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ABL Custodian Services Pty Ltd v Smith

ABL Custodian Services Pty Ltd v Smith

Case [2018] QDC 257 11 December 2018

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Summary Judgment

Costs

Discovery & Disclosure

Civil Litigation & Procedure

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DISTRICT COURT OF QUEENSLAND

CITATION:

ABL Custodian Services Pty Ltd v Smith [2018] QDC 257

PARTIES:

ABL CUSTODIAN SERVICES PTY LTD ACN 097 889 720 (Plaintiff/Applicant)

V

NORMAN SMITH (Defendant/Respondent)

FILE NO/S:

2802/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2018

JUDGE:

Porter QC DCJ

ORDER:

1. Judgment be entered for the plaintiff pursuant to Rule 374(5) in a sum to be determined.

2. The plaintiff provide submissions on the calculation of the judgment sum and costs addressing the matters in paragraphs [72] to [78] of these reasons.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where the plaintiff applies for judgment pursuant to rule 374(5) of UCPR – where there has been a repeated failure by the defendant to comply with orders for disclosure – where the defendant has not otherwise participated in the proceedings for some time – whether the sanction for non-compliance with the orders seeking to compel the performance of the duty of disclosure should be the entry of judgment for the plaintiff – whether the plaintiff is seeking costs under the covenant in the loan deed relied upon or by order from the Court.

Legislation

Taxation Administration Act 1953 (Cth) Schedule 1 Division 355, s 355-155, 355-265

Uniform Civil Procedure Rules 1999 (Qld) r 5, 225, 374

Cases

Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45

ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145

British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524

Clarke v State of New South Wales (2006) 66 NSWLR 640

Hendon Homes Pty Ltd v Centennial Group Holdings Pty Ltd [2008] QDC 284

Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260

KAE v WAK [2010] QCA 327

Klerck v Sierocki [2014] QCA 355

Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87

Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284

Lenijamar P/L v AGC (Advances) Ltd (1990) 27 FCR 388

Mango Boulevard P/L v Spencer & Ors [2008] QCA 274

Mango Boulevard P/L v Spencer & Ors [2010] QCA 207

Quinlan v Rothwell [2002] 1 Qd R 647

Quinlan v Rothwell [2008] QSC 143

Resseck Pty Ltd v Buchanan [2011] QDC 177

COUNSEL:

P D Tucker for the Plaintiff/Applicant

SOLICITORS:

Results Legal for the Plaintiff/Applicant

SUMMARY

This is an application by the plaintiff for judgment pursuant to rule 374(5) of the Uniform Civil Procedure Rules 1999 (UCPR), by reason of the defendant’s repeated failure to comply with orders for disclosure.
In the alternative, the plaintiff applies for orders that paragraphs 1A and 1B of the defendant’s defence filed 12 February 2018 (Defence), and any references or reliance upon paragraph 1A or 1B elsewhere in the Defence, be struck out; and, or alternatively all adverse inferences that may be drawn against the defendant at any trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ABL Custodian Services Pty Ltd v Smith

Details

AGLC: ABL Custodian Services Pty Ltd v Smith [2018] QDC 257
Case: [2018] QDC 257
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of ABL Custodian Services Pty Ltd v Smith involved a dispute where the plaintiff sought an entry of judgment against the defendant due to repeated failures to comply with orders for disclosure. The case was heard in the Supreme Court of New South Wales. The plaintiff's claim was founded on a covenant within a loan deed that stipulated the defendant's obligation to disclose certain information. The defendant, Smith, had persistently neglected to comply with the disclosure orders, leading to the plaintiff's application for judgment under Rule 374(5) of the Uniform Civil Procedure Rules.

The primary legal issues the court had to resolve were whether the failure to comply with disclosure orders justified the entry of judgment for the plaintiff, and if so, the appropriate sum of the judgment and whether the plaintiff was entitled to costs under the covenant in the loan deed or by order from the Court. The court had to consider the precedent set by previous cases, such as those involving the application of Rule 374(5), and how these applied to the specific circumstances of the case.

The court determined that the defendant's repeated failure to comply with the disclosure orders constituted a breach of their obligations under the loan deed and the court's orders. The court reasoned that such non-compliance warranted the sanction of entering judgment in favour of the plaintiff. The court also noted that the plaintiff had not participated in the proceedings for some time, which further supported the entry of judgment. Regarding the amount of the judgment and the costs, the court directed the plaintiff to submit detailed submissions addressing the specific matters outlined in the judgment.

The final orders of the court were that judgment be entered for the plaintiff pursuant to Rule 374(5) in a sum to be determined. Additionally, the plaintiff was directed to provide submissions on the calculation of the judgment sum and costs, addressing the matters outlined in paragraphs [72] to [78] of the court's reasons.

Orders

Orders of the court

1. Judgment be entered for the plaintiff pursuant to Rule 374(5) in a sum to be determined.

2. The plaintiff provide submissions on the calculation of the judgment sum and costs addressing the matters in paragraphs [72] to [78] of these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

ABL Custodian Services Pty Ltd v Smith [2018] QDC 257

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

ABL Custodian Services Pty Ltd v Kunz
[2016] SADC 145 Para 8

…Cowell (2002) 7 VR 524, 590-591. [18] Clarke v State of New South Wales (2006) 66 NSWLR 640 at 666. See also ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145 at [64] cf [55].…
Clarke v State of New South Wales
[2015] NSWCA 27 Para 8

…st the party in default of disclosure obligations.[18] [17] British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524, 590-591. [18] Clarke v State of New South Wales (2006) 66 NSWLR 640 at 666. See also ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145 at [64] cf [55].…
Klerck v Sierocki
[2014] QCA 355 Para 9

…raight forward one), in addition to the evidence of Mr Walsh which tends to support its position on the key issues in dispute. [20] Klerck v Sierocki [2014] QCA 355 at [15] per Fraser JA. [21] Hendon Homes Pty Ltd v Centennial Group Holdings Pty Ltd [2008] QDC 284; Resseck Pty Ltd v Buchanan [2011] QDC 177. [22]…
Lee v Australia and New Zealand Banking Group Ltd
[2013] QCA 284 Para 2

…will take into account a contractual promise to pay costs of proceedings on some basis.[24] [23] Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284 at [9]; Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87. [24] Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284 at [9].…
Resseck Pty Ltd v Buchanan
[2011] QDC 177 Para 9

…erocki [2014] QCA 355 at [15] per Fraser JA. [21] Hendon Homes Pty Ltd v Centennial Group Holdings Pty Ltd [2008] QDC 284; Resseck Pty Ltd v Buchanan [2011] QDC 177. [22] See the schedule of affidavit references at Annexure A to the plaintiff’s outline (LTRF granted 12.11.18).…
KAE v WAK
[2010] QCA 327 Para 5

…y Mr Smith to comply with his duty of disclosure. The considerations that arise in that situation were considered by the Court of Appeal in KAE v WAK [2010] QCA 327. In that case, as here, the appellant had failed to comply with orders directed at securing compliance with the duty of disclosure. Muir JA (with who…
Johnson v Public Trustee of Queensland as Executor of the Will of Brady (deceased)
[2010] QCA 260 Para 4

…In Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260, Applegarth J (with whose reasons McMurdo P and Chesterman JA agreed) emphasised that the exercise of the discretion under rule 374(5) should have regard to rule 5 UCPR and “the general consideration as to whether…
Mango Boulevard Pty Ltd v Spencer
[2010] QCA 207 Para 1

…Court Doc 37), paras 46, 47, EXH SFS-1, pp163-169; Afd of L E Adams (filed 8.11.18) (eCourt Doc 41) EXH p 6. [27] Mango Boulevard P/L v Spencer & Ors [2010] QCA 207 at [113].…
Hendon Homes Pty Ltd v. Centennial Group Holdings Pty Ltd
[2008] QDC 284 Para 9

…the key issues in dispute. [20] Klerck v Sierocki [2014] QCA 355 at [15] per Fraser JA. [21] Hendon Homes Pty Ltd v Centennial Group Holdings Pty Ltd [2008] QDC 284; Resseck Pty Ltd v Buchanan [2011] QDC 177. [22] See the schedule of affidavit references at Annexure A to the plaintiff’s outline (LTRF granted 12.1…
Mango Boulevard Pty Ltd v Spencer
[2008] QCA 274 Para 6

…to comply with the duty of disclosure in particular is set out in another decision in the Mango Boulevard saga: Mango Boulevard P/L v Spencer & Ors [2008] QCA 274 where Muir JA again gave the leading judgment. His Honour there relevantly observed: [24] Under r 225 where a party fails to "disclose a document" the…
Quinlan v Rothwell
[2008] QSC 143 Para 4

…he context of an application to strike out proceedings for want of prosecution; cf Quinlan v Rothwell [2008] QSC 143. [16] Lenijamar P/L v AGC (Advances) Ltd (1990) 27 FCR 388, 396.…
Kyabram Property Investments Pty Ltd v Murray
[2005] NSWCA 87 Para 2

…ings on some basis.[24] [23] Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284 at [9]; Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87. [24] Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284 at [9].…
British American Tobacco Australia Services Ltd v Cowell
[2003] VSCA 43 Para 8

…rawing adverse inferences against the party in default of disclosure obligations.[18] [17] British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524, 590-591. [18] Clarke v State of New South Wales (2006) 66 NSWLR 640 at 666. See also ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145 at [64] cf…
British American Tobacco Australia Services Ltd v Cowell
[2002] VSCA 197 Para 8

…ew that a fair trial can still be had, upon the court’s drawing adverse inferences against the party in default of disclosure obligations.[18] [17] British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524, 590-591. [18] Clarke v State of New South Wales (2006) 66 NSWLR 640 at 666. See also ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145 at…
Abigroup Ltd v Sandtara Pty Ltd
[2002] NSWCA 45 Para 3

…lawful nor unenforceable, despite Rule 680 (and cognate provisions). That argument was dealt with directly in Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45, Stein JA (with whom Giles JA and Young CJ in Equity agreed in substance) observed: 7 The appellant submitted that because s 76 of the Supreme Court…
[1990] FCA 745
[1990] FCA 745 Para 4

…or want of prosecution; cf Quinlan v Rothwell [2008] QSC 143. [16] Lenijamar P/L v AGC (Advances) Ltd (1990) 27 FCR 388, 396.…
[1928] 2 KB 353
[1928] 2 KB 353 Para 3

…rcise of discretion against giving effect to the contract precludes enforcement of the contract as to costs. As Salter J said in Mansfield v Robinson [1928] 2 KB 353 at 359, agreements as to costs are common practice and perfectly valid and enforceable. Gomba did not overrule Mansfield , as seems to have been sugg…

Legislation cited in this decision · 2

Uniform Civil Procedure Rules 1999 (Qld)
225, 374, 5 4 mentions (from Para 1)
Taxation Administration Act 1953 (Cth)
2 mentions (from Para 2)

CITATION:	ABL Custodian Services Pty Ltd v Smith [2018] QDC 257
PARTIES:	ABL CUSTODIAN SERVICES PTY LTD ACN 097 889 720 (Plaintiff/Applicant) V NORMAN SMITH (Defendant/Respondent)
FILE NO/S:	2802/16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2018
JUDGE:	Porter QC DCJ
ORDER:	1. Judgment be entered for the plaintiff pursuant to Rule 374(5) in a sum to be determined. 2. The plaintiff provide submissions on the calculation of the judgment sum and costs addressing the matters in paragraphs [72] to [78] of these reasons.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where the plaintiff applies for judgment pursuant to rule 374(5) of UCPR – where there has been a repeated failure by the defendant to comply with orders for disclosure – where the defendant has not otherwise participated in the proceedings for some time – whether the sanction for non-compliance with the orders seeking to compel the performance of the duty of disclosure should be the entry of judgment for the plaintiff – whether the plaintiff is seeking costs under the covenant in the loan deed relied upon or by order from the Court. Legislation Taxation Administration Act 1953 (Cth) Schedule 1 Division 355, s 355-155, 355-265 Uniform Civil Procedure Rules 1999 (Qld) r 5, 225, 374 Cases Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45 ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 Clarke v State of New South Wales (2006) 66 NSWLR 640 Hendon Homes Pty Ltd v Centennial Group Holdings Pty Ltd [2008] QDC 284 Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260 KAE v WAK [2010] QCA 327 Klerck v Sierocki [2014] QCA 355 Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284 Lenijamar P/L v AGC (Advances) Ltd (1990) 27 FCR 388 Mango Boulevard P/L v Spencer & Ors [2008] QCA 274 Mango Boulevard P/L v Spencer & Ors [2010] QCA 207 Quinlan v Rothwell [2002] 1 Qd R 647 Quinlan v Rothwell [2008] QSC 143 Resseck Pty Ltd v Buchanan [2011] QDC 177
COUNSEL:	P D Tucker for the Plaintiff/Applicant
SOLICITORS:	Results Legal for the Plaintiff/Applicant