Breen v Orenshaw

[2013] QDC 241

DISTRICT COURT OF QUEENSLAND

CITATION:

Breen & Anor v Orenshaw [2013] QDC 241

PARTIES:

James R Breen & Mandy L Breen

Plaintiffs/Respondents

And

Wayne Francis Orenshaw

Defendant/Applicant

FILE NO:

D114 of 2011

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

23 September 2013

DELIVERED AT:

Townsville

HEARING DATE:

30 August 2013

JUDGE:

Durward SC DCJ

ORDERS:

1   Application for summary judgment granted.

2   Parties to be heard as to costs orders.

CATCHWORDS:

PRACTICE & PROCEDURE – PLEADINGS – proceeding for debt – plaintiff previously sued company – plaintiff participated fully as creditor in liquidation – no payment – now sues defendant in person – whether binding and irrevocable election made to pursue company

PRACTICE & PROCEDURE – CONTRACT – whether  defendant the contracting party – whether defendant an agent for undisclosed principal – relevance of plaintiffs’ subsequent acquisition of knowledge of company as contracting party and delivery of invoices to, statutory notice upon and proceedings to recover debt from company

PRACTICE & PROCEDURE – UCPR – APPLICATION FOR SUMMARY JUDGMENT BY DEFENDANT – whether proceeding pleads a cause of action – whether need for trial – whether plaintiff has no real prospect of succeeding in claim – no relevant factual dispute – whether legal issue can be resolved on application without need for trial

LEGISLATION:

Uniform Civil Procedure Rules 1999 rr 5, 293.

CASES APPLIED:

CASES CONSIDERED:

Scarf v Jardine (1882) 7 App Cas 345; Sargent v ASL Developments Ltd (1974) 131 CLR 634; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd (2009) 2 Qd R 202.

Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305; Hill v Colquhoun & Nicholls Pty Ltd (unreported BC 8111050, NSWSC 06 August 1981; Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSW LR 141; United Australia Ltd v Barclays Bank Ltd [1941] AC 1;Figliomeni v Steel Supplies (Aust) Pty Ltd & Anor (BC8491006 unreported SCWA, No 152 of 1984); Simon v O’Gorman (1979) 27 ALR 619; AutoCaps Australia Pty Ltd v Deposit Investment Company Ltd (Receiver Appointed) (BC 8901590 unreported, NSWSC 16 October 1989); Clarkson, Booker Ltd v Andjel [1964] 3 All ER 260.

COUNSEL:

G Thomae for the defendant/applicant

S McLennan for the plaintiffs/respondents

SOLICITORS:

Mills Oakley Lawyers for the defendant/applicant

Bill Cooper & Associates for the plaintiffs/respondents

1. This is an application by the defendant:

1.          for summary judgment pursuant to r 293 Uniform Civil Procedure Rules 1999 (“UCPR”);

or in the alternative,

2.          to strike out the plaintiff’s claim and/or the statement of claim in their entirety.

The dispute

1. The plaintiffs operated a business that supplied and erected scaffolding for building works.

1. The defendant had traded as a sole trader using the name Whitsunday Pole Homes. At a point in time in 2006, he incorporated a company called Whitsunday Pole Homes Pty Ltd (“the company”) and then traded through the company.  He entered into…