GC Group Company Pty Ltd v Bingo Holdings Pty Ltd

The plaintiff, GC Group Company Pty Ltd, was a subcontractor in a residential subdivision at Albion Park engaged to design and construct a retaining wall. GC Group ordered “recycled aggregate” from the defendants, Bingo Holdings Pty Ltd and Bingo Recycling Pty Ltd (together, “Bingo”), which it used as backfill.

GC Group alleges that the aggregate supplied by Bingo was contaminated and that, as a result, GC Group was obliged to effect substantial reconstruction works at its own cost and has thereby incurred loss and damage.

In its Technology and Construction List Response, Bingo asserts that any contamination in the aggregate came from materials supplied to it by its “Customers” and, perhaps, from “SCE Recycling”.

The “Customers” are not individually identified and are defined to be “a supplier of source material from which recycled or recovered aggregate was processed.” The particulars to paragraph 44 of the Response state that the identity of the Customers “will be provided by way of an affidavit in respect of which an appropriate confidentiality undertaking or order will be sought”.

“SCE Recycling” is not further identified.

In paragraphs 46 and 47 of the Response it is alleged:

The “contracts” referred to in sub-paragraphs 46 b and c are not identified.

So far as concerns “SCE Recycling”, paragraph 50 of the Response alleges:

Bingo then alleges:

By Notice of Motion filed on 4 May 2020, GC Group seeks to strike out these paragraphs, as well as earlier introductory paragraphs ([44] to [50]).

The impugned paragraphs appear to be directed to the proposition that GC Group’s claim is an “apportionable claim” under s 34 of the Civil Liability Act 2002 (NSW) and that Bingo’s liability to GC Group should be limited under s 35 of that Act.

I see a number of difficulties with the pleadings in their current form.

The first is that Bingo presently alleges that the “Customers” and “SCE Recycling” “may” be a “concurrent wrongdoer in relation to GC Group’s claim”.

But what must be pleaded is that Bingo, as the defendant, “is” a concurrent wrongdoer, that is:

Second, a defendant who alleges that it is a concurrent wrongdoer and that the claim is an “apportionable claim” for the purposes of s 35(1) of the Civil Liability Act 2002:

That would involve, at least, identifying the “Customers” in some way [3] and pleading how those “Customers” and “SCE Recycling” would be liable to Bingo were Bingo to have brought a cross-claim against them.

The current pleading falls far short of these requirements.

I order that paragraphs [44] to [52] of the List Response be struck out.

I direct that the defendants circulate any proposed Amended Technology and Construction List Response by 5.00pm on 27 May 2020.

I order that the defendants pay the plaintiff’s cost of the plaintiff’s notice of motion of 4 May 2020 and that those costs may be assessed and payable forthwith.

The plaintiff seeks an order for indemnity costs on the basis that, by its solicitor, it foreshadowed the basis upon which this application would be brought by filing its notice of motion. I do not see that as a matter that, in the circumstances of this case, justifies an order for indemnity costs.

I stand the matter over for further directions on 29 May 2020.