1. By 17 December 2004 the Applicant shall file and serve further further Amended Points of Claim which shall fully particularise- the claim or claims made; the basis for making such claim or claims; any alleged loss and damage; the method of calculation of such loss and damage; and the relief or remedy sought.

2. The date by which the Respondent may make any application for joinder is extended to 15 January 2005

3. The proceeding is referred to a further directions hearing before Deputy President Aird on 3 February 2005 at 2.15 pm - allow 2 hours - at which time any application for joinder will be considered and directions made for the further conduct of this proceeding

4. Costs of this application reserved - liberty to apply.

1. This is an application by the Respondent that the proceeding be dismissed pursuant to s75 of the Victorian Civil and Administrative Tribunal Act 1998 or otherwise stayed pending the provision by the Applicant of proper particulars of its claim. There has been a long history of the Respondent seeking particulars of the Applicants' claim arising from the Amended Points of Claim filed on 21 May 2004 and the further Amended Points of Claim filed on 6 August 2004.

Background

2. As I understand the Applicant's claim, it engaged the Respondent as a building surveyor in relation to the proposed construction of a two storey dwelling in Ocean Grove. The Respondent issued a building permit for the construction of a house and garage with an overall height of 8.7 metres in alleged disregard of the requirements of the Planning Scheme of the City of Greater Geelong that a planning permit was required where the overall height was greater than 7.5 metres. At some time, apparently after construction commenced (although this is not pleaded) the Applicant became aware that a planning permit was required. Its initial application was refused but subsequently granted once the house and garage were redesigned so that the overall height did not exceed 7.5 metres.

3. The Applicant alleges it relied on the Respondent's expertise, that the Respondent has engaged in misleading and deceptive conduct, and that the building permit was issued in breach of s11 of the Building Act 1993, and seeks to recover the additional costs incurred after it became apparent that a planning permit was required together with damages for loss of use of the proceeds of sale.

4. The Respondent essentially denies the allegations in his Points of Defence and alleges that he relied on a representation by the builder (who is not presently a party to this proceeding) that a planning permit was not required.

5. The Respondent has made repeated requests for particulars of the Applicant's claim both formally by written request and on at least two occasions at previous directions hearings when attempts were made to deal with the Respondent's concerns informally to no avail.

6. On 1 July 2004 the Respondent filed and served a Request for Further and Better Particulars seeking the particulars of paragraph 18 of the Applicant's Amended Points of Claim which purports to set out particulars of the Applicant's loss and includes the following:

Loss of use of the proceeds of sale of the property from 31 October 2002 to 23 October 2003: $400,000 unable to be used in further developments returning 0.233490382% per day - $333,424.16

(a) Please state the usual particulars and calculations of the loss of the proceeds of sale of $400,000.

(b) Please state the usual particulars and usual details of the further developments.

(c) Please state the usual particulars and calculations of $333,424.26.

7. On 6 July 2004 the Tribunal ordered that the Respondent provide the requested particulars by 20 July 2004. The Applicant filed the following answers (omitting the formal parts):

Under cover of an objection that a request cannot be made of particulars of particulars, it is not alleged that the proceeds of sale were lost. The allegation is that the proceeds of sale would, absent the actions of the Respondent alleged in the Points of Claim, have been received by the Applicant on 31 October 2002, but by reasons of the actions of the Respondent alleged in the Points of Claim, were not received until 23 October 2003; and that the Applicant lost the use of the proceeds for the said period, which would otherwise have been used in further developments.

Under cover of an objection that a request cannot be made of particulars of particulars, it is not alleged that there were further developments carried into effect. The allegation is that no further developments were able to be carried into effect.

Under cover of an objection that a request cannot be made of particulars of particulars:

0.233490382% is the percentage return to the Applicant per diem on funds employed by the Applicant in the carrying out of developments.

8. The proceeding came before me for further directions on 3 August 2004 at which time the Respondent's application to join the builder was dismissed there being insufficient material to support the application and the allegations made in the proposed Points of Claim. The Respondent was given leave to make a further application for joinder until 10 September, and was also given leave to file and serve a further request for particulars until 31 August 2004.

9. The Respondent was particularly concerned to understand the contractual arrangement between the Applicant and the builder and/or the draftsman, particularly as paragraph 6 of the Amended Points of Claim provides:

The property was to be constructed under a major domestic building contract by Mr K Markham on behalf of the Applicant.

10. Contracts between the Applicant and the builder had not been discovered, Mr Bingham advising that there were no written contracts. However, as it is clear that the project has been built an order was made requiring the Applicant to 'make further discovery of all documents evidencing any contract arrangement between it and the builder and/or the draftsman'. Further discovery was to be completed by 24 August 2004. The Applicant was also given leave to file and serve further Amended Points of Claim and these were filed on 5 August 2004.

11. On 20 August 2004 the solicitors for the Applicant wrote to the Respondent's solicitors advising, omitting the formal parts:

We refer to the orders made by Deputy President C Aird on 3rd August 2004 and advise that there are no other documents of the class referred to in Order 4 other than those discovered in the List of Documents previously provided.

12. The solicitors for the Respondent wrote to the Tribunal on the same day requesting an extension of time in which to make the application for joinder enclosing an affidavit of Ryan Lee, solicitor for the Respondent, in support. They also enclosed the Respondent's further request for particulars dated 1 September 2004. Answers to the request were filed on 14 September 2004 and a further directions hearing held on 16 September 2004, when the Respondent was granted an extension of time in which to make any application for joinder to 14 October 2004. The proceeding was referred to a further directions hearing on 5 November 2004 in the expectation that the parties would be able to resolve their differences about the adequacy of the Applicant's particulars informally.

13. On 28 October 2004, Mr Lee, filed an affidavit setting out concerns with the further particulars provided by the Applicant on 14 September 2004. In the final paragraph of that affidavit Mr Lee states that:

The Respondent seeks an Order dismissing the Application under s75 of the Act; or in the alternative, a stay of the proceedings pending provision by the Applicant of proper particulars of its claim; together with an order for costs of and incidental to this application under s79 and the proceedings itself, should they be dismissed.

The requests for particulars

14. The primary purpose of a request for particulars is to enable the requesting party to better understand the case they are required to answer. In preparing Points of Claim it is incumbent upon an Applicant to include the material facts upon which it seeks to rely, rather than making bald assertions in the absence of any supporting material facts. I accept that in answering a request for particulars a party is not obliged to set out the evidence but it is required to provide the material facts on which its claim is based. It cannot merely proffer a pleading without proper particulars to support each and every allegation.

15. In relation to the following requests for particulars (from the Request dated 1 September 2004) and the answers of 14 September 2004 I make the following observations:

16. Request 7

Did you make any payments under the building contract? If so, state the date and amount of each such payment, and identify the claim or invoice received by you from the builder for which the payment was made.

This is not a proper request for further and better particulars.

I am not persuaded that this is not a proper request for particulars, especially in circumstances where I have previously ordered discovery of 'documents evidencing the contract between the Applicant and the builder and/or draftsman'. Although the Applicant's solicitors have indicated there are no such documents this request seeks particulars of any invoice or claim relating to any payments that have been made under the building contract, which would, of course, evidence the contract.

17. Request 8

of each conversation constituting the oral building contract, or any term thereof which is alleged by you to be oral.

(d) The substance was that Les Markham was engaged by the Plaintiff to construct the construction on the property.

The answers to a) b) and c) appear complete. However, the answer to d) appears to answer only part of the request no details of the proposed construction, the price or similar material facts are provided. Further '...or any term therefore...' is a request for all such material facts which have not been supplied in this answer, and which the Respondent is entitled to know.

18. Request 13

Look at paragraph 18 thereof, and as to the sum claimed of $23,083.77 state:

a) the amount or proportion of the same which is claimed as a "holding cost";

b) the amount or proportion of the same which is claimed as "interest";

c) the amount or proportion of the same which is claimed as "overhead" costs.

The answer to this request is seemingly inconsistent with the pleading. I share the Respondent's uncertainty as to why holding costs, interest and overheads would all be claimed as separate heads of damage when they are seemingly one and the same.

19. Requests 14, 15 and 16

As to the holding costs claimed against the Respondent, state how the same are said to be ascertained or derived and to set out all the relevant calculations used by you to determine the same together with the usual particulars of any document, invoice, account, statement, journal or the like from which the figures used are obtained.

Interest charged and government taxes incurred between 31 October 2002 and 23 October 2003 in respect of the following finance facilities:

National FlexiPlus Mortgage Choice Package 526188861: $6,782.50.

National FlexiPlus Mortgage Choice Package 541915916: $7,107.15.

The relevant account summaries are in writing and have been discovered.

The same as Request 14 except that, "interest" is substituted for "holding costs".

The same as Request 14 except that "overhead" has been substituted for "holding costs".

20. The answer only provides part of the relevant information. It provides account numbers of various finance facilities but fails to provide particulars as to the amount of each finance facility, the term of each, the applicable interest rate/s and whether they are, for instance, simple or compound interest rates, the respective amounts attributable to interest and government taxes. These are all examples of material facts without which the Respondent is unable to properly understand and assess the claim against him.

21. Request 18

Prior to September 2002, did you undertake any other profit making undertaking or scheme by which you derived income or capital gain and by reason whereof you have ascertain or asserted the return of 0.233490382% alleged in paragraph 18? If so, state:

a) the nature of each such profit making undertaking or scheme;

e) the basis upon which a profit is said to have been obtained;

Yes, The Applicant or Steven Hodgson undertook the following transactions:

The purchase price of the land and incidental costs totalled $27,008.77 at settlement date of 7 November 2001. The sale price of the land net of sale costs was $33,048.58 resulting in a profit of $6,039.81 at settlement date of 17 February 2002, resulting in a percentage return per annum on capital of 22.4%.

Similar information is provided for each of the following properties:

Whilst this purports to provide particulars of other developments undertaken by the Applicant, the answer refers to other projects undertaken by the Applicant or Steven Hodgson not to those of the Applicant alone. It is the Applicant's alleged losses that are the subject of this proceeding and it is not possible from these answers for the Respondent to determine which projects were carried out by the Applicant or how those carried out by Steven Hodgson are relevant. Further, a mere stating of the purchase and sale price does not seem to me to fully set out the material facts to support its claim for loss of use of the proceeds of sale. From the answer to Requests 14, 15 and 16 it is apparent that this project was subject to finance facilities - whether or not the other projects set out in these answers were also subject to finance are material facts.

22. Request 19

Look at paragraph 18 thereof, and as to the calculation of a return of 0.233490382% state how the same are said to be ascertained or derived and to set out all the relevant calculations used by you to determine the same together with the usual particulars of any document, invoice, account, statement, journal or the like from which the figures used are obtained.

The average return on capital for the transactions referred to in paragraph 18 above was 0.233490382% per day.

0.2333490382% is the percentage return to the Applicant per diem on funds employed by the Applicant in the carrying out of developments.

I accept Mr Lapirow's submission that this answer is not adequate and lacks clarity. In my view it is incumbent upon the Applicant to provide the basis and method of calculation.

The obligation to provide proper particulars

23. The Respondent is entitled to know the case it has to answer. Deputy President Cremean (as he then was) clearly set out a party's obligations in this regard in West Homes (Australia) Pty Ltd v Crebar Pty Ltd [2001] VCAT 46 at paragraph 11

"that a party [has] a .... duty to make its case known to the other side. It is basic that the Tribunal should require that this duty be observed. Otherwise, natural justice will be denied. Often, though, it is quite possible for a party to make its case known sufficiently without having to resort to fine legalese. Indeed, fine legalese can often obscure. Moreover, the Tribunal is not bound to proceed with all technically and undue formality. ... Ideally, Points of Claim .... should normally be able to be understood by the average person."

24. Similarly, in Barbon v West Homes Australia Pty Ltd [2001] VSC 405 Ashley J held that whilst pleading summonses should be discouraged a party has a right to know the case it has to answer (at paragraph 16):

I would not want it thought for a moment, because the Tribunal is not a court of pleading, and because the Act encourages a degree of informality in proceedings, that Rafferty's Rules should prevail. They should not. Any party, perhaps particularly a party facing a long, drawn-out hearing in the Tribunal - and I note in this case an estimate that the Tribunal hearing would extend for some nine weeks - is well entitled to know what case it must meet before the hearing commences. That is not to say that the case must be outlined with exquisite particularity. It is not to say that a defendant is entitled to evidence rather than particularisation. None the less a defendant is entitled to expect that a claim will be laid out with a degree of specificity such that, if it is obvious that the claimant seeks to pursue a claim which is untenable, that can be the subject of an application before trial; such that, moreover, if adequate particularisation is not provided, the matter will be clear to the Tribunal on application by an aggrieved party.

25. Where, as here, the Applicant's claim cannot be clearly understood from the Points of Claim, a Request for Particulars is appropriate. The Applicant is under an obligation to ensure that all material facts have been provided to the Respondent and if these are lacking from the particulars to properly include them in any answer. In this case, it is clear to me that the Applicant has failed to discharge this obligation and, in fact, has been evasive. Its whole claim is predicated on an assertion that the Respondent is responsible for its alleged loss, although it is acknowledged that other parties were involved in and responsible for the construction of the premises. I am therefore satisfied that the Applicant is obliged to provide full particulars of the Applicant's contract with the builder. Further, where loss of use of the proceeds of sale is claimed in circumstances where the house to be sold was to be constructed under a building contract, whether in writing or oral as the case here, material to the Applicant's claim and the Respondent's knowledge of the case it has to answer are facts such as: the commencement date, the construction period, the due date for completion and the actual completion date under that contract.

26. The Respondent is also entitled to know the nett sale proceeds of the project. Although the Applicant claims this is not relevant because the claim is for loss of use of the proceeds of sale, as it is apparent it is subject to certain finance facilities whether they were required to be satisfied upon the sale of the project is material. Notwithstanding Mr Bingham's submission that the whole of the proceeds of sale would have been available for the Applicant's use if repayment of any or all of the finance facilities was due on sale of the property it might well be that the amount of any sale proceeds available for the Applicant's use would be reduced.

27. I am concerned by the Applicant's apparent unwillingness to clarify and properly particularise its claim. The matters set out in the affidavit of Ryan Lee of 28 October 2004 have all been ventilated, perhaps not as in quite as much detail or with such specificity at previous directions hearings. Attempts were made to address these concerns informally and it was as a result of my suggestion that the solicitors for the Respondent set out their concerns and the issues in respect of which they were seeking clarification in the letter of 28 September 2004 to the Applicant's solicitors. Once again, the response was less than forthcoming and certainly not as anticipated. I feel sure my expectations were made clear to counsel at the directions hearing.

28. The Applicant seems to fail to appreciate that a Respondent is not required, even if it were able, to defend a claim by trying to second guess or speculate as to the material facts and particulars which allegedly support such claim.

29. The general lack of co-operation by the Applicant is clearly demonstrated by Mr Bingham's response to Mr Lapirow's request for details of the building contract and some further information about the Applicant's claim for loss and damage. He said that these matters were not included in the 1 July or 1 September 2004 request for particulars. This is an extraordinary proposition - had the request of 1 September 2004 been fully and appropriately answered this information would have been included in those answers.

30. It seemed to me during the course of this directions hearing that Mr Bingham was inviting the Tribunal to accept certain propositions based on speculation. For instance, he submitted that whether or not the builder had any obligation to obtain planning or building permits was irrelevant in relation to the issues between the parties in this proceeding, but that in any event it was entirely improbable that the builder would have had any liability to obtain the planning permit. I am not sure what this submission is based on other than mere speculation.

Application to stay or dismiss the proceeding

31. Somewhat unusually, the orders the Respondent is seeking are to be found in the final paragraph of Mr Lee's affidavit of 28 October 2004:

The Respondent seeks an Order dismissing the Application under s75 of the Act; or in the alternative a stay of the proceedings pending provision by the Applicant of proper particulars of its claim together with an Order for costs of and incidental to this application under s 79 and of the proceedings itself, should they be dismissed.

32. Mr Lapirow confirmed the Respondent is seeking that the proceeding be dismissed under s75 of the Victorian Civil and Administrative Tribunal Act 1998 or alternatively that it be stayed pending provision by the Applicant of proper particulars of its claim. However, the manner in which this hearing was conducted indicates to me that the primary focus of this application is for an order requiring the provision of proper particulars, specifically details of the contract between the Applicant and the builder together with information about the loss and damage claimed by the Applicant. It is clear that the Respondent has been seeking this information, to which I am of the view he is entitled, for some considerable period of time so that he may properly determine whether to make further application for joinder of other parties to this proceeding, which may include the builder. The time limit for making such application has been extended on a number of occasions to enable the obtaining of this information which the Applicant consistently refuses to provide. Whilst I accept that the Respondent is unable to use a Request for Particulars to 'fish' for evidence to enable it to make application for joinder, I am satisfied that the particulars sought are all proper requests and the answers, once provided, should assist the Respondent to better understand the case it has to answer.

33. Section 75 of the Act provides:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(4) An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

34. Whilst the Tribunal has the power to summarily dismiss or strike out a proceeding there is no power under s75 to order a stay of the proceedings (Maltall Pty Ltd v Bevendale Pty Ltd (1998) 14 VAR 368). This power must be exercised with care and only if the Tribunal is satisfied that the proceeding is "frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process" - I am not persuaded on the material before me that it would be reasonable or proper for me to take this step at this time. Whilst the Applicant has consistently failed or neglected to provide the requested particulars this of itself does not mean that the proceeding is frivolous, vexatious, misconceived or lacking in process or is otherwise an abuse of process. I am assisted in this regard by the observations of Deputy President Cremean (as he then was) in West Homes (Australia) Pty Ltd v Crebar Pty Ltd (supra) where at paragraph 6 he said:

"A proceeding in this sense, it seems to me, is the matter being advanced in the Tribunal. It does not seem to be simply the wording in a document in a proceeding. The matter is one which will be constituted by the cause or causes of action. It is that or those which must be "frivolous, vexatious, misconceived or lacking in substance" or which must be "otherwise an abuse of process."

35. I cannot be satisfied on the material before me that the cause or causes of action are frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process. It seems to me that rather than order the Applicant to file and serve proper answers to the Request for Particulars dated 1 September 2004, it would be more expedient to order it to file and serve further further Amended Points of Claim (the Applicant having previously been given leave on two occasions to file and serve Amended Points of Claim) which shall fully particularise- the claim or claims made; the basis for making such claim or claims; any alleged loss and damage; the method of calculation of such loss and damage; and the relief or remedy sought. In so doing, the Applicant should have regard to the Respondent's requests for particulars and the concerns raised at the hearing of this application. I will reserve the question of cost.