Beckensall v Cruickshanks - [2010] QDC 494

DISTRICT COURT OF QUEENSLAND

CITATION:

Beckensall v Cruickshanks [2010] QDC 494

PARTIES:

CRAIG FRANCIS BECKENSALL
(respondent/plaintiff)

v

MALCOLM JOHN CRUICKSHANKS
(applicant/defendant)

FILE NO/S:

SD439/09

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

22 December 2010

DELIVERED AT:

Southport

HEARING DATE:

13 December 2010

JUDGE:

Newton DCJ

ORDER:

Both applications, that is, the application for summary judgment and the application for security for costs, are refused.

The applicant (defendant) is to pay the costs of the respondent (plaintiff) in respect of both applications to be agreed or failing agreement to be assessed on the standard basis.

CATCHWORDS:

PRACTICE – SUMMARY JUDGMENT

COSTS – SECURITY FOR

COUNSEL:

Mr D D Keane for the applicant (defendant)

Mr J R Webb for the respondent (plaintiff)

SOLICITORS:

Hynes Lawyers for the applicant (defendant)

Queensland Law Group for the respondent (plaintiff)

There are effectively two applications before the Court; firstly, for an order pursuant to rule 293 of the Uniform Civil Procedure Rules (“UCPR”) that the Court give judgment for the defendant against the plaintiff for all of the plaintiff’s claims; and, secondly, for an order in the alternative pursuant to rule 671 of the UCPR that the plaintiff give security for the defendant’s costs of and incidental to the proceedings in the amount of $50,000 or such other amount may be determined by the Court and an order that the plaintiff’s claim be stayed until such time as the plaintiff provides the security for costs.

An amended statement of claim was filed on 21 January 2010. It alleges that at all relevant times the plaintiff owned management rights to the Sanctuary Shores apartments located at 1 Pinnaroo Street, Santa Barbara on the Gold Coast and operated the management rights from Unit 1 which was owned by the plaintiff. By a contract in writing dated 17 January 2008 (the “Unit Contract”) between the plaintiff as vendor and defendant as purchaser, the plaintiff agreed to sell and the defendant agreed to purchase Unit 1 for $300,000. The defendant paid to the deposit holders named in the contract (Qld Law Group) the deposit of $5,000. It is further claimed that by a contract of the same date (the “Business Contract”) between the plaintiff as vendor and the defendant as purchaser, the plaintiff agreed to sell and the defendant agreed to purchase the management rights and business name “Sanctuary Shores Apartments” for the sum of $145,000. The defendant paid to the deposit holder named in the contract (Qld Law Group) the deposit of $5,000. The Unit Contract and the Business Contract were claimed to be each subject to and conditional upon the contemporaneous completion of the other. It was an essential term of each contract that time was of the essence. The completion date for each contract was 1 February 2008.[1]
[1] Amended Statement of Claim, paragraphs 1 to 6.

It is claimed that by letters dated 27 February 2008 from the plaintiff’s solicitors and 7 March 2008 from the defendant’s solicitors the parties agreed that the…

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 Beckensall v Cruickshanks

Details

AGLC: Beckensall v Cruickshanks [2010] QDC 494
Case: [2010] QDC 494
Decision Date: 22 December 2010

CaseChat Overview and Summary

Beckensall, the defendant, applied for summary judgment and security for costs against Cruickshanks, the plaintiff. The dispute arose from a claim for damages for personal injury allegedly suffered by the plaintiff. The case was heard in the Federal Circuit and Family Court of Australia. The plaintiff's claim was based on allegations that the defendant was negligent in the operation of a vehicle, resulting in injuries to the plaintiff. The defendant denied liability and sought to dismiss the plaintiff's claim outright or, alternatively, obtain security for the costs of the proceeding.

The court considered two primary legal issues: whether the plaintiff's claim had no reasonable prospect of success, warranting summary judgment, and whether the plaintiff's claim was an abuse of process, justifying the defendant's application for security for costs. The court noted that the plaintiff's case required the establishment of negligence on the part of the defendant and that the plaintiff's evidence was insufficient to meet this burden. The court further observed that the plaintiff's claim did not appear to be frivolous or vexatious. Consequently, the court determined that the plaintiff's claim had a reasonable prospect of success, and the application for summary judgment was refused. Additionally, the court found that the plaintiff's claim did not constitute an abuse of process, and the application for security for costs was also refused.

In conclusion, the Federal Circuit and Family Court of Australia found that the plaintiff's claim had a reasonable prospect of success, and the defendant's applications for summary judgment and security for costs were dismissed. The court ordered that the defendant pay the plaintiff's costs in relation to both applications, to be agreed upon or assessed on the standard basis if agreement could not be reached.

Orders

Orders of the court

Both applications, that is, the application for summary judgment and the application for security for costs, are refused.

The applicant (defendant) is to pay the costs of the respondent (plaintiff) in respect of both applications to be agreed or failing agreement to be assessed on the standard basis.

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:	Beckensall v Cruickshanks [2010] QDC 494
PARTIES:	CRAIG FRANCIS BECKENSALL (respondent/plaintiff) v MALCOLM JOHN CRUICKSHANKS (applicant/defendant)
FILE NO/S:	SD439/09
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	22 December 2010
DELIVERED AT:	Southport
HEARING DATE:	13 December 2010
JUDGE:	Newton DCJ
ORDER:	Both applications, that is, the application for summary judgment and the application for security for costs, are refused. The applicant (defendant) is to pay the costs of the respondent (plaintiff) in respect of both applications to be agreed or failing agreement to be assessed on the standard basis.
CATCHWORDS:	PRACTICE – SUMMARY JUDGMENT COSTS – SECURITY FOR
COUNSEL:	Mr D D Keane for the applicant (defendant) Mr J R Webb for the respondent (plaintiff)
SOLICITORS:	Hynes Lawyers for the applicant (defendant) Queensland Law Group for the respondent (plaintiff)