Backa Australia Pty Ltd v HNT Builders Pty Ltd - [2017] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

Backa Australia Pty Ltd & Anor v HNT Builders Pty Ltd [2017] QDC 255

PARTIES:

BACKA AUSTRALIA PTY LTD
(first appellant)
ANRIKA PTY LTD
(second appellant)
v
HNT BUILDERS PTY LTD

(respondent)

FILE NO:

135/2017

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

20 October 2017

DELIVERED AT:

Southport

HEARING DATE:

28 September 2017

JUDGE:

Kent QC DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where an appeal was brought against the order of an Acting Magistrate – where the order, inter alia, dismissed an application to strike out paragraphs of the statement of claim – where the appeal is by way of rehearing – where the questionable portions of the statement of claim could be ameliorated with further and better particulars – whether the Acting Magistrate erred in dismissing the application

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT – where an appeal was brought against the order of an Acting Magistrate – where the order, inter alia, dismissed an application for summary judgment – whether the conclusion of the Acting Magistrate, to dismiss the application, was incorrect

Magistrates Courts Act 1921 (Qld), s 45
Queensland Civil and Administrative Tribunal Act (Qld) 2009

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293, r 785, r 765(1)

Scrivener v Director of Public Prosecutions (2001)125 A Crim R 279; [2001] QCA 454, cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, considered
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, considered
Swain v Hillman [2001] 1 All ER 91, considered
Chen v ANZ Banking Group Ltd [2001] QSC 304, cited

Royalene Pty Ltd v Registrar of Titles [2007] QSC 059, cited

COUNSEL:

M Pope for the appellants

M Ramirez (sol) for the respondent

SOLICITORS:

Derek Legal for the appellants

Essen Lawyers for the respondent

Nature of appeal

The appellants appeal from a decision of an Acting Magistrate on 21 April 2017. The appellants are defendants in a civil claim in the Magistrates Court at Southport and had applied to the Magistrates Court for orders as part of that action. On behalf of the second appellant, there had been an application for summary judgment which was refused. On behalf of the first appellant, there had been an application to strike out certain parts of the statement of claim.

Section 45 of the Magistrates Courts Act 1921 (Qld) provides for the right of appeal for parties dissatisfied with the judgment or order of a Magistrates Court to appeal to the District Court. The right of appeal is not limited where the amount involved in the action is more than the civil dispute limit, i.e. the amount exceeds $25,000, which it does…

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.

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Details

Case: [2017] QDC 255
Decision Date: 20 October 2017

CaseChat Overview and Summary

In the matter of Backa Australia Pty Ltd v HNT Builders Pty Ltd, the court was tasked with reviewing the decision of an Acting Magistrate who had dismissed an application by the respondent, HNT Builders Pty Ltd, to strike out certain paragraphs of the statement of claim brought by the appellant, Backa Australia Pty Ltd. Additionally, the court considered the Acting Magistrate's dismissal of an application by the respondent for summary judgment. The appeal was by way of a rehearing.

The primary legal issues the court had to decide involved whether the Acting Magistrate erred in dismissing the respondent's application to strike out parts of the statement of claim and whether the Acting Magistrate's dismissal of the respondent's application for summary judgment was correct. The respondent argued that the paragraphs in question disclosed no reasonable cause of action or defence and sought their striking out. Conversely, the appellant argued that the claims could be substantiated with further and better particulars. Regarding the summary judgment, the respondent contended that the appellant's claims were unsustainable as a matter of law.

The court, upon review, found that the Acting Magistrate did not err in dismissing the application to strike out the paragraphs of the statement of claim. The court reasoned that the questionable portions of the statement of claim could indeed be ameliorated with further and better particulars, which would allow the appellant to adequately substantiate the claims. As for the summary judgment application, the court held that the Acting Magistrate's dismissal was correct, as the appellant's claims had sufficient merit to proceed to trial.

The appeal was dismissed, and the orders of the Acting Magistrate were affirmed.

Orders

Orders of the court

The appeal is dismissed.

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.

CITATION:	Backa Australia Pty Ltd & Anor v HNT Builders Pty Ltd [2017] QDC 255
PARTIES:	BACKA AUSTRALIA PTY LTD (first appellant) ANRIKA PTY LTD (second appellant) v HNT BUILDERS PTY LTD (respondent)
FILE NO:	135/2017
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	20 October 2017
DELIVERED AT:	Southport
HEARING DATE:	28 September 2017
JUDGE:	Kent QC DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where an appeal was brought against the order of an Acting Magistrate – where the order, inter alia, dismissed an application to strike out paragraphs of the statement of claim – where the appeal is by way of rehearing – where the questionable portions of the statement of claim could be ameliorated with further and better particulars – whether the Acting Magistrate erred in dismissing the application PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT – where an appeal was brought against the order of an Acting Magistrate – where the order, inter alia, dismissed an application for summary judgment – whether the conclusion of the Acting Magistrate, to dismiss the application, was incorrect Magistrates Courts Act 1921 (Qld), s 45 Queensland Civil and Administrative Tribunal Act (Qld) 2009 Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293, r 785, r 765(1) Scrivener v Director of Public Prosecutions (2001)125 A Crim R 279; [2001] QCA 454, cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, considered Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, considered Swain v Hillman [2001] 1 All ER 91, considered Chen v ANZ Banking Group Ltd [2001] QSC 304, cited Royalene Pty Ltd v Registrar of Titles [2007] QSC 059, cited
COUNSEL:	M Pope for the appellants M Ramirez (sol) for the respondent
SOLICITORS:	Derek Legal for the appellants Essen Lawyers for the respondent