings on the construction point. These arguments include a submission that Perera v Bold Properties (Qld) Pty Ltd, on which the defendants place reliance, was wrongly decided. While I do not need to reach a conclusion about that given the view I have otherwise reached, it appears to be an arguable point, and this Court is in any event not strictly bound by that decision. These factors all tend against granting the application.
• [25] For those reasons, this is not an appropriate case to exercise the discretion to strike out the whole of the ASOC on the basis that it fails to disclose a reasonable cause of action. Although not an application for summary judgement in form, it is effectively one in substance and the plaintiff should not be denied its day in Court, at least until the issues have been joined by the pleadings and the usual requirements for such a summary judgment application have been complied with.
• [26] For completeness, there must be at least some doubt about the defendants' submission as to the quantum meruit claim being based on a legitimate expectation that the defendant's would pay on the basis of the cost-plus terms of the contract if, by that, it is meant that payment would be in accordance with the terms of the contract.[15] However, that is unnecessary to determine as my refusal of the application to strike out the whole of the ASOC on the basis that it fails to disclose a reasonable cause of action means that the, in effect, submitted domino effect of striking it out on the quantum meruit claim does not arise, and the quantum meruit claim remains intact.

Are the pleadings in the ASOC unclear, inconsistent or ambiguous?

• [27] The defendants contend there are reasons why the nominated paragraphs and Schedules of the ASOC should be struck out and, when the effect of the individual orders for strike out are considered in toto, it is more efficient for the whole of the ASOC to be struck and re-pleaded. In essence they contend that there is a lack of clarity and there are ambiguities or inconsistencies in the pleadings that meaning that the pleadings have a tendency to prejudice or delay the fair trial of the proceeding.[16] The principles in Equititrust at [6]-[14] are specifically relied on. In each instance, and in the alternative, the defendants seek further and better particulars.
• [28] The assessment of these complaints necessarily involves impression and individual judgment. Modern case management techniques and the drafting rules and requirements in the UCPR mean that pleadings will be read in a sensible manner, and be subject to a less technical and critical assessment than was the case in earlier times. The object of the pleadings is to be borne in mind when considering objections to them. In particular they are to provide the skeleton of the case to be put, and do not usually need to descend into fine details of the particulars to support the allegations made. Objections to pleadings which are "pedantic and pettifogging in nature" [17] are to be avoided.

• [29] Paragraph 3 alleges the existence of a contract, that para. 4 pleads that it was contained in two specified documents and that para. 5 pleads the relevant terms of the contract.
• [30] The defendants complain that para. 5(d) asserts the incorporation into the contract of terms from a third specified document, a Schedule of payments. They complain that thee is therefore an inconsistency in the pleadings as to what comprises the contract. They further complain that it is unclear what part of the asserted contract provides the basis for the pleaded terms of the contract in para. 5, and contend that reference should be made in the pleading to the basis for or origin of the pleaded terms. They submit that they should not have to guess what the origin of the pleaded terms is.
• [31] As to the first aspect of the complaints, I do not accept that, read sensibly, the reference to the Schedule in para. 5(d) of the ASOC is inconsistent and confusing. The reference to a Schedule of basic workflow related to scheduled payments by the bank appears plainly on the single page letter dated 5 August 2022 which, consistent with para 4 of the ASOC, comprises part of the pleaded contract. It is, as far as I am aware, the only reference to a Schedule in the pleaded contract. In those circumstances, there can be no confusion as to what para. 5(d) is referring to. There is nothing before me to suggest that the defendants have been denied access to the document following their request under r. 222 of the UCPR dated 30 January 2025,[18] and so they are aware of its contents, with precision.
• [32] As to the second aspect of the complaint, a plaintiff is not always required to reference the source of the pleaded terms of the contract, especially where, as here, it is likely that the only document from which the terms can expressly arise is the single page letter, which does not have numbered paragraphs. I accept that in the present circumstances, it is unnecessary to directly cross-reference the terms of the contract for the defendants to understand the allegations made. There is no apparent difficulty in responding to those allegations, as currently pleaded.

• [33] By way of background, para. 6 of the ASOC alleges that "the plaintiff performed" certain construction work in the period 20 February 2023 to 16 December 2023. That claimed work is contained in a table that forms part of para. 6 that lists the date the work is said to have been "completed" and a brief summary of the nature of that work. Paragraph 17 pleads a claim for damages in a way that shows that the work pleaded in para. 6 was actually performed either by the plaintiff's employees, suppliers and subcontractors or the plaintiff's principal, Mr Ely.
• [34] Schedule 1 attached to the ASOC particularises the costs incurred by the plaintiff to suppliers and subcontractors, and references that by the invoices received. Schedule 2 lists the work alleged to have been performed by Mr Ely himself, and Schedule 4 lists the work alleged to have been performed by the plaintiff's employees. The schedules refer to a wider date range of work performed than para. 6 is limited to.
• [35] In essence, the defendants complain that cross-referencing reveals discrepancies as between the allegations in para. 6 and schedules 2 and 4 to an extent that means that the allegations are vague and inconsistent.
• [36] It is trite to observe that the plaintiff, as a corporate entity, can only perform work through individuals. If that were the only complaint, there would be no concern.
• [37] The plaintiff submits that the schedules may not correlate because para. 6 "states the date that each stage was completed, not the individual dates of each day that work was undertaken". It also submits that the schedules are not inconsistent with para. 6 as they "patently relate to different issues".
• [38] I cannot accept the plaintiff's responses. First, para. 6 initially alleges that "the plaintiff performed" construction work on the various dates, not that it was completed by the various dates. The table then refers to when those events were completed. If the plaintiff intended to convey that those terms mean the same thing, it has, in my view failed. The ordinary usage of the words conveys different meanings and can result in ambiguities and inconsistencies when compared with the Schedules. The defendants are entitled to understand what work was done, when it was done and how the damages are calculated without guessing.
• [39] Second, although the Schedules cover a wider date range, it is not clear to me that they relate to different issues, patently or otherwise. Leaving aside the issue of the date ranges, they in fact appear to be dealing with the one and the same issue, namely proof of work undertaken.
• [40] The inability to properly cross-reference and check the allegations in para. 6 as to the work performed by the plaintiff with the schedules of work completed results in a relevant unfairness that justifies the striking out of para. 6.
• [41] While I do not perceive of a need to strike out para. 17 or Schedules 1, 2 or 4, the plaintiff has leave, if it is required, under r. 377 of the UCPR to amend the ASOC in any respect to provide clarity to the pleadings in paras. 6 and 17 and Schedules 1, 3 and 4.

• [42] Paragraph 7 alleges that the defendants gave directions for certain variations to the scope of work under the contract, and that the variations were complied with (presumably unless they were part of the uncompleted work at the time of the termination of the contract). It then sets out a table detailing the dates of the directions, a summary of the variations and particulars of the emails said to evidence the variations.
• [43] The defendants assert that the pleadings do not provide a clear and fair articulation of the original work and how it has been varied, resulting in a level of ambiguity and unfairness that requires that para. 7 be struck out.
• [44] I do not agree. The scope of the original work is to be ascertained from the contract itself. Paragraph 7 provides the framework for the alleged variations, importantly including by reference to correspondence which can be considered in understanding the scope of the variations. The pleading is sufficient to allow the defendants to understand the nature of the allegations against them. I note that copies of all documents referred to in paras. 4-7 inclusive of the ASOC were requested under rule 222 of the UCPR on 30 January 2025.[19] They can be presumed to be aware of the allegations' details.
• [45] If they maintain that the pleading is vague and unfair, that can be pursued by being pleaded as the basis for a non-admission in its Defence.

• [46] Paragraph 16 is a general pleading concerning calculation of damages. The defendants contend that by its wording, the problems raised in paras. 6, 7 and 17 intrude into understanding its meaning. It is further contended that non-compliance with ss. 40 and 41 of Sched 1B of the QBCC Act means that the term of the contract pleaded at para. 5(b) as to payment of work done on any variations is void and unenforceable. This, it is argued, thereby affects the entire contract and the paragraph should be struck out as creating ambiguity.
• [47] I do not agree. The defendants anchor this submission on the proposition that non-compliance with ss. 40 and 41 of Sched 1B of the QBCC Act. But that overlooks the express provisions of s. 44 of Sched 1B, which precludes a finding that the contract is illegal void or unenforceable for failure to comply with a requirement of the Act. My finding is consistent with the observations in Boys v Imperial Homes (Qld) Pty Ltd.[20]
• [48] Further, the pleading at para. 16 is at a general level. It is not vague or ambiguous simply because there may be some doubt about the final calculation of the variations' costs, particularly given the cost plus nature of the contract. My findings concerning para. 6 do not affect the current pleading, given its generality.

• [49] These two paragraphs are more specifically focused on the precise calculation of the actual damages. Paragraph 17 specifically refers to Schedule 2 of the ASOC as detailing the hours worked on the construction project by Mr Ely, and Schedule 3 as detailing the hours administratively undertaken by Mrs Warren. The defendants are critical of the level of detail provided as to how the hours were occupied, making, it is asserted, the pleading too general, confusing and unclear.
• [50] The criticism is not warranted. It can be accepted that the pleadings in the Schedules are generalised in many instances. However, the function of the pleading has been satisfied by what is produced. Greater detail can be established through the discovery processes, at an appropriate time, and if that leaves issue wanting, a request can then be made for further and better particulars.

• [51] These paragraphs allege loss of profit, based on the expected completion costs of work not completed under the contract, as varied. Schedule 5 lists, in a summary fashion, the works the plaintiff alleges were not completed as at 18 January 2024. Its completeness is subject to the express caveat at para. 5(b) which pleads that "further particulars of which will be provided following site inspection by the plaintiff and receipt of disclosure in the proceeding".
• [52] As part of the exchange of correspondence under rr. 444 and 445 of the UCPR, the plaintiff, by email of 21 December 2023, sought details of any works undertaken since 15 January 2024 and access to inspect the property. Both were sought for the purpose of assessing the completion costs.[21] There is no suggestion that either request has been fulfilled.
• [53] The defendants assert that the details in Schedule 5 are imprecise in a number of respects and that aspects of the means used to estimate those costs lack the necessary transparency. It is submitted that the defendants are thereby denied the ability to respond to the allegations.
• [54] I accept the plaintiff's submission that the matters pleaded in Schedule 5 are the best particulars that can be provided in the circumstances. It has been accepted that there will be, on occasion, instances where full particulars cannot be provided until after disclosure.[22] The plaintiff cannot be expected to plead that which it is incapable of precisely quantifying, for reasons that include a lack of access to the site caused by the defendants and a lack of disclosure as to other works to be allowed for when that inspection occurs. It would be an odd result to strike out the plaintiff's pleading where the imprecision leading to the strike out was caused, or at least contributed to, by the defendants themselves. The defendants' submissions cannot be accepted.

• [55] These paragraphs plead the quantum meruit claim. They refer back to earlier paragraphs the subject of this application, namely paras. 4 to 9 inclusive, and para. 6 particularly. I have already concluded that para. 6 should be struck out with liberty to re-plead, and made no orders concerning the other of those paragraphs. Those latter paragraphs therefore apply unchanged to the quantum meruit claim.
• [56] On the assumption that para. 6 will be re-pleaded, it will also apply to the quantum meruit claim, in its amended form. The issue that caused me to strike it out does not require that these paragraphs also be struck out. Once re-pleaded, it will facilitate a better understanding of the quantum of this aspect of the claim.
• [57] The defendants also complain that para. 23(b) pleads that the work done was "for the benefit of the defendants", without explaining what that benefit is.
• [58] As the plaintiff submits, it can readily be assumed that where one party seeks the services of another, the first party can be assumed to be seeking the benefit of those services. Were the plaintiff to be alleging some different form of benefit, the plaintiff would be required to specifically plead that deviation from the expected meaning, and it has not.
• [59] In any event, it is a matter that should be clarified, if it really requires clarification, through a request for better particulars. Nothing has been put before me to establish that an earlier request for better particulars has been refused or not complied with, and it would be premature for me to make any such order in those circumstances.

• [60] The only paragraph of the ASOC that is to be struck out is para. 6, for the reasons outlined above. The plaintiff will be given leave to re-plead within 28 days.
• [61] Given the limited nature of the interference with the ASOC, it is not an appropriate instance to strike out the whole of the ASOC based only on the deficiencies in para. 6. Put another way, contrary to the submissions of the defendants, the issues with the ASOC are neither deep nor wide.[23]
• [62] In no instance has the appropriateness of an order for further and better particulars been established.

• [63] As foreshadowed in the course of oral submissions, I will hear the parties as to costs.

[1] Equititrust Limited v Tucker and Others (No. 2) [2019] QSC 248, [10] ("Equititrust")

[2] Relevant parts of that letter are found at paragraph 8 herein.

[4] Section 14(5) of Sched 1B of the QBCC Act.

[5] Sections 14(6) and (7) of Shed 1B of the QBCC Act.

[6] Sections 108D(3) and (5) of the QBCC Act.

[7] [2023] QDC 99 (2023) 3 QDCR 132.

[9] Perera v Bold Properties (Qld) Pty Ltd, supra at [43].

[10] Defendants' written submissions at paragraph 3.

[12] Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129.

[15] Paragraph 31 of the defendants' submissions. cf ABB Power Generation Ltd v Chapple (2001) WAR 158, [21].

[17] Barclay Mowlem Construction Limited v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82, [9] cited in Equititrust, supra at [17].

[18] Affidavit of Stephen Clinton Burton sworn 9 April 2025, SB-02.

[19] Affidavit of Stephen Clinton Burton sworn 9 April 2025, SB-02.

[20] [2024] QCATA 35, [49]-[50].

[21] Affidavit of Antony Eaton sworn 29 May 2025 at AE-02.

[22] Kimberley College Ltd v Thomson [2019] QSC 227, [18]-[19]; Adani Mining v Pennings [2021] QSC 343, [26].

[23] cf Ooralea Developments Pty Ltd & Ors v Mackey Regional Council [2022] QSC 75, [70].