McCarthy & Chatterton v ACT Property Inspections Pty Limited

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	McCarthy & Chatterton v ACT Property Inspections Pty Limited
Citation:	[2024] ACTSC 131
Hearing Date:	15 March 2024
Decision Date:	2 May 2024
Before:	Taylor J
Decision:	See [62].
Catchwords:	PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Defendant seeks to strike out paragraphs of the plaintiffs’ Statement of Claim – whether the pleading fails to comply with the procedural rules – whether aspects of the pleadings are embarrassing and/or non-compliant with the Court Procedures Rules 2006 (ACT) – application granted in part
Legislation Cited:	Civil Law (Sale of Residential Property) Act 2003 (ACT), ss 9(1)(h)(iii), 19 Court Procedures Rules 2006 (ACT), rr 406, 407, 425, 433, 440(5)
Cases Cited:	Ezekial-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 29 Szanto v Bainton [2011] NSWSC 985 Picos v Commonwealth Bank of Australia [2015] ACTSC 56 Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160
Parties:	B McCarthy (1^st Plaintiff) R Chatterton (2^nd Plaintiff) ACT Property Inspections Pty Limited (ACN 600 397 466) ( Defendant)
Representation:	Counsel J Moffett ( 1st Plaintiff) J Moffett ( 2nd Plaintiff) B Buckland ( Defendant)
	Solicitors Hijazi Curran Cameron Lawyers ( Plaintiff) McGilvray Law ( Defendant)
File Number:	SC 473 of 2022

TAYLOR J:

Introduction

1․ The plaintiffs purchased a home in Kambah in August 2022. As part of the process of the sale of the property the defendant authored a Building and Compliance Inspection Report (the ‘Report’) in August 2022. Pursuant to s 9(1)(h)(iii) of the Civil Law (Sale of Residential Property) Act 2003 (ACT) (the Act) the Report is a “required document” in contracts for the sale of residential property under that Act. In short summary, the plaintiffs allege that there was significant active and historical termite damage to the property, discovered after the purchase of the property was finalised, which was not disclosed or referred to within the Report.

2․ By way of originating claim filed on 10 October 2023 the plaintiffs claim a breach of statutory duty and that the defendant is liable, pursuant to s 19(1)(a) of the Act, to compensate the plaintiffs for loss and damage. In the alternative, the plaintiffs claim that the defendant owed them a duty of care to provide reasonable skill and care when compiling, writing and publishing the Report upon which the defendant knew or ought to have known, the plaintiffs would rely.

3․ The plaintiffs claim the cost of demolishing the property, the cost of rebuilding the property, the cost of alternative accommodation during the demolition and rebuilding of the property and the cost of the impugned Report as well as interest and costs.

Application to strike out paragraphs of the statement of claim

4․ By way of an application filed on 5 March 2024, the defendant seeks an order striking out portions of the Statement of Claim (SOC) filed on 10 October 2024. The paragraphs subject of the application to strike out are: 13, 17, 18, 19, 28, 29, 30, 31, 32, 33, 34, 40 and 41. The application is brought pursuant to r 425(1) of the Court Procedures Rules 2006 (ACT) (the Rules) which provides:

425 Pleadings—striking out

(1) The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or

(b) may tend to prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the court.

Note 1 The registrar may also reject a document that is filed if it does not comply with these rules (see r 6140 (Rejecting documents—noncompliance with rules etc) or if it is an abuse of the court’s process or is frivolous or vexatious (see r 6142 (Rejecting documents—abuse of process etc)).

Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

Note 3 Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.

(2) The court may receive evidence on the hearing of an application for an order under this rule.

(3) If the court makes an order under this rule, it may also make any other order it considers appropriate, including, for example—

(a) if the court makes an order under subrule (1) (a)—an order staying or dismissing the proceeding or entering judgment; and

(b) an order about the future conduct of the proceeding.

5․ The defendant asserts that the identified paragraphs are embarrassing, pursuant to r 425, in that they are “unintelligible, ambiguous, or so imprecise in [their] identification of material factual allegations as to deprive the defendant of proper notice of the real substance of the claim”: Ezekial-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 29 at [66] citing Szanto v Bainton [2011] NSWSC 985 as cited in Picos v Commonwealth Bank of Australia [2015] ACTSC 56 (‘Picos’) at [48].

6․ Further, the defendant complains that specific paragraphs are non-compliant with the Rules, namely rr 406 and 407, in that they plead a breach of a duty of care and statutory duty but do not specifically plead the facts and circumstances of those alleged breaches.

7․ Rules 406 and 407 relevantly provide:

406 Pleadings—statements in

(1) Each pleading must—

(a) be as brief as the nature of the case allows; and

(b) contain a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved; and

(d) subject to rule 419 (Pleadings—other relief), state specifically any relief the party claims; and

(e) if a claim or defence under a statute is relied on—identify the specific provision of the statute.

407 Pleadings—matters to be specifically pleaded

(1) Without limiting rule 406, the following matters must be specifically pleaded:

(a) breach of statutory duty;

Note See r 432 (Pleadings—negligence and breach of statutory duty).

(b) damages of every kind claimed, including, for example, special and exemplary damages;

Note See also r 417 (Pleadings—kind of damages etc).

……..

(k) negligence or contributory negligence;

Note See r 432 (Pleadings—negligence and breach of statutory duty).

8․ The plaintiffs resist the application and contends that the further and better particulars provided to the defendant on 24 November 2022 (the ‘Particulars’), consistent with sub-r 2 of r 433 of the Rules, cured any ambiguity or imprecision arising from the crafting of the pleadings such that the defendant is on notice of the substance of the claim and the case it must meet. In support of this assertion, the plaintiffs point to the defence filed on 18 February 2023 as demonstrating an understanding of the claim and a substantive response to, and engagement with, those matters pleaded.

Principles

9․ It is useful at the outset to extract what was said by McWilliam J in Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 at [66]-[71]:

66.  The starting point is the originating claim, which must “state briefly and specifically the nature of the claim made and relief sought”: r 50 of the Rules.
67.  The statement of claim is the “pleading” of the case (it is one of documents listed in the Dictionary to the Rules as being a pleading).
68.  The purpose of a pleading is to expose the case the party intends to run.  Properly exposing the case to be pursued has been described as falling within a party’s obligations under s 5A of the Court Procedures Act 2004 (ACT): Bolas v Calvary Health Care ACT Ltd [2016] ACTSC 58 at [17].
69.  A pleading has formal requirements under the Rules (rr 405-407). Of relevance to the pleading here are the following:

(a) The pleading must be in writing.

(b) Each matter (or allegation) must be in a separate paragraph.

(d) If the plaintiff seeks relief in relation to 2 or more distinct claims based on different grounds, they must be stated, as far as possible, separately.

(e) A breach of statutory duty must be specifically pleaded (that means, the pleading must set out the provision of the statute in question and the duty under it).

(f) Negligence must be specifically pleaded.

70. Under r 432, if a party pleads negligence or breach of statutory duty, the particulars of the pleading must “state the facts and circumstances of the negligent act or omission or breach of statutory duty”.
71. That means it is not enough to allege simply that a defendant breached its duty of care or breached its statutory duty. Under that allegation, particulars of the allegation must be provided, setting out what the defendant either did or did not do, which is said to constitute the relevant breach.

10․ In Picos at [48] Mossop M (as his Honour then was) considered what constitutes an embarrassing pleading (emphasis added):

The various ways in which a pleading may be embarrassing were outlined by Johnson J in McGuirk v The University of New South Wales [2009] NSWSC 1424 at [30]-[35]. In Szanto v Bainton [2011] NSWSC 985 Ward J summarised the position as follows (at [107]):

What is meant by an embarrassing pleading in the context of an application such as the present relates, in essence, to whether the pleading can serve the function of a pleading under the Rules - namely, in succinct fashion, to put the defendant properly on notice of the real substance of the claim made against it and to know what case it is that the defendant has to meet. Thus a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence (Gunns Ltd v Marr [2005] VSC 251 at [14]-[15]) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393; (2004) 51 ACSR 278; at [18]).

Consideration

11․ The SOC particularises that the plaintiffs claim damages for breach of statutory duty and “additionally, or alternatively, damages for breach of a common law duty of care”. The SOC sets out that the breach of statutory duty alleged arises out of s 19 of the Act which provides:

19 Compensation to buyer for false report etc

(1) This section applies if—

(a) a person buys residential property under a contract; and

(b) a statement or report mentioned in section 9 (1) (h) (ii), (iii) or (iv) or in section 10A (7), definition of later required documents, paragraph (a) (iv), (c) (i) or (ii), is made available to the buyer; and

(c) the statement or report is false or misleading in a material particular or is otherwise prepared without the exercise of reasonable skill and care; and

(d) because of that, the buyer incurs loss or expense.

(2) The person who prepared the statement or report is liable to compensate the buyer for the loss or expense.

12․ The Report authored by the defendant is a “required document” pursuant to s 9(1)(h)(iii) of the Act and was made available to the plaintiffs. The SOC asserts that the defendant’s Report “contained several false or misleading facts in a material particular and/or was prepared without the exercise of reasonable skill and care in contravention of s 19(1)(c) of the Act”.

13․ The “breach of duty” in addition, or in the alternative, is expressed as “a risk of harm and loss to be addressed by the defendant was foreseeable, not insignificant and such that in the circumstances, any person with reasonable skill and care would have taken reasonable precautions”. Three reasonable precautions against the risk of loss and harm are identified in the SOC.

14․ It is convenient to set out each paragraph the defendant seeks to have struck out.

Paragraph 13

15․ Paragraph 13 states:

On 24 October 2022 the Plaintiffs observed significant damage caused by active and historical termite activity at the Property.

16․ The pleading is said to be impermissibly broad and embarrassing, failing to specify the precise location or extent of the damage and how it is known that the damage is historical. The defendant asserts that the Particulars do not cure the deficiency and, further, demonstrate inconsistency. This inconsistency is said to arise from the plaintiffs claiming that the termite damage was observed in the windowsill and timber reveals of the window to Bedroom One, before going on to state that the damage was also located in other areas of the property. The consequence, the defendant claims, is that they are unable to identify the termite damage the Report failed to capture and therefore they cannot meet the plaintiffs’ case.

17․ The Particulars provide that on 24 October 2022 the plaintiffs observed termite damage to the windowsill and timber reveals in the window to Bedroom One. Specifically, the Particulars assert that plaintiffs saw “a thin veneer of timber remaining, with the rest being a hollow shell” and that these observations are indicative of historical termite damage. The plaintiffs, at the time of the hearing of this application, had yet to receive an expert report which would address the nature and extent of the termite damage to the property. The Report subject of the claim is said to make no mention of any termite damage, historical or otherwise. The plaintiffs anticipate that the expert report will speak to those matters about which they are inexpert, in particular the “historical” nature of the termite damage and the capacity for any termite damage to be observed at the time the Report was completed.

18․ It is the case that the Particulars claim termite damage in addition to that said to exist at the window of Bedroom One. The Particulars identify with some precision that the ensuite window, ceiling joists immediately adjacent to the manhole, top plates and roof battens, subfloor structure and piers, the area under Bedroom One and the carport all present as affected by termite damage. To the extent that there is inconsistency between paragraph 13 and other pleadings contained in the SOC, the Particulars set out those areas said to reveal termite damage absent from the contents of the Report authored by the defendant and relied upon by the plaintiffs.

19․ On its own, paragraph 13 lacks clarity about the nature and extent of the “significant damage” alleged. I am satisfied that the Particulars make clear to the defendant the extent of the “significant” termite damage, observed by the plaintiffs, that they claim the Report failed to capture. Accordingly I am satisfied that the defendant is on notice about the substance of the claim with respect to the extent of the termite damage said to exist in the property at the time the Report was completed, observed by the plaintiffs.

20․ Paragraph 13 should not be struck out.

Paragraph 17

21․ Paragraph 17 states:

The Report;

Contained several false or misleading facts in a material particulars; and/or
Was prepared without the exercise of reasonable skill and care in contravention of section 19(1)(c) of the Act.

22․ The defendant submits that this pleads a legal conclusion without identifying the underlying facts in support of the claim. The pleading is said to lack clarity about those parts of the Report said to be misleading or false and about what a reasonable person in the position of the defendant ought to have done when exercising due care and skill when preparing the Report.

23․ In the Particulars the plaintiffs extracted various parts of the Report said to be false, at pages 6, 8, 9, 10, and 23, and provided the basis for the contention that the statements are false.

24․ The Particulars record that at page 6 the Report records the following:

NOTE. Inspection around the eaves was restricted due to a low pitch and clearance to allow bodily access in this area. This allows only for a limited visual Inspection to be carried out. Other restrictions found in the roof void: insulation on top of ceiling restricting visual inspection of the ceiling framing. Ducting flex throughout the roof space restricting access in areas.
The visual inspection of the subfloor framing was restricted in areas due to under floor ducting installed and low crawl space.

25․ The Particulars assert that these statements at page 6 of the Report are demonstrably false in that the roof void was easily accessible, that flexible ductwork did not conceal the ceiling joints on either side of the manhole and that the subfloor area had adequate ground clearance.

26․ The Particulars record that at page 8 the Report records the following:

Bedroom 1 windows was noted as “good”. Good is defined as “The item is in the Inspector’s opinion of an acceptable standard with no defects visible.”
Windows in ensuite was noted as “good”. Good is defined as “The item is in the Inspector’s opinion of an acceptable standard with no defects visible.”

27․ The Particulars assert that these statements at page 8 are demonstrably false. The Particulars assert that the windows in Bedroom One and the ensuite reveal significant termite damage. In respect of the bedroom windows, the Particulars identify a “thin veneer of timber remain[s], with the rest being a hollow shell”. Further, the plaintiffs contend that the apparent termite damage was easily discoverable using normal techniques and that the inspector needed only to lift the window covering to observe as much. In respect of the ensuite window the Particulars identify that there was only “a hollow shell to the left side of the window” and that this too was damage easily discoverable.

28․ The Particulars record that at page 9 the Report records the following:

Construction of the roof cavity was noted as “good”. Good is defined as “The item is in the Inspector’s opinion of an acceptable standard with no defects visible.”
Subfloor structure and piers was noted as “good”. Good is defined as “The item is in the Inspector’s opinion of an acceptable standard with no defects visible.”

29․ The Particulars assert that these statements at page 9 are demonstrably false and that the roof cavity revealed termite damage. The Particulars assert:

Ceiling joists immediately adjacent to the manhole show extensive termite damage.
The areas over the ensuite and bathroom display termite damage to the ceiling joists and top plates to the wall dividing the two wet areas.
Termite damage to the roof cavity was easily accessible and observable and flexible ductwork did not conceal the ceiling joists either side of the manhole, which would have revealed the damage as soon as any weight was imposed on them.
The ceiling joist to the other side of the manhole also displays evidence of significant termite damage. These joists are positioned so that they are the first joints anyone entering the roof void would step on for support. Given that fact, it would be hard to enter the roof void without stepping on at least one of the damaged joists.
Damaged roof battens were also not identified which were unobstructed and easily discoverable.

30․ In respect of the subfloor structure and peris, the Particulars assert:

The subfloor area had adequate ground clearance and despite heating ducts being present there is clear access to the area where the termite damage is present
Termite damaged elements and mud galleries were visually present but were not noted in the Report.
The mud galleries and termite damage were readily accessible, visible and detectable through normal inspection procedures such as ‘sounding and splinter testing’.
The area under bedroom 1 showed termite mud galleries in the left front corner of the house extending from the ground to the floor and wall structure. The soil along the base brickwork display dampness, which creates a conducive environment which attracts termites.
The heating ducts are not installed in accordance with AS 4254.1 – Ductwork for air-handling systems in buildings, Part 1: Flexible duct, which requires ducts to be suspended off the ground, with specific support type, spacing and duct radius bends. This was not identified in the report.

31․ The Particulars record that at page 10 the Report records the following:

Structure was noted as “good”. Good is defined as “The item is in the Inspector’s opinion of an acceptable standard with no defects visible.”

32․ The Particulars assert that this statement at page 10 is demonstrably false in that the carport structure reveals evidence of termite damage to the “oregon timber posts”. Further, that this damage was easily discoverable by visual inspection and using normal sounding techniques.

33․ At page 23 the Particulars record that the Report concludes:

No visible evidence of subterranean termite working and/or damage was found.

34․ The Particulars assert that this statement at page 23 is demonstrably false and that termite damage was visible, repeating the statements made in relation to the other identified false statements (see [24]-[32] of these reasons).

35․ In relation to paragraph 17(b), the Particulars identify failures said to evince a failure to use reasonable skill and care in the preparation of the Report, specifically citing a failure to comply with the Australian Standard Inspection of Buildings, part 3. The Particulars allege the defendant failed to use reasonable skill and care by not:

Conducting a non-invasive inspection comprising visual inspection supplemented by non-marking sounding of elements and assessment of moisture content of materials.
Close and careful scrutiny of an item carried out in order to arrive at a reliable conclusion as to the condition of an item.
Accessing an area of the site where sufficient safe and reasonable access is available to allow inspection within the scope of the inspection noting:

The roof interior hole and crawl space are within the minimum crawl space and is accessible from a 3.6 metre ladder; and

The subfloor has adequate ground clearance.

Did not report on:

Evidence of the presence of timber pests, irrespective of whether past or current that was identifiable during a non-invasive inspection;

Evidence of damage caused by timber pests and resultant hazards where applicable; and

Major safety hazards due to timber pests,

despite the inspector having a professional duty to ensure that the report clearly identifies the hazard in such a manner that it is not easily overlooked by a reader of the report.

36․ To the extent that paragraph 17 lacks clarity, I am satisfied that the specific detail provided by the Particulars makes plain to the defendant the substance of this aspect of the claim. I affirmed in this view by the defence filed by the defendant in December 2023. The defence, while maintaining its characterisation of the pleading as embarrassing, nonetheless engages substantively with those details supplied in the plaintiffs’ particulars.

37․ Paragraph 17 should not be struck out.

Paragraphs 18, 19, 28, 29, 30, 31, 31, 32, and 33

38․ It is convenient to group these paragraphs together as some of the complaints are common and/or interrelated.

39․ Paragraph 18 provides;

In consequence, the Plaintiffs have incurred loss and expense pursuant to section 19(1)(d) of the Act.

40․ Paragraph 19 provides:

The Defendant is liable to compensate the plaintiffs for loss and expense pursuant to section 19(2) of the Act.

41․ Paragraph 28 provides:

As a consequence of the Defendant’s breach of statutory duty the Plaintiffs have suffered loss and damage.

42․ Paragraph 29 provides:

The Plaintiffs claim the costs of complete demolition of the Property, full particulars of this loss to be provided following the commission of expert evidence, and nearer to the date of the hearing proper.

43․ Paragraph 30 provides:

The Plaintiffs claim the costs of rebuilding of the Property, full particulars of this loss to be provided following the commission of expert evidence, and nearer to the date of the hearing proper.

44․ Paragraph 31 provides:

The Plaintiffs claim the costs of alternative accommodation during the demolition and rebuilding of the Property, full particulars of this loss to be provided following the commission of expert evidence, and nearer to the date of the hearing proper.

45․ Paragraph 32 provides:

The Plaintiffs further claim the cost of the Report.

46․ Paragraph 33 provides:

The Plaintiffs claim damages, interest and costs.

47․ The defendant complains that these pleadings are embarrassing as they either state a legal conclusion without pleading the material facts upon which those conclusions are made (paragraphs 19 and 28) or do not adequately set out the relief sought or the types of loss and expense which are said to have been incurred (paragraph 18).

48․ The defendant submits that the pleadings in paragraphs 29 to 33 as to the loss and damage allegedly suffered by the plaintiffs cannot stand if the complaint as to the sufficiency of the pleading relating to the nature and extent of the termite damage is established. The defendant reiterated that the connection between the facts of the claim and the relief sought is unclear and consequently, they are deprived of the opportunity to specifically plead to the allegations of fact underlying the claims in paragraphs 29 to 33 as they are required to under r 440(5) of the Rules.

49․ The Particulars provided the following specific details as to loss and expense:

The cost of the report was $1,550.00 and the cost of the Peak Consulting Report dated 9 November 2022 was $3,999.00.

50․ The Particulars provided the following details in respect of paragraph 31:

They estimate rental costs at $690 per week for 12 months for a three or four bedroom home in or around Kambah, noting a 12 month lease is usually required by landlords.
They plead that during demolition and rebuilding of the Property that the dwelling will be uninhabitable, due to the absence of a house and the addition of dust noise, disconnection of utilities and presence of tradespeople in the home for extended periods.

51․ Further, the Particulars inform the defendant that the plaintiffs anticipate that their loss and expenses will include “demolition and rebuild of the house to industry standards, failing which significant damages” and that the plaintiffs “are in the process of obtaining expert evidence and full particulars of the plaintiff’s loss and damage claim will be provided following the receipt of expert evidence”.

52․ Given the view I have come to about the sufficiency of paragraphs 13 and 17 (in light of the clarity provided by the Particulars) in terms of the nature and extent of the termite damage alleged, I consider it sufficient for damages to be claimed in the manner pleaded at paragraphs 18, 29, 30, 31, 32 and 33. In my view, the real substance of the claim including the material facts upon which the plaintiffs rely, have been revealed to the defendant such that they can determine the “nexus between [the] factual matrix of the claim and the relief sought”. If, upon the receipt of expert evidence and the provision of further particulars by the plaintiffs as to the scope of damages, the defendant maintains the present complaint in relation to damages, the sufficiency of the pleadings in this regard can be revisited.

53․ Paragraphs 18, 29, 30, 31, 32 and 33 should not be struck out.

54․ Paragraphs 19 and 28 are legal conclusions that fail to plead the material facts relied upon to found those conclusions and are, in the sense asserted by the defendant, embarrassing. There was no contest that as part of this application, were I to find in the defendant’s favour in whole or in part, the plaintiffs should be given leave to re-plead. In my view, with respect to these paragraphs it would be prudent for the solicitors to re-plead paragraphs 19 and 28 and for that purpose leave is granted.

Paragraphs 34, 40 and 41

55․ Paragraph 34 provides:

The Defendant owed a duty of care to the Plaintiffs to provide reasonable skill and care when compiling, writing and publishing the Report upon which the Defendant knew, or ought to have known, the Plaintiffs would rely upon it.

56․ Paragraph 40 provides:

As a consequence of the Defendant’s breaches of its duty of care the Plaintiff have suffered loss and damage.

57․ Paragraph 41 provides:

The Plaintiffs repeat the particulars of loss and damage as referred to above at paragraphs 28 to 32 of this Statement of Claim.

58․ The defendant submits that paragraph 34 pleads a legal conclusion without identifying the material facts on which the claim is made. The defendant further submits that paragraph 40 is embarrassing as it does not adequately set out the relief sought or the facts connecting the relief to the alleged acts or omissions of the defendant.

59․ The defendant accepted at the hearing that paragraph 41 “rises and falls with the destiny of other paragraphs”, meaning that if there is an “issue” with the pleadings that deal with loss and damage then that same issue will attend to paragraph 41. Having already determined the paragraphs pleading loss and damage to be sufficient, paragraph 41 should not be struck out. For the same reason, paragraph 40 should not be struck out with respect to “loss and damage”.

60․ Paragraph 40 in so far as it alleges the defendant breached its duty of care is simply an assertion of the specific breaches identified at paragraph 39 about which there is no complaint. There is no substance to the complaint about paragraph 40 when read in context, consistent with the conclusion I have reached in relation to the sufficiency of the way the plaintiffs have pleaded loss and damage.

61․ Paragraph 34 does not identify the material facts upon which the plaintiffs rely. While I have determined that the Particulars with respect to paragraphs 13 and 17 have cured any deficiency or uncertainty in the crafting such that the defendant is aware of the case it must meet, with respect to the nature and extent of the termite damage and the areas where the Report is said to have been false, the alternative position with respect to negligence in my view, requires clarification in order to comply with the Rules and to reveal the substance of the claim made in addition or in the alternative. There may be an argument that paragraph 35 of the SOC attends to any deficiency in the pleading at paragraph 34. If that is so, the attempt at clarification evident in paragraph 35 is not, in my view, sufficient. By way of example, the pleading asserts that the defendant’s duty of care “included at the very least a duty to ensure adherence to relevant legislation in compiling, writing and publishing the report” though does not identify the relevant legislation to which it is said the defendant failed to adhere. In my view, paragraph 34 is embarrassing. It should be struck out and the plaintiffs granted leave to re-plead.

Orders

62․ For those reasons the following orders are made:

(1) The application with respect to paragraph 13 is dismissed.

(2) The application with respect to paragraph 17 is dismissed.

(3) The application with respect to paragraphs 18, 29, 30, 31, 32 and 33 is dismissed.

(4) The application with respect to paragraphs 19 and 28 is granted. Pursuant to r 425 of the Rules paragraphs 19 and 28 of the Statement of Claim are struck out. Leave is granted for the plaintiffs to re-plead paragraphs 19 and 28.

(5) The application with respect paragraph 34 is granted. Pursuant to r 425 of the Rules, paragraph 34 of the Statement of Claim is struck out. Leave is granted for the plaintiffs to re-plead paragraph 34.

(6) The application with respect to paragraphs 40 and 41 is dismissed.

(7) Given the partial success of the application I will hear from the parties in relation to costs.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate:

Date: 2 May 2024

ACT Supreme Court