PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION
OF PROCEEDINGS
– SEPARATE DECISION OR DETERMINATION – where the plaintiff brought
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATIONOF PROCEEDINGS– SEPARATE DECISION OR DETERMINATION – where the plaintiff broughtan application to strike out partsof the defendants’ defences or,alternatively, for the issues in the identified parts to be determined summarilyor separatelyfrom the other issues in the proceeding – where there is areal question to be determined on the pleading – whether theissues shouldbe determined summarily or separately from the other issues in theproceedingPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –PLEADINGS – STRIKING OUT – GENERALLY –where the plaintiffbrought claims against the defendants for the failure of the defendants to carryout works pursuant to variousagreements – where the plaintiff broughtapplications to strike out parts of the defendants’ defences or,
alternatively,
sought an order for the provision of particulars – where
the plaintiff alleged that the defendants’ pleadings did not
sufficiently
plead the contents of the agreements between the parties, the alleged breaches
of those agreements, and the alleged
termination of those agreements –
where the pleadings were not so deficient to warrant being struck out –
whether further
particulars were required
Uniform Civil Procedure Rules 1999 (Qld) r 5, r 171
Equititrust Limited v Tucker (No 2) [2019] QSC 248, cited
Judgment (128 paragraphs)
[1]
Carter Newell for the first, second and third defendants
[2]
[1] There are two applications to strike out parts of the defences in two related proceedings. Both proceedings are managed on the Building, Engineering and Construction List.
[2] The plaintiff filed amended applications on 6 June 2025 as follows:
[3]
(a) In proceeding 1590 of 2022 (2022 proceeding) to strike out paragraphs 18BK(d)(ii), 24, 31A, 31B, 31C, 41, 42, 44, 83, 83A, 83C, 83E, 83F, 174, 175, 176, 178, 180[1] and the Schedule of the Second Further Amended Defence (2FAD).
(b) In proceeding 2371 of 2024 (2024 proceeding):
(i) to strike out paragraphs 18BK, 23, 30A, 30B and 30C of the Amended Defence filed by the fourth and fifth defendants on 30 May 2025 (Centuria AD); and
(ii) to strike out paragraphs 9, 26, 65, 73, 106, 130 of the Amended Defence of the first to third defendants filed on 27 May 2025 (Lautaret AD).
[4]
[3] In the application in the 2022 proceeding, the plaintiff also seeks in the alternative to striking out the identified paragraphs:
[5]
(a) an order for provision of particulars;
(b) the issues in the identified paragraphs be determined summarily; or
(c) the issues raised in the identified paragraphs be determined separately and before any other issues in the proceedings.
[6]
[4] The application in the 2024 proceeding only seeks in the alternative an order for provision of particulars.
[5] The issues to be determined are:
[7]
(a) Whether it is appropriate that the issues raised by the identified paragraphs be determined summarily or, alternatively, be determined separately before any other issues in the proceeding.
(b) Whether the identified paragraphs should be struck out, or alternatively whether further particulars should be provided.
[8]
[6] Before turning to consider the legal principles and the complaints about the identified paragraphs, it is appropriate to consider some of the factual background to the proceedings.
[9]
[7] The defendant in the 2022 proceeding, CHPF South Bunbury Pty Ltd (CHPF South Bunbury) is the owner of the land where a hospital was being built, which included the renovation of a heritage building (the Hospital).
[8] Under an Agreement for Lease between CHPF South Bunbury and the plaintiff dated 16 September 2021 (Agreement for Lease), CHPF South Bunbury was the landlord and the plaintiff would have become the tenant of the Hospital.
[9] The plaintiff claims in the 2022 proceeding that CHPF South Bunbury was not carrying out its obligations under the Agreement for Lease, including claims of the failure to carry out the works pleaded in the Schedule (Schedule) to the Fourth Further Amended Statement of Claim (4FASOC).
[10] The plaintiff's claims in the 4FASOC include:
[10]
(a) The builder[2] was building the Hospital in accordance with particular drawings and a Development Approval (DA) that was obtained after the Agreement for Lease was entered into. In particular, the building was being built in accordance with a subsequent Development Approval (DA2) and different drawings (the DA2 Drawings).
(b) The heritage building part of the Hospital was being built to the wrong classification, namely class 5 and class 7 rather than class 9a.
(c) The matters in (a) and (b) were not in accordance with various contractual plans, codes, approvals, specifications, standards and guidelines for the reasons pleaded in the Schedule.
(d) That was a breach of the Agreement for Lease.
(e) Failure to obtain the consent of the plaintiff to change to DA2, and the limitation in DA2 on what could be built, was a repudiation of the Agreement for Lease.
[11]
[11] The plaintiff contends that the matters in the Schedule identify how what was being built departed from what was required under the Agreement for Lease.
[12] The 2024 proceeding is a claim by the plaintiff that it was misled into entering into the Agreement for Lease. The first defendant, Lautaret Pty Ltd (Lautaret), was the developer appointed by CHPF South Bunbury to engage the builder to build the Hospital. The second and third defendants are the current or former directors of the Lautaret (together with Lautaret, the Lautaret Defendants).
[13] The fourth and fifth defendants, Centuria Healthcare Pty Ltd and Centuria Capital Limited (together the Centuria Companies), are the holding companies of CHPF South Bunbury.
[14] The proposed development of the Hospital was dealt with in three separate agreements:
[12]
(a) The Agreement for Lease.
(b) The Development Agreement between CHPF South Bunbury and Lautaret dated 15 September 2021 (Development Agreement).
(c) A Building Contract for the design and the construction of the Hospital dated 16 September 2021 between Lautaret (as principal) and TF Woollam and Son Pty Ltd (as contractor) (the Building Contract). The Building Contract is the subject of separate proceedings between Lautaret and TF Woollam and Son Pty Ltd, which is also managed on the Building, Engineering and Construction List.
[13]
[15] On 12 March 2025, CHPF South Bunbury sent a notice to the plaintiff terminating the Agreement for Lease (AFL Termination Notice).[3] The termination was pursuant to clause 2.4(a)(i) of the Agreement for Lease which provided that CHPF South Bunbury could terminate the Agreement by giving written notice if the Development Agreement was terminated for any reason. The Development Agreement had been terminated the previous day.
[16] At the date of termination of the Agreement for Lease, the Hospital was not complete and the plaintiff had not taken a lease of the Hospital.
[17] Parts of the pleadings in the 2022 proceeding are reflected in the pleadings in the 2024 proceeding. Dealing with the application in the 2022 proceeding in respect of the 2FAD will also deal with the issues in respect of the Centuria AD.
[18] Accordingly, in respect of the application in the 2024 proceeding, it is necessary to separately consider the issues in respect of the Lautaret AD. The Lautaret Defendants have proposed further amendments to deal with the complaints raised by the plaintiff. These have largely been agreed. Three remained to be considered at the hearing, and one of those was agreed in the course of submissions. Accordingly, only the proposed pleading in respect of paragraphs 73 and 106 remain in contention.
[19] At a very broad level, the plaintiff's complaints fall into three main categories:
[14]
(a) The defendants in both proceedings do not properly plead the alleged termination of the Agreement for Lease and related agreements.
(b) CHPF South Bunbury does not properly plead its case in respect of the contents of the Agreement for Lease, which allegedly changed after the Agreement for Lease was entered into.
(c) CHPF South Bunbury does not properly traverse the allegations in the 4FASOC in respect of breach of the Agreement for Lease.
[15]
[20] It is appropriate to first consider whether it is appropriate that the issues raised by the identified paragraphs be determined summarily or, alternatively, be determined separately before any other issues in the proceedings.
[16]
Is it appropriate that the issues raised in the applications be determined summarily or, alternatively, be determined separately before any other issues in the proceeding?
[17]
[21] Whilst the application in the 2022 proceeding does seek that the issues raised by the identified paragraphs be determined summarily or, alternatively, be determined separately before any other issues in the proceeding, the plaintiff does not expand on this relief in the written submissions.
[22] Whilst not expressly stated to be, the application can be understood to be an application pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (UCPR). Rule 171 provides:
[18]
"(1) This rule applies if a pleading or part of a pleading -
[19]
(a) discloses no reasonable cause of action or defence; or
(b) has a tendency to prejudice or delay the fair trial of the proceeding; or
(c) is unnecessary or scandalous; or
(d) is frivolous or vexatious; or
(e) is otherwise an abuse of the process of the court.
[20]
(2) 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.
[21]
(3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading."
[22]
[23] In submissions in reply, the plaintiff submitted that the alternative bases in the application were suggestions on how the Court could approach the issue, but all the plaintiff wanted was that the issue "be dealt with".[4] One suggested option was "just to determine some of [the] questions about what a project approval was".[5] However, ultimately the plaintiff did not press that option, recognising that preliminary points were "almost never ... done".[6]
[24] Further, in submissions in reply, the plaintiff acknowledged that even if the 2FAD was struck out, there would be an application for leave to replead and that leave would be granted,[7] particularly where the proceeding was case managed on a managed list. Leave to replead was also accepted as more likely to be appropriate where there had been a significant shift in circumstances since the proceedings were first filed.[8]
[25] CHPF South Bunbury does address this issue and notes the absence of written submissions from the plaintiff, particularly as to why summary determination is appropriate and what questions should be determined separately.
[26] CHPF South Bunbury contends:
[23]
(a) The impugned paragraphs contain sufficiently arguable allegations of fact and law.
(b) The plaintiff's criticisms of the impugned paragraphs are of a nature that should properly be determined at trial.
[24]
[27] The decision of Bowskill J (as the Chief Justice then was) in Equititrust Limited v Tucker (No 2)[9] is relied upon by CHPF South Bunbury in support of its position. Her Honour relevantly stated:
[25]
"[9] Where the effect of the invocation of the power would be to summarily dismiss a party's claim, or part of it, the court is to adopt a cautious approach and the discretion should only be exercised in the clearest case.[10] As Mackenzie J said in Royalene Pty Ltd v Registrar of Titles[2007] QSC 59 at [6] this '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'.
[26]
[10] The focus of such an application is the pleading itself.[11] As such, the court ordinarily assumes the factual allegations made by the plaintiff can be established;[12] particularly where the application is brought at an early stage.[13] Although, the court is not limited to receiving evidence about the pleading (r 171(3)). Nevertheless, the apparent improbability of impugned allegations of fact does not justify the exercise of the power to strike out a pleading, because 'to enter upon the question of their truth or falsehood would be trying the action prematurely'.[14]
[27]
[11] While the court may determine a difficult question of law on such an application,[15] the power to strike out a sufficiently pleaded statement of claim cannot be exercised 'once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it'.[16]
[28]
[28] In light of these statements of principle, CHPF South Bunbury submits that the Court should not "immediately jump" to exercising the power to summarily dismiss a party's claim or part of it. For the purposes of the application, the Court can assume that both the plaintiff and CHPF South Bunbury can make out the factual propositions in the respective pleadings. However, the Court at this stage does not then assess what evidence might be accepted at trial in order to consider whether it is appropriate to strike out or summarily dismiss all or part of a pleading.
[29] In circumstances where it appears that there is a real question to be determined on the pleading and the rights of the parties depend on it, CHPF South Bunbury submits the Court should not strike out or summarily dismiss the 2FAD.
[30] CHPF South Bunbury also contends that for all of the identified paragraphs of the 2FAD there are analogous paragraphs in the Centuria AD in the 2024 proceeding. However, fewer paragraphs are impugned in the Centuria AD. There is no reason to draw a distinction between the pleadings in the 2FAD and the Centuria AD and a common approach should be taken. This common approach is taken in the submissions of CHPF South Bunbury and the Centuria Companies.
[31] The logic of this approach would also apply to the analysis of the pleadings and also the relief. No reason is identified to justify summary or separate determination of the issues raised in the impugned paragraphs in the 2FAD. Further, no reason is identified to justify that relief in respect of the impugned paragraphs in the 2FAD, rather than the Centuria AD.
[32] These matters are also case managed on the Building, Engineering and Construction List. In all of the circumstances and consistent with the objectives in r 5 of the UCPR and Practice Direction Number 2 of 2024, it is not appropriate to proceed by way of summary or separate determination of the issues raised in the impugned paragraphs in the 2FAD.
[33] The applications should be dealt with in accordance with the aim of facilitating "the just and expeditious resolution of the real issues in dispute at a minimum of expense by ensuring that the issues in contest are identified at an early date and that the litigation is not unnecessarily delayed by interlocutory disputes".[17]
[29]
(a) striking out part of the 2AD with leave to replead;
(b) the provision of further and better particulars; or
(c) another mechanism that requires the provision of further details to clearly identify the disputes between the parties in respect the relevant issues.
[30]
[36] Turning to consider the identified paragraphs in the 2FAD.
[31]
Are there deficiencies in the pleading in respect of the termination of the Agreement for Lease and the Development Agreement?
[32]
[37] Paragraphs 24, 31A, 31B and 31C of the 2FAD can be dealt with together.[18] The plaintiff contends that these paragraphs do not properly plead the termination of the Development Agreement.
[38] The complaint in respect of paragraphs 83C and 83F of the 2FAD is on the same or similar basis. It is also convenient to consider those paragraphs under this heading.
[39] The plaintiff submits that CHPF South Bunbury has failed to plead facts or particulars that must be pleaded to support the allegations that the plaintiff has terminated the Development Agreement and Agreement for Lease.
[40] The plaintiff also submits:
[33]
(a) The general rule is those who plead prove.
(b) If a party wants to plead the termination of a contract, the absence of a right to terminate or an absence of termination itself, then the party has to plead with some specificity.
(c) Here there is no difference between saying "we terminated the Agreement for Lease" and "we terminated the Development Agreement" because the only reason for the termination of the Agreement for Lease is the termination of the Development Agreement.
(d) CHPF South Bunbury and the Centuria Companies in their respective defences plead the position contrary to that pleaded by the Lautaret Defendants: the former asserting the termination and the latter not accepting the termination. Accordingly, the respective parties will have to prove their position in respect of the termination.
(e) It is not up to the plaintiff, in its case in chief, to prove something in the defendants' case.
(f) The issue should be pleaded consistently with rules 150, 155 and 157 of the UCPR. Consequently, the breaches depended on to support the termination should be identified and particulars provided.
(g) Otherwise, the plaintiff is not able to understand whether there was a proper basis for the termination of the Development Agreement or not.[19]
[34]
[41] The plaintiff submits that the termination or purported termination is an important issue as:
[35]
(a) If the termination of the Development Agreement was not lawful, then the termination of the Agreement for Lease was not lawful, and that affects the entire proceeding, in particular the damages claim.
(b) It also affects the plaintiff's pleaded case in respect of what was being built to comply with the Agreement for Lease: that is the dispute about what was required to be built and what was actually being built.
(c) The dispute as to the scope of what was being built appears to be relevant to why the Centuria Companies terminated the Development Agreement and why Lautaret does not accept the termination.[20]
[36]
[42] CHPF South Bunbury contends that the termination of the Development Agreement has been properly pleaded and the necessary particulars have been provided. Further, that if the plaintiff wishes to advance a positive case alleging that the termination was wrongful or ineffective, it possesses the necessary knowledge to do so.
[43] Paragraph 24(d) of the 2FAD pleads that "on 11 March 2025, the defendant terminated the Development Agreement" and particularises the Letter from CHPF to South Bunbury to Lautaret dated 11 March 2025 (the DA Termination Letter).
[44] By the DA Termination Letter, CHPF South Bunbury notified Lautaret that it had terminated the Development Agreement. CHPF South Bunbury also points to:
[37]
(a) The DA Termination Letter incorporated the Notice to Remedy dated 28 January 2025, outlining why CHPF South Bunbury contended that Lautaret was in breach of the Development Agreement.
(b) The DA Termination Letter noted that the breach had not been remedied within the prescribed time.
(c) The DA Termination Letter terminated the Development Agreement pursuant to the power in clause 14.1(a)(i) of the Development Agreement.
[38]
[45] It is submitted by CHPF South Bunbury that:
[39]
(a) As the plaintiff has a copy of the DA Termination Letter and the Notice to Remedy, it is able to assess whether the Development Agreement, and thereby the Agreement for Lease, have been validly terminated. Further, despite being invited to do so, the plaintiff has not sought to amend the 4FASOC to allege an invalid termination.
(b) In the 2022 proceeding, there is no dispute as to the validity of the termination of the Development Agreement and the Agreement for Lease.
(c) There is nothing objectionable about the way CHPF South Bunbury pleads the fact that the Development Agreement was terminated.
(d) The plaintiff has sufficient information of the case it has to meet and to contend that the Development Agreement was wrongfully terminated, if it chose to do so.
[40]
[46] In respect of the particular paragraphs identified in the application in respect of this issue:
[41]
(a) Paragraph 24 of the 2FAD:
(i) No objection appears to be taken to subparagraphs (a), (b) and (c). Those paragraphs contain admissions as to the Development Agreement and its purpose. There is nothing objectionable in these subparagraphs.
(ii) Subparagraph (d) is relevant to the termination issue, as discussed above.
(iii) No objection appears to be taken to subparagraph (e). Further:
(A) Subparagraph (e) states:
[42]
"all references to the Development Agreement in [the 2FAD], and to the parties' rights and obligations under the Development Agreement, are made subject to paragraph (d) above".
[43]
(B) There is nothing objectionable in this subparagraph.
[44]
(b) Paragraph 31A of the 2FAD:
(i) This paragraph pleads the terms of clauses 1.2 and 2.4(a) of the Agreement for Lease.
(ii) There is nothing objectionable in respect of this paragraph.
(c) Paragraph 31B of the 2FAD:
(i) This paragraph pleads the material terms of the letter sent by CHPF South Bunbury to the plaintiff on 12 March 2025 terminating the Agreement for Lease.
(ii) There is nothing objectionable in respect of this paragraph.
(d) Paragraph 31C of the 2FAD:
(i) This paragraph pleads that the Agreement for Lease was terminated on 12 March 2025 and cross-refers to paragraph 31A in respect of the source of the power and paragraphs 24(d) and 31B as to the "factual trigger" for the power to be exercised.
(ii) There is nothing objectionable in respect of this paragraph.
[45]
[47] The above analysis equally applies to the equivalent paragraphs of the Centuria AD: paragraphs 23, 30A, 30B and 30C.
[46]
[48] It is necessary to consider the identified paragraphs in the context of the pleadings in the 2022 proceeding and also the 2024 proceeding.[21]
[49] The one thing that does emerge as a significant issue between all of the parties in both proceedings is the scope of the works in respect of the Hospital. There is a dispute as to what was required to be built under the Agreement for Lease, the Development Agreement, and the Building Contract and who was responsible for what.
[50] As the termination of the Agreement for Lease is dependent on the termination of the Development Agreement, the basis of the termination of the Development Agreement is an issue in the 2022 proceeding, as well as the 2024 proceeding.
[51] There has been no consideration at this stage as to whether the two proceedings will be heard concurrently or consecutively, or whether there is a proper basis for their consolidation. That is something that further thought needs to be given to.
[52] However, for the purposes of the current applications, the 2022 proceeding and the 2024 proceeding are related but separate. The parties are different, even though the claims are related.
[53] Further, in the 2024 proceeding, there is a divergence in the positions of the defendants in respect of the termination of the Development Agreement:
[47]
(a) The Centuria Companies in the Centuria AD plead the termination of the Development Agreement at paragraph 23(d) in the same form as paragraph 24(d) in the 2FAD.
(b) In contrast the Lautaret Defendants plead at paragraph 106 of the Lautaret AD that the Development Agreement was "purportedly terminated". The Lautaret Defendants have proposed an amended pleading (which will be further considered later). The proposed pleading deletes "purported" and pleads the Notice to Remedy dated 28 January 2025, the Response to the Notice to Remedy dated 26 February 2025, and the DA Termination Letter issued pursuant to clause 14.1(a)(ii) of the Development Agreement. In both the current pleading and the proposed pleading it can, at least, be inferred that the Lautaret Defendants are seeking to rely on the response to the Notice to Remedy and to some extent are putting in issue the validity of the termination.
[48]
[54] The breaches identified in the Notice to Remedy and the response provided in the Response to the Notice to Remedy are therefore likely to be central to the issue of the termination of the Development Agreement in the 2024 proceeding.
[55] To the extent that this divergence is not reflected in the current pleadings in the 2022 proceeding, this is likely to be due to the different parties but also the approach that has been taken to pleading the termination. This is, in turn, likely to result in the real issues in dispute not being clearly identified across both proceedings.
[56] The Notice to Remedy dated 28 January[22] relevantly states:
[49]
"3. Pursuant to clause 3.2(a) and 4 of the Development Agreement, the Developer must, at its Cost, obtain, or procure that the Builder obtain, all Approvals necessary to carry out the Works (including the Approvals required under the Private Health Facilities Act 1999 (Qld) for the construction of the Project). The Developer must use reasonable endeavours to obtain the required Approvals as soon as reasonably possible."
[50]
[57] The Notice to Remedy includes Annexure A which outlines correspondence which is said to demonstrate:
[51]
"a. on or around 18 October 2024, the Developer approved the 100% IFC design documentation submitted by the Builder in GC-244 and GC-246;
[52]
the Builder requires an updated Building Approval in order to continue work on the Project in accordance with the design approved by the Developer on or around 18 October 2024;
as at the date of this letter, the Developer has failed to obtain the Approvals that are required under the Development Agreement to enable the Works to be carried out in accordance with the 100% IFC design that was approved by the Developer on 18 October 2024;
in the absence of an updated Building Approval, the Builder is being significantly delayed in the execution of the Works and is at a point where no further material work can be carried out under the existing building approval; and
we have been informed by you that Queensland Health has stated that it will not carry out a review without the involvement of the authority holder for the hospital licence."
[53]
[58] The Notice to Remedy required the failure of Lautaret to obtain the required approvals to be remedied within 30 days, and foreshadowed that otherwise a notice of termination would be given pursuant to clause 14.1(a) of the Development Agreement.
[59] Annexure A contains a detailed summary of the "Chronology evidencing failure of [Lautaret] to obtain required Building Approval". Even a cursory glance at the chronology at Annexure A supports that this relates to a dispute as to the scope of the works and who was responsible for the relevant approvals. It goes to what was required to be built and who was responsible under the Development Agreement. It also picks up the dispute that had emerged under the Building Contract, again, as to what was required to be built and who was responsible.
[60] It also appears that there is some commonality in the complaints raised by the plaintiff in respect of what was required to be built and who was responsible under both the Agreement for Lease and the Development Agreement.
[61] Lautaret provided a Notice of Dispute dated 26 February 2025[23] to CHPF South Bunbury calling on the Notice to Remedy to be withdrawn as Lautaret disputed the entitlement to issue the Notice to Remedy. Further, a detailed letter dated 26 February 2025[24] outlined Lautaret's response to the issues raised in the Notice to Remedy, including that the matters identified did not amount to a breach of the Development Agreement.
[62] In light of the matters set out in the Notice to Remedy and the Response to the Notice to Remedy, the dispute as to the scope of the works and who was responsible under Development Agreement is central to the termination of the Development Agreement. In turn, this is relevant to the termination of the Agreement for Lease.
[63] It is also relevant to the further issues of the terms of the Agreement for Lease and the alleged breaches of the Agreement for Lease. The performance obligations under the Agreement for Lease cannot be understood in complete isolation from the performance obligations under the Development Agreement.
[64] Whilst CHPF South Bunbury's pleading may not be so deficient in respect of the pleading of the termination in paragraph 24(d) of the 2FAD to warrant it being struck out, at least at this stage, it is appropriate that further particulars be provided. This approach is consistent with r 5 of the UCPR and the aim of Practice Direction Number 2 of 2024 to clearly identify the real issues in dispute between the parties.
[54]
(a) The breaches of the Development Agreement relied upon by CHPF South Bunbury for the purposes of clause 14 of the Development Agreement, including what is relied upon to establish that the breach is "materially prejudicial to [CHPF South Bunbury]" within clause 14.1(a).
(b) The basis that CHPF South Bunbury disputes the matters raised at:
(i) Paragraph 8 of the Notice of Dispute issued by Lautaret dated 26 February 2025; and
(ii) Paragraphs 4 to 6 of the letter from Geon to Centuria Healthcare dated 26 February 2025.
[55]
[67] Whilst the plaintiff does have the underlying documents, the provision of particulars will assist in identifying the real issues in dispute, including as to whether further amendments to the 4ASOC and 2FAD are required (and the corresponding pleadings in the 2024 proceeding).
[68] The particulars should also provide some transparency to enable all parties to be able to identify whether the breaches relied upon to trigger the termination of the Development Agreement are the same or similar to the breaches of the Agreement for Lease alleged by the plaintiff (including as set out in the Schedule to the 4ASOC).
[69] There is a second aspect of this first issue that needs to be considered, in relation to paragraphs 83F and 83C of the 2FAD.
[70] The plaintiff contends that there is an inconsistency between the AFL Termination Notice and paragraphs 83F and 83C of the 2FAD. CHPF South Bunbury submits there is no inconsistency.
[71] The AFL Termination Notice sets out details relevant to the various approvals and designs and CHPF South Bunbury's view on who had an obligation in respect of those approvals and designs. Again, this raises issues that may crossover with the breaches relied upon to support the termination of the Development Agreement. As these are not addressed in the pleadings, it leads to uncertainty as to what is in dispute between the parties.
[72] In particular, the plaintiff submits that paragraph 27 of the AFL Termination Notice is inconsistent with the plea of CHPF South Bunbury:
[56]
(a) in paragraph 83F(d)(i) of the 2FAD that it was "able to cause Landlord's Works to be carried out in accordance with the Project Approvals";[25] and
(b) in paragraphs 83C(f), (j), (k) and (l) of the 2FAD that it "intended to cause, up to the Termination Date" the Landlord's Works to comply with various standards.
[57]
[73] Paragraph 27 of the AFL Termination Notice states that:
[58]
"On 28 January 2025, [CHPF South Bunbury] served a Notice to Remedy on [Lautaret] stating that [Lautaret] was in breach of its obligations to obtain all Approvals to carry out the Works (as that term is defined in the Development Agreement), as required by clauses 3.2(a) and 4 of the Development Agreement, and this breach was preventing the development of the Hospital from being efficiently progressed and completed. The Notice to Remedy required the breach to be remedied immediately and stated that if it was not remedied within 30 days, [CHPF South Bunbury] would be entitled to terminate the Development Agreement."
[59]
[74] CHPF South Bunbury's position is that the obligation to perform the Landlord's Works was suspended to the extent that the Landlord's Works were affected by the delay until the new building approval had been obtained. Further, it is contended that CHPF South Bunbury was not stopped from performing other Landlord's Works which had not been suspended. This would be works that were otherwise carried out in accordance with the existing building approval.
[75] It is also submitted by CHPF South Bunbury that the concern in respect of Lautaret was not that it was causing Landlord's Works to be performed otherwise than in accordance with the Project Approvals. Rather the concern was that Lautaret needed to obtain further "approval", which required the involvement of Queensland Health, to allow for the further development of the Hospital.
[76] CHPF South Bunbury contends that issuing the Notice to Remedy outlining the alleged breaches of the Development Agreement was consistent with an intention to cause the Landlord's Works to be completed in accordance with the terms of the Approval for Lease.
[77] Whilst CHPF South Bunbury's pleading may not be so deficient in respect of the pleading of the termination in paragraphs 83F and 83C of the 2FAD to warrant it being struck out, at least at this stage, it is appropriate that further particulars be provided. This approach is consistent with r 5 of the UCPR and the aim of Practice Direction Number 2 of 2024 to clearly identify the real issues in dispute between the parties.
[78] What is required is, at least, the provision of further and better particulars by CHPF South Bunbury in the 2022 proceeding as to:
[60]
(a) in respect of paragraph 83F(d)(i) of the 2FAD, the matters relied upon to establish that CHPF South Bunbury before the Termination Date was "able to cause Landlord's Works to be carried out in accordance with the Project Approvals".
(b) in respect of paragraphs 83C(f), (j), (k) and (l) of the 2FAD, the matters relied upon to establish that CHPF South Bunbury "intended to cause, up to the Termination Date" the Landlord's Works to comply with various standards identified in those paragraphs.
[61]
[79] To the extent that the further and better particulars to (b) above would require intention to be specifically pleaded pursuant to r 150(1)(k) of the UCPR, a proposed pleading in that respect should be included in the document providing the particulars. It can then be considered at a further review whether the 2FAD should be amended at this stage.
[80] There also should be some further articulation of CHPF South Bunbury's position as to:
[62]
(a) The subject matter of the further "approval" that Lautaret needed to obtain, requiring involvement of Queensland Heath.
(b) Why that further "approval" was required.
(c) How (a) and (b) above fit with what was required to be built under the Development Agreement and the Agreement for Lease.
[63]
[81] Whilst this may be clear to CHPF South Bunbury, it is not clear to the plaintiff, and it is also not clear to a reader of the pleadings. To the extent that it is additional to the further and better particulars described at [66] and [78], this explanation should also be provided as part of the further and better particulars.
[64]
Are there deficiencies in the pleading in respect of the Agreement for Lease?
[65]
[82] Paragraphs 18BK(d)(ii), 41, 42, 44, 83, 83A, 83C, 83E, 83F, 175, 176, 178 and 180 and the Schedule of the 2FAD can be dealt with together. The plaintiff contends that these paragraphs do not properly plead the "case in respect of the contents of the [Agreement for Lease] which allegedly changed after the [Agreement for Lease] was entered".
[83] Paragraph 18BK(d)(ii) of the Centuria AD in the 2024 proceeding is the same as paragraph 18BK(d)(ii) of the 2FAD in the 2022 proceeding.
[84] Central to the complaint raised by the plaintiff is whether the DA or the DA2 is the relevant Project Approval under the Agreement for Lease. The plaintiff contends that it is the DA. CHPF South Bunbury and the Centuria Companies contend that it is the DA2.
[85] CHPF South Bunbury's position is:
[66]
(a) The terms of the Agreement for Lease did not change after the parties entered into the Agreement for Lease.
(b) The Agreement for Lease defines "Project Approvals" as being "all approvals which [CHPF South Bunbury] is required to obtain from any Authority for the construction of the Landlord's Works on the Land". This is pleaded at paragraph 41(a) of the 2FAD.
(c) Clause 1.3(a)(i) of the Agreement for Lease provides that "Project Approval" includes "any variation or replacement of it". This is pleaded at paragraph 41(aa) of the 2FAD.
(d) Clause 3.1(a)(ii)(A) of the Agreement for Lease provides that CHPF South Bunbury must cause the Landlord's Works to be carried out in accordance with all Project Approvals.
(e) The DA is the Development Permit attached to the order of the Planning and Environment Court made on 19 January 2021 and was a "Project Approval".
(f) The DA2 is a "Project Approval" because it is a "variation or replacement" of another Project Approval pursuant to clause 1.3(a)(i) of the Agreement for Lease.
(g) CHPF South Bunbury relies on the following bases for the DA2 superseding the DA:
(i) The plaintiff consented to the variation (pleaded at paragraph 83(b) of the 2FAD):
(A) by express consent given by the email dated 15 July 2023; or
(B) by deemed consent by the failure to provide a further Objection Notice within 10 business days.
(ii) The variations between the DA and the DA2 were not variations of the kind which required the plaintiff's consent (pleaded at paragraph 83(c) of the 2FAD).
[67]
[86] It is apparent from the submissions made in respect of the application that the plaintiff does not accept the factual or legal basis for CHPF South Bunbury's pleading in respect of the Development Approval 2. This issue is plainly in dispute and is likely to be a central issue as it is critical to determining what was to be built. However, ultimately that is a matter for trial.
[87] Turning to look at the pleadings in the identified paragraphs.
[88] The plaintiff raises concerns in respect of the following paragraphs of the 2FAD in respect of the pleading of the DA2. CHPF South Bunbury responds to each in turn:
[68]
(a) Paragraph 41 of the 2FAD:
(i) The effect of paragraphs 41(b) and (e) to (g) is that the DA has been superseded by the DA2. This is on the basis outlined above. CHPF South Bunbury submits that there is nothing objectionable in this pleading.
(ii) Paragraph 41(a) states the relevant definitions of "Project Approvals" in the Agreement for Lease. The definitions of "Authority" and "Landlord's Works" in the Agreement for Lease are not expressly set out in the 2FAD but are clearly incorporated by the pleading in paragraph 41(a). CHPF South Bunbury also refers to the admission by the plaintiff in the Further Amended Reply.
(b) Paragraph 42 of the 2FAD:
(i) Paragraphs 42(b) and (d) also plead that the DA was a Project Approval but has been superseded by the DA2. Again, CHPF South Bunbury submits there is nothing objectionable about this pleading.
(ii) Further, it is submitted that the plaintiff has not articulated a complaint about the other subparagraphs in paragraph 42.
[69]
(c) Paragraph 44 of the 2FAD:
(i) The plaintiff's rule 444 letter dated 13 May 2025 (rule 444 letter)[26] only identified a complaint in respect of paragraph 44(d). Again, paragraph 44(d) deals with the DA2 superseding the DA and CHPF South Bunbury contends it is not objectionable. The comments in respect of paragraph 41 equally apply to this subparagraph.
(ii) In respect of the other subparagraphs:
(A) Subparagraph (a) pleads the contents of the "amended Schedule of conditions" in the DA, which is admitted in the Further Amended Reply.
(B) Subparagraph (ab) repeats and relies on the pleading in subparagraph 18BF(a) of the 2FAD which deals with aspects of the DA. The plaintiff admits paragraph 18BF in the Further Amended Reply, apart from subparagraph 18BF(a)(vii).[27] This aspect of the DA is controversial between the parties and is likely to be a major issue at the trial. However, CHPF South Bunbury submits that while their construction is in dispute that is not a justification to strike out that part of the pleading.
(C) Subparagraph (b) is an orthodox pleading of relying on the DA for its full terms, meaning and effect. It is submitted that there is nothing objectionable in this pleading.
(D) Subparagraph (c) is a pleading of the reason for the otherwise denial of the allegations in paragraph 44 of the 4FASOC. This pleading contains the construction contended for by CHPF South Bunbury of the terms "generally comply" and "general arrangement plans" in the DA. It is submitted that there is nothing objectionable in this pleading.
(E) Subparagraph (e) pleads the position following termination that there was no ongoing obligation to cause any of the Landlord's Works to be performed. The plaintiff does not identify any complaint in respect of this subparagraph and CHPF South Bunbury submits that there is nothing objectionable in this pleading to warrant it being struck out.
(d) Paragraph 83 of the 2FAD:
(i) Paragraph 83 contains the substantive pleading of why CHPF South Bunbury contends that the DA was superseded by the DA2. As discussed above, that is consent on two separate bases,[28] or that the variations were not of a kind within clause 3.2(b) of the Agreement for Lease.
[70]
[89] There is no basis to strike out or to order the provision of further particulars in respect of the pleading in paragraphs 41(a), (b), (e) to (g), 42, 44(a), (b), (c) and (e), and 83F of the 2FAD.
[90] In respect of paragraph 44(ab) of the 2FAD, the pleading in respect of paragraph 18BF which is picked up by this paragraph is in dispute in respect of subparagraph 18BF(a)(vii). However, that is not a basis to strike out or to order the provision of further particulars in respect of the pleading. The construction of the DA is plainly in issue between the parties and the construction contended for by CHPF South Bunbury is clearly identified.
[91] In respect of paragraphs 41(d) and 83, this pleading is central to the dispute between the parties as to whether and on what basis the DA was superseded by the DA2. While this is a controversial issue between the parties, the pleading sets out the alternative bases relied upon to support CHPF South Bunbury's contention. The pleading is clear, and it is difficult to see how the plaintiff could be taken by surprise in relation to it. I am not satisfied that there is any basis to strike out or to order the provision of further particulars in respect of the pleading in these two paragraphs.
[92] The plaintiff also raises concerns in respect of the following additional paragraphs of the 2FAD that are relevant under this broader issue. CHPF South Bunbury addresses each of these paragraphs in turn:
[71]
(a) Paragraph 18BK(d)(ii) of the 2FAD:
(i) The plaintiff did not raise any issue with this paragraph in the rule 444 letter.
(ii) The pleading is as follows:
[72]
"if required, Lautaret can direct a variation under the Building Contract to cause the Land to be developed in accordance with [CHPF South Bunbury's] obligations under the [Agreement for Lease] and procure the construction of the Landlord's Works on the Land in accordance with PTB2[30] (subject to permitted changes)".
[73]
(iii) In submissions CHPF South Bunbury identify clauses 2.1(a), 36.1 and 36.5 of the Building Contract as the basis of this plea.
(b) Paragraph 83A of the 2FAD:
(i) Whilst the application seeks relief in respect of all of paragraph 83A of the 2FAD, the plaintiff's submissions only address subparagraph 83A(c).
(ii) The pleading in subparagraph 83A(c) states "before the Termination Date, the works were not completed and the Proposed Plans were subject to further change".
(iii) The plaintiff's complaint is that it is not pleaded what the changes were, how the changes were made, and how the changes had contractual effect. CHPF South Bunbury says that this complaint is misplaced. There are no specific changes but rather all the plans are subject to change. This includes possible variations of the Landlord's Works under clause 3.2 of the Agreement for Lease.
(c) Paragraph 83C of the 2FAD:
(i) The pleading in the 2FAD responds to paragraph 82A of the 4FASOC.
(ii) The plaintiff's criticism appears to be in respect of the cross-reliance on the response to the Schedule to the 4FASOC in paragraph (a) and the pleading in response to the "chapeau" in subparagraph (c).
(iii) In respect of subparagraph (a), this is in response to the incorporation of the plaintiff's Schedule in the 4FASOC at paragraph 82A. In these circumstances it is submitted there is nothing objectionable in the pleading.
(iv) In respect of subparagraph (c), this is a direct response to the chapeau to paragraph 82A of the 4FASOC, which itself is not clearly pleaded. Further, it is in effect a general pleading in response to a general pleading and the particulars of the response are then contained in the Schedule.
(d) Paragraph 83E of the 2FAD:
(i) The pleading in paragraph 83E of the 2FAD is a response to paragraph 82BA of the 4FASOC.
(ii) The plaintiff's complaint is that the defence pleads "evasive generalisations". CHPF South Bunbury submits that the pleading in paragraph 83E of the 2FAD responds to each allegation in paragraph 82BA of the 4FASOC and also relies on the response in the Schedule.
(e) Paragraphs 175(e)(vii), 176(b)(iii), 178(a) and 180 of the 2FAD:
(i) In respect of each of 175(e)(vii), 176 (b)(iii), 178(a) and 180 of the 2FAD the plaintiff complains that the pleading does not include what the changes were, how the changes were made, and how the changes had contractual effect.
[74]
[93] In respect of paragraph 83C, 83E, 175(e)(vii), 176(b)(iii), 178(a) and 180 of the 2FAD, I am not satisfied that there is a basis to strike out any of those paragraphs or to order that further and better particulars be provided. This conclusion is subject to any further particulars of the Schedule to be provided, as discussed under the next heading.
[75]
[94] If any further particulars are provided in respect of the Schedule, further consideration may need to be given to the "overarching pleas" in these paragraphs.
[95] In respect of 83A(c) of the 2FAD, CHPF South Bunbury's pleading is not so deficient to warrant it being struck out. However, it is appropriate that further particulars be provided where the explanation provided by CHPF South Bunbury in submissions relies on matters not pleaded, including but not limited to possible variations of the Landlord's Works under clause 3.2 of the Agreement for Lease.
[96] This approach is consistent with r 5 of the UCPR and the aim of Practice Direction Number 2 of 2024 to clearly identify the real issues in dispute between the parties.
[97] CHPF South Bunbury should provide further and better particulars of the provisions of the Building Contract, the Agreement for Lease or other document that may give rise to the further changes referred to in paragraph 83A(c) of the 2FAD.
[98] In respect of paragraph 18BK(d)(ii) of the 2FAD, CHPF South Bunbury's pleading is not so deficient to warrant it being struck out. However, it is appropriate that further particulars be provided where the explanation provided by CHPF South Bunbury in submissions relies on matters not pleaded, including clauses 2.1(a), 36.1 and 36.5 of the Building Contract.
[99] This approach is consistent with r 5 of the UCPR and the aim of Practice Direction Number 2 of 2024 to clearly identify the real issues in dispute between the parties.
[100] CHPF South Bunbury should provide further and better particulars of the basis on which it is alleged that:
[76]
(a) Lautaret could direct a variation under the Building Contract; and
(b) how such a variation would cause the land to be developed in accordance with CHPF South Bunbury's obligation under the Agreement for Lease and procure the construction of the Landlord's Works on the land in accordance with "PTB2 (subject to permitted changes)".
[77]
[101] The above analysis equally applies to the equivalent paragraph of the Centuria AD: paragraph 18BK.
[78]
Are there deficiencies in paragraphs 174, 175, 176 and the Schedule in respect of the alleged breaches of the Agreement for Lease?
[79]
[102] The third broad issue to be considered is whether CHPF South Bunbury does not properly traverse the plaintiff's allegations that it breached the Agreement for Lease. This requires consideration of paragraph 174, the Schedule, and paragraphs 175 and 176 of the 2FAD.
[103] The plaintiff seeks to strike out these paragraphs and the entire response to the Schedule.
[104] In respect of the response to the Schedule, CHPF South Bunbury served the response to the Schedule on 5 November 2024 and the plaintiff filed a response on 13 December 2024. It was not until 6 June 2025 that the plaintiff indicated that it would apply to strike out the entirety of the response to the Schedule.
[105] CHPF South Bunbury submits that this chronology is relevant to considering the plaintiff's complaints. Further, Counsel for CHPF South Bunbury at the hearing indicated that if the Court would be assisted by narrowing the issues, the defendant was amendable to that.[31] It was recognised however, that CHPF South Bunbury was responding to what was raised by the plaintiff: that is, the Schedule to the 4FASOC "sets the tone".[32]
[106] The response to the Schedule was provided using the best endeavours to get it done within the ordered timetable, with an extension being required to get it done. It is accepted that it could be improved. However, given the substantial matters pleaded and the termination of the agreements, CHPF South Bunbury's primary position is that a further response is not required.[33]
[107] However, if the Court considered some further refinement of the matters in the Schedule that could be undertaken. It was also recognised that, unlike other building cases, these proceedings do not involve a building that has been built and then considered in hindsight. Rather, this involves a claim brought before the building was finished and there were entitlements under the contractual documents to make variations in certain circumstances.[34]
[108] In respect of paragraph 174 and the Schedule, the plaintiff complains that it "requires the plaintiff to guess for each of the 115 items in the Schedule" what work was done, the relevant requirements of the Agreement for Lease, and why a variation was permitted.
[80]
(a) It was building the Landlord's Works in accordance with the Project Approvals pursuant to paragraph 3.1(a)(ii)(A).
(b) Clauses 3.2(a) and (b) of the Agreement for Lease permitted varying the Landlord's Work without the plaintiff's consent where the variations were not a substantial alteration.
(c) The plaintiff's Schedule to the 4FASOC identifies where the plaintiff says CHPF South Bunbury undertook a substantial alteration.
(d) The response to the Schedule includes a response to those identified alterations on the basis that the variations were permitted under clause 3.2(a) of the Agreement for Lease.
(e) Therefore, there has been a proper traverse of the issue.
[81]
[110] CHPF South Bunbury submits that the question of whether substantial variations were made by consent should be determined on all of the evidence at the trial. Accordingly, it is submitted it would be inappropriate to strike out the response to the Schedule in its entirety.
[111] In respect of paragraph 174(c) the plaintiff raises a separate complaint. The plea at paragraph 174(c) of the 2FAD is "further or in the alternative" and arises if the position is found to be contrary to CHPF South Bunbury's primary position. That is:
[82]
"further or in the alternative, if (which is denied) the requirements of the [Agreement for Lease] included any of the PTB1, PTB1 Drawings, DA, or DA Drawings, then [CHPF South Bunbury]:
[83]
(i) has caused up to the Termination Date; or
(ii) in the alternative, before the Termination Date, intended to cause,
[84]
the Landlord's Works to comply with those requirements, as varied in accordance with clause 3.2 of the [Agreement for Lease] or, in the case of the DA and the DA Drawings, in accordance with any subsequent variations to, or replacement of them."
[85]
[112] The complaint is that this cannot be correct as there are admitted differences between PTB1[35] and PTB2 and also between the DA and the DA2.
[113] CHPF South Bunbury says that there is nothing objectionable in this pleading. In respect of PTB1 and PTB2, the plaintiff says that the differences are substantial, and the defendant says they are not. If the differences are not substantial, then performing the Landlord's Works in accordance with PTB2 would result in there only being non-substantial alterations to PTB1.
[114] Further, in respect of the DA, CHPF South Bunbury's position is that it intended to perform the Landlord's Works in accordance with the DA2, and the DA2 is a variation of the DA.
[115] In respect of paragraph 175 of the 2FAD, the plaintiff's complaint in respect of this broad issue is that "[t]he contents of the proposal and the basis on which Queensland Health would consider it are not pleaded".
[116] In response CHPF South Bunbury says:
[86]
(a) The defendant's position is that, as at the Termination Date, it intended to cause the Landlord's Works to comply with Part MP5.5 of the Queensland Development Code (as pleaded in paragraph 83C(i) of the 2FAD). This was because the Hospital was still being built.
(b) It is not pleaded that a proposal had been prepared. Rather, Queensland Health would consider a proposal on the basis of the matters pleaded at paragraphs 175(g)(ii) and (iii) of the 2FAD.
[87]
[117] In respect of paragraph 176 of the 2FAD, the plaintiff also seeks to have this paragraph struck out. It appears that this complaint mirrors that considered in respect of the second issue. The position of CHPF South Bunbury is that there are differences in the Landlord's Works, but they are immaterial or not substantial and are therefore permissible variations pursuant to clause 3.2 of the Agreement for Lease.
[118] It is clear that there is a real dispute between the parties that can and should only be determined at trial. The pleading of these parts of the 2FAD are not deficient such a as to justify striking out those parts of the 2FAD. Further, that would not assist in identifying the real issues in dispute.
[119] At the hearing the plaintiff sought to rely on a document "Examples Defendant's Response to the Schedule".[36] As CHPF South Bunbury had not had the opportunity to consider the document, directions were made to allow time for a response and a reply.
[120] CHPF South Bunbury filed a document described as an "Outline of Submissions for the Defendant in Response to the Plaintiff's Example Document".[37] The plaintiff filed a document in reply described as "Plaintiff's Reply to Defendant's Outline of Submission to Plaintiff's Example Document".[38]
[121] Two "preliminary points" are raised by CHPF South Bunbury:
[88]
(a) First, that the plaintiff's document contains the first articulation of complaints with specificity in respect of 26 items. However, complaints in respect of 89 items remain unarticulated.
(b) Secondly, the continued utility of the Schedule in the proceedings is doubtful.
[89]
[122] In respect of the second matter, since the termination of the Agreement for Lease the focus of the real issues between the parties is likely to have shifted. CHPF South Bunbury articulates the position as:
[90]
(a) If the Agreement for Lease has been terminated, there is no longer any obligation to perform the Landlord's Works and compliance with the contractual standard is no longer relevant.
(b) If the Agreement for Lease was wrongfully terminated, then the plaintiff could claim the loss of the entire value of "its bargain", rather than individual breaches of the contractual standard as are articulated in the Schedule.
[91]
[123] In the "Outline of Submissions for the Defendant in Response to the Plaintiff's Example Document", CHPF South Bunbury does go on to address matters of detail in respect of the example items.
[124] The plaintiff has provided a detailed reply to both the "preliminary points" and in respect of the example items.
[125] The plaintiff takes issue with whether this is the first articulation of the complaints. However, even if that is correct there is some benefit if now the parties have more clearly identified the scope of the complaint and their respective positions.
[126] Further, the plaintiff does not accept the proposition that the Schedule will become redundant and submits that the Schedule has continued utility. The plaintiff maintains that there is no factual basis pleaded for the supposed case articulated by CHPF South Bunbury.
[127] It appears that there remains a fundamental disconnect between the parties as to the issues in dispute between them and at the moment there remains utility in the parties engaging on the items identified in the Schedule.
[128] As identified above, as the matters are case managed on the Building, Engineering and Construction List, thought should be given to a statement of issues separate from the pleadings which clearly identifies the real issues in dispute between the parties.
[129] There appears to be utility in the parties being required to frame a statement of issues between the parties, and also to refocus the Schedule in a way that identifies particular issues so that it operates to identify the real issues in dispute in respect of each item.
[130] It is readily apparent that the detailed response and reply on the example items highlights that some refocused schedule is required so that all of the relevant and necessary details are in one place rather than being dealt with in a piecemeal fashion. In respect of some items, it is also apparent that this is the first time that the parties are engaging on the real issue between them. This has the benefit of crystallizing what is in dispute, and also narrowing the issues.
[92]
Is the proposed pleading in paragraphs 73 and 106 of the Lautaret Defendants' proposed further amended defence deficient?
[93]
[131] The plaintiff's application sought to strike out paragraphs 9, 26, 65, 73, 106 and 130 of the Lautaret AD.
[132] In response to the complaints raised by the plaintiff, the Lautaret Defendants proposed a further amended defence (Proposed Further Amended Defence).[39] The Proposed Further Amended Defence largely meets the plaintiff's complaints, with only three paragraphs remaining contentious: paragraphs 65, 73 and 106.
[133] At the hearing paragraph 65 was agreed on the basis that some words were deleted from the Proposed Further Amended Defence. Subject to anything that arises out of these reasons in relation to the other defendants, it is not necessary to further consider paragraph 65.
[134] It is necessary to consider paragraphs 73 and 106 of the Proposed Further Amended Defence.
[135] In respect of paragraph 73 of the Proposed Further Amended Defence, the plaintiff complains that the proposed amendment offers documents as particulars which are in fact a plea of evidence, but the particulars needed are by whom and how various alleged things were "concluded", "determined", and 'commissioned". That is: who, what and when.
[136] The paragraph deals with the acceptance of PTB2 as a contract document for the purposes of the Building Contract.
[137] The Lautaret Defendants submit that the proposed pleading in respect of paragraph 73 clarifies the position with respect to the differences between the February Amended PTB and PTB2. The admitted emails and the superintendent's determination under the Building Contract are relevant to this.
[138] Relevantly, the Builder considered, and the superintendent decided, that the relevant contractual document under the Building Contract was the February Amended PTB. Consequently, a comparison was undertaken between the February Amended PTB and PTB2 and the differences were not relevant to the delivery of the contract works. The particulars include a schedule of the comparison of the February Amended PTB and PTB2.
[139] It is difficult to understand the plaintiff's complaint in respect of the proposed paragraph 73. It does clearly address who, what and when. The relevant underlying documents are properly included as particulars.
[140] Whilst further particulars are said to be provided after expert evidence, in a complex construction case such as this that is not unusual or objectionable in itself.
[94]
(a) The pleading in the Lautaret AD was that the "Development Agreement was purportedly terminated by CHPF South Bunbury".
(b) The Proposed Further Amended Defence provides as follows:
[95]
"As to paragraph 23 of the statement of claim, the defendants:
[96]
(a) admit that on or about 15 September 2021, CHPF and Lautaret entered into the Development Agreement;
(b) admit that, by the Development Agreement, Lautaret agreed to develop the Land;
(c) say that, on 28 January 2025 CHPF sent Lautaret a notice to remedy referencing clause 14.1 of the Development Agreement;
(d) say that, on 26 February 2025, Lautaret sent CHPF a response to notice to remedy referencing clause 14.1 of the Development Agreement; and
(e) say that, on 11 March 2025, CHPF issued Lautaret a Development Agreement Termination Notice referencing clause 14.1(a)(ii) of the Development Agreement."
[97]
[143] The plaintiff's complaint was the use of the word "purportedly" and a lack of particulars. The Lautaret Defendants submit that the Proposed Further Amended Defence expands the pleading to address the complaints.
[144] The plaintiff contends that the pleading is of no relevance unless the Lautaret Defendants say it has some legal significance. The plaintiff submits that if the Lautaret Defendants are going to rely on the termination, they need to plead it properly.
[145] The criticism raised by the plaintiff has some merit. The reader is left none the wiser about whether the Lautaret Defendants contend that the Development Agreement was validly terminated or not. As identified in respect of the consideration of the termination issue previously in these reasons, the position of Lautaret in the Notice of Dispute and the letter dated 26 February 2025 appears to be that it does not accept that there was a valid basis to terminate the Development Agreement.
[146] If it is contended that the Development Agreement was invalidly terminated, that needs to be pleaded. Equally, if it is contended that the Development Agreement was validly terminated, that needs to be pleaded. That may in turn have an impact on the pleadings in the 2024 proceeding, as well as the 2022 proceeding. The position of Lautaret needs to be clarified as soon as possible.
[98]
[147] As indicated earlier in these reasons, a way forward would be for the parties to confer and file and serve an agreed statement of the issues in dispute between the parties. It is anticipated that this will extrapolate the issues from the pleadings in a clear, concise and logical form.
[99]
[148] To get to that point the following steps may be appropriate:
[100]
(a) By an identified date Counsel for the parties confer for the purpose of preparing a draft statement of the issues, which is to identify and summarise the key issues in dispute in the pleadings in the 2022 proceeding.
(b) By an identified date Counsel for the parties confer for the purpose of preparing a draft statement of the issues, which is to identify and summarise the key issues in dispute in the pleadings in the 2024 proceeding.
(c) The plaintiff is to file the draft statement of issues in each of the 2022 proceeding and the 2024 proceeding by an identified date. If the parties cannot agree on the contents of the draft statement, the statement filed must describe the areas of disagreement.
[101]
[149] At this stage of the proceedings, this appears to be the most efficient way to progress the 2022 proceeding and the 2024 proceeding. It will also assist in identifying whether the 2022 proceeding and the 2024 proceeding should be dealt with consecutively, concurrently, or consolidated to some extent.
[150] Once lay and expert evidence have been exchanged, further consideration can then be given to whether it is most efficient at that time for the parties to refine the pleadings or whether the matters proceed by way of the statements of issues.
[102]
[151] The parties are to prepare draft orders in light of these reasons and provide them to my Associate.
[152] If draft orders cannot be agreed, then alternative orders should be provided with a brief explanation of the difference in positions, of not more than 2 pages.
[153] The Court will hear further from the parties as to costs.
[103]
[1] The application incorrectly referred to paragraph 189, but it was understood to be a reference to paragraph 180. The plaintiff sought to make this correction at the hearing. See also T1-57 L 31 to 42.
[104]
[2] Which was engaged under a building contract by Lautaret Pty Ltd on behalf of CHPF South Bunbury pursuant to a Development Agreement.
[105]
[3] Affidavit of John Cooper sworn 20 June 2025 at Exhibit JBC-1, pages 50 to 55.
[106]
[8] The termination of the Development Agreement and the Agreement for Lease occurred after the proceedings were commenced.
[17] At [2] of Practice Direction Number 2 of 2024 "Building, Engineering and Construction List".
[116]
[18] The equivalent paragraphs are 23, 30A, 30B and 30C of the Centuria AD.
[117]
[21] And possibly the related proceeding between the builder and Lautaret.
[118]
[22] Affidavit of John Cooper sworn 20 June 2025 at Exhibit JBC-1, pages 109 to 126. The Notice to Remedy states that capitalised terms used within the letter have the same meaning given to them in the Development Agreement.
[119]
[23] Affidavit of John Cooper sworn 20 June 2025 at Exhibit JBC-1, pages 131 to 133.
[120]
[24] Affidavit of John Cooper sworn 20 June 2025 at Exhibit JBC-1, pages 134 to 136.
[121]
[25] The meaning of capitalised terms in the Agreement for Lease are adopted in these Reasons without being repeated.
[122]
[26] Affidavit of John Cooper sworn 20 June 2025 at Exhibit JBC-1, pages 234 to 244.
[123]
[27] CHPF South Bunbury contends that the proper construction of condition 3 of the referral agency conditions and the Development Agreement SARA Drawings did not indicate or require pathology services, a lift or pharmacy in the Heritage Building.
[124]
[28] Express consent or not providing a further Notice of Objection within 10 days.
[125]
[29] The particulars to paragraph 83(a) are relied upon as showing that the "minor changes" referred to in the email chain are consistent with the differences between the DA and the DA2. See T1-79 L 35 - 45.
[126]
[30] PTB2 refers to the revised Project Technical Brief, which exhibited to the Affidavit of Clive Jeremy Hamilton Scott sworn 21 January 2025 at pages 365 to 1038.
[39] Affidavit of Sarah Ann Ewing affirmed 20 June 2025 at Exhibit SAE-1, pages 19 to 82.
Legislation Cited (2)
Civil Procedure Rules 1999
Health Facilities Act 1999
Cases Cited (7)
(1964) 112 CLR 125
(2000) 201 CLR 552
(2006) 226 CLR 256
(2010) 241 CLR 118
(2012) 293 ALR 537
(1972) 126 CLR 507
(1949) 78 CLR 62
[34] The current pleadings establish that there is a real question to be determined on the pleading and the rights of the parties depend on it. In these circumstances, it would not be appropriate to summarily dismiss or to strike out the 2AD without leave to replead.
[35] Keeping in mind the objectives and aim of r 5 UCPR and Practice Direction Number 2 of 2024, it is appropriate to consider the paragraphs identified in each of the applications to determine whether they are deficient and whether the deficiency should be rectified by:
[65] It is apparent from the lack of a true traverse on this issue in the 2024 proceeding that some further engagement on this issue is required in both the 2022 proceeding and the 2024 proceeding. Accordingly, the same applies in respect of paragraph 23(d) of the Centuria AD.
[66] What is required is, at least, the provision of further and better particulars by CHPF South Bunbury in the 2022 proceeding and the Centuria Companies in the 2024 proceeding as to:
(ii) The plaintiff's complaints include that the pleading is "evasive and meaningless" and refers to an unidentified email with unidentified plans.
(iii) In response, CHPF South Bunbury says five relevant emails are identified. The whole email chain is relevant. It is on the basis of the contents of the email chain that it is contended that the plaintiff consented or there is deemed consent to the variations that are constituted by DA2.[29]
(e) Paragraph 83F of the 2FAD:
(i) In respect of paragraph 83F(c) the plaintiff complains that the meaning of "minor change" is not pleaded.
(ii) The specific pleading is pointed to, namely:
(A) at (i): "... Judge Coker made orders on 11 December 2023 in respect of DA2 upon being satisfied that the changes contained in DA2 were a minor change to [DA] within the meaning of the Planning Act 2016 (Qld)."
(B) at (ii): CHPF South Bunbury "denies the allegations and believes they are untrue because building the works in the DA and the DA Drawing would comply with DA2, subject to minor changes."
(iii) The pleading of "minor changes" is the meaning in the Planning Act 2016 (Qld) in both instances.
(ii) These paragraphs are in effect the general pleading that gives the framework for the responses in the Schedule. By pleading in this way, CHPF South Bunbury seeks to avoid having to set out in a repetitive way the same responses in the Schedule.
(iii) In respect of subparagraph 175(e)(vii) of the 2FAD:
(A) The pleading in respect of subparagraph 175(e)(vii) needs to be considered in the wider context of the pleading in paragraph 175(e) of the 2FAD.
(B) The plaintiff contends that the Australasian Health Facility Guidelines are to be complied with by CHPF South Bunbury in causing the Landlord's Works to be performed. In contrast, CHPF South Bunbury contends that the Australasian Health Facility Guidelines are merely guidelines and are not prescriptive or mandatory requirements as pleaded in paragraph 175(e)(v) and (vii) of the 2FAD.
(C) The plea in subparagraph 175(e)(vii) of the 2FAD is that, to the extent that any of the matters contained in the Australasian Health Facility Guidelines are requirements with which CHPF South Bunbury must comply in carrying out the Landlord's Works, CHPF South Bunbury caused or intended to cause in the period up to the Termination Date the Landlord's Works to comply with the Australasian Health Facility Guidelines as varied in accordance with clause 3.2 of the Agreement for Lease and repeats the plea at paragraphs 83C(f) and 174(b).
(D) The specific response in respect of alleged non-compliance with the Australasian Health Facility Guidelines is in the Schedule, where relevant.
(E) From the pleading in paragraph 175(e), the plaintiff is able to understand CHPF South Bunbury's case.
(iv) In respect of subparagraph 176(b)(iii) of the 2FAD:
(A) The pleading in this paragraph deals with where there is a difference between what was being built and some other standard that the plaintiff alleges was a requirement of the Agreement for Lease.
(B) CHPF South Bunbury's plea relies on clause 3.2 of the Agreement for Lease. The plea in paragraph 176(b)(ii) is that every such difference was immaterial or not substantial. The plea in paragraph 176(b)(iii) is further, or in the alternative, any differences were a variation permitted by clause 3.2 of the Agreement for Lease.
(C) The plea relates to those differences that are identified by the plaintiff in the Schedule and the corresponding response is set out in the Schedule.
(v) In respect of subparagraph 178(a) of the 2FAD:
(A) No complaint was raised in respect of paragraph 178(a) of the 2FAD in the rule 444 letter.
(B) The plaintiff complains that the plea is that pre-existing design documents had a contractual effect. CHPF South Bunbury submits that the plea is that they do not have any contractual effect.
(vi) In respect of paragraph 180 of the 2FAD:
(A) The plaintiff's complaint is that, by the plea in paragraph 180, CHPF South Bunbury evades engaging on the issue concerning the space on the top two floors that were no longer being built.
(B) It is clear that there is a significant dispute between the parties in respect of this issue and whether it formed part of the Landlord Works. This is a matter ultimately to be determined at trial.
[109] In response CHPF South Bunbury says:
[141] Accordingly, there is no basis of the plaintiff's complaint in respect of paragraph 73 of the Proposed Further Amended Defence.
[142] In respect of paragraph 106 of the Proposed Further Amended Defence: