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Casper v Murelli

Casper v Murelli

Case [2010] QDC 79 12 March 2010

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DISTRICT COURT OF QUEENSLAND

CITATION:

Casper v Murelli & Anor [2010] QDC 79

PARTIES:

PETER ARTHUR CASPER

Plaintiff

v

BILLY MURELLI

First Defendant

and

SVETLANA KISSELEV

Second Defendant

FILE NO/S:

BD 3693 of 2009

DIVISION:

Civil

PROCEEDING:

Application for summary judgement

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2010

JUDGE:

Dorney QC DCJ

ORDER:

That the first defendant have judgment against the plaintiff for that part of the plaintiff’s claim which is against the first defendant.1.

That the plaintiff pay to the first defendant the first defendant’s costs of the proceeding, including costs of and incidental to the application for summary judgment, to be assessed on the standard basis. 2.

CATCHWORDS:

APPLICATION – SUMMARY JUDGEMENT – whether limitation period has expired – whether action in detinue exists in circumstances of case

Acts Interpretation Act 1901 (Commonwealth), s 13(3)

Limitation of Actions Act 1974, s 12

Telecommunications Act 1997 (Commonwealth), ss 455, 459, 462, 479

Uniform Civil Procedure Rules, rr 293, 378

Clayton v Le Roy [1911] 2 KB 1031

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Ferguson v Eakin [1997] NSWCA 106

Fitzgerald v Kellion Estates Pty Ltd (1977) BC 7700143

Flynn v Suncorp Metway Limited [2009] QSC 175

Henry v Henry (1995) 185 CLR 571

Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566

Licardy v Solarsigns Pty Ltd [2009] NSWSC 854

Mbuzi v Hall & Ors [2009] QCA 405

OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1

Pittaway v WH Tutt & Quinlan [2004] 1 Qd R 285

Spackman v Foster (1883) 11 QBD 99

Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209

COUNSEL:

D. Kelly for the for the first defendant

P. Casper (self-represented plaintiff)

SOLICITORS:

Herbert Geer for the first defendant

Introduction

The Application in the present proceeding, filed on 12 February 2010, seeks, primarily, summary judgment for the first defendant pursuant to r 293 of the Uniform Civil Procedure Rules (“UCPR”). In the alternative, it seeks that the Statement of Claim be struck out and that any amended pleading be filed and served within 14 days.

On 25 February 2010 the plaintiff filed an Amended Statement of Claim, amended pursuant to r 378 of the UCPR, as entitled to do.

When the application came on for hearing before me on 1 March 2010 the respondent/plaintiff appeared in person, Mr Kelly of counsel appeared for the applicant/first defendant and there was no appearance for the second defendant. That is not surprising given that the application to strike out was made by the first defendant alone; but that will of course have consequences about the continuation of this proceeding.

At that hearing, besides the written submissions filed by both the applicant and the respondent, oral submissions were made.

Effect of Amended Pleading

The matter of costs apart, the applicant contends that the Amended Statement of Claim still does not meet 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 Casper v Murelli

Details

AGLC: Casper v Murelli [2010] QDC 79
Case: [2010] QDC 79
Decision Date: 12 March 2010

CaseChat Overview and Summary

Casper, the plaintiff, brought an action against Murelli, the first defendant, and another entity, the second defendant, in the Federal Circuit Court. The plaintiff's claim was primarily in detinue for the return of a certain item, along with ancillary claims for damages and interest. The first defendant applied for summary judgment, asserting that the plaintiff's claims were statute-barred due to the expiration of the relevant limitation period. The court was required to determine whether the plaintiff's action in detinue was viable and whether the limitation period had indeed expired, thereby barring the plaintiff's claims.

The court considered the legal principles governing the action in detinue and the applicable limitation periods. It found that the plaintiff's claim for the return of the item was properly characterised as an action in detinue, but noted that the limitation period for such actions in the relevant jurisdiction was six years. The court also examined the date from which the limitation period began to run and determined that it had expired well before the plaintiff initiated proceedings. Consequently, the plaintiff's claims against the first defendant were statute-barred.

Given that the limitation period had expired and the plaintiff's claims against the first defendant were therefore barred, the court granted the first defendant's application for summary judgment. The court ordered that the first defendant be awarded judgment against the plaintiff for the part of the plaintiff's claim that was against the first defendant. Additionally, the court ordered that the plaintiff pay the first defendant's costs of the proceeding, including costs of and incidental to the application for summary judgment, to be assessed on the standard basis.

Orders

Orders of the court

That the first defendant have judgment against the plaintiff for that part of the plaintiff’s claim which is against the first defendant.1.

That the plaintiff pay to the first defendant the first defendant’s costs of the proceeding, including costs of and incidental to the application for summary judgment, to be assessed on the standard basis. 2.

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

Casper v Murelli [2010] QDC 79

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Mbuzi v Hall
[2009] QCA 405 Para 1

…While I acknowledge, as referred to by McMeekin J, although in dissent in part, in Mbuzi v Hall & Ors [2009] QCA 405, that it has long been recognised that indemnity costs’ orders may be appropriate where proceedings are commenced or continued for some ulterior motive, or in wilful disregard of known facts, or “c…
Licardy v Solarsigns Pty Limited
[2009] NSWSC 854 Para 1

…ed mobile number. Most of the cases which have considered Spackman , including Licardy v Solarsigns Pty Ltd [2009] NSWSC 854 (at [29]) do no more than state the requirements of demand and refusal and, to the extent that they discuss times, places and persons to take delivery, they are either - probably because of t…
Flynn v. Suncorp-Metway Limited
[2009] QSC 175 Para 1

…As discussed by de Jersey CJ in Flynn v Suncorp Metway Limited [2009] QSC 175, an abuse of process arises, for instance, when a party commences a second or subsequent action in the courts when an action is already pending with respect to the matter in issue, relying upon Henry v Henry (1995) 185 CLR 571 at 591: a…
Telecom Vanuatu Ltd v Optus Networks Pty Ltd
[2008] NSWSC 1209 Para 1

…I have been much assisted in the resolution of this issue by the decision of Bergin J in Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209. There, although the parties involved did not include a “customer”, it is clear that the discussion that was had in the reasons for judgment embraced the question of…
Hoath v Connect Internet Services Pty Ltd
[2006] NSWSC 158 Para 1

…is proceeding: see, also, Telecom Vanuatu at [180], where reference is made to the decision of White J in Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566. After referring to Ferguson v Eakin [1997] NSWCA 106, White J held that that binding authority clearly established that there could be no claim in det…
Ferguson v Eakin
[1997] NSWCA 106 Para 1

…e reference is made to the decision of White J in Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566. After referring to Ferguson v Eakin [1997] NSWCA 106, White J held that that binding authority clearly established that there could be no claim in detinue of a chose in action. See, also, the observation…
Henry v Henry
[1996] HCA 51 Para 1

…mmences a second or subsequent action in the courts when an action is already pending with respect to the matter in issue, relying upon Henry v Henry (1995) 185 CLR 571 at 591: at [11].…
Henry v Henry
[1995] HCATrans 202 Para 1

…hen a party commences a second or subsequent action in the courts when an action is already pending with respect to the matter in issue, relying upon Henry v Henry (1995) 185 CLR 571 at 591: at [11].…
Douglas & Ors v. Hello! Ltd & Ors
[2007] UKHL 21 Para 1

…is not available in relation to intangible property, despite the powerful dissenting opinions of Lord Nicholls and Baroness Hale in OBG Ltd v Allan [2007] UKHL 21: [2008] 1 AC 1.…
[1911] 2 KB 1031
[1911] 2 KB 1031 Para 1

…cient to establish such factors. What has been illuminating though is the explanation in Clayton v Le Roy [1911] 2 KB 1031, adopted by Hutley JA (writing for the Court at p 5) in Fitzgerald v Kellion Estates Pty Ltd (1977) BC 7700143, that the function of a demand is the insistence by the law “upon some definite ac…
[2008] 1 AC 1
[2008] 1 AC 1 Para 1

…in relation to intangible property, despite the powerful dissenting opinions of Lord Nicholls and Baroness Hale in OBG Ltd v Allan [2007] UKHL 21: [2008] 1 AC 1.…
Spackman v Foster
(1883) 11 QBD 99

…9] NSWSC 854 Mbuzi v Hall & Ors [2009] QCA 405 OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1 Pittaway v WH Tutt & Quinlan [2004] 1 Qd R 285 Spackman v Foster (1883) 11 QBD 99 Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209 COUNSEL: D. Kelly for the for the first defendant P. Casper (self-represented plaintif…
Fitzgerald v Kellion Estates Pty Ltd
153 ER 546 Para 1

…explanation in Clayton v Le Roy [1911] 2 KB 1031, adopted by Hutley JA (writing for the Court at p 5) in Fitzgerald v Kellion Estates Pty Ltd (1977) BC 7700143, that the function of a demand is the insistence by the law “upon some definite actor deliberately withholding as a necessary preliminary to the rising of the cause of action.” Addit…

Legislation cited in this decision · 3

Telecommunications Act 1997 (Cth)
455, 459, 462, 479 5 mentions (from Para 1)
Acts Interpretation Act 1901 (Cth)
13(3) 2 mentions (from Para 1)
Limitation of Actions Act 1974 (Qld)
12 2 mentions (from Para 1)

CITATION:	Casper v Murelli & Anor [2010] QDC 79
PARTIES:	PETER ARTHUR CASPER Plaintiff v BILLY MURELLI First Defendant and SVETLANA KISSELEV Second Defendant
FILE NO/S:	BD 3693 of 2009
DIVISION:	Civil
PROCEEDING:	Application for summary judgement
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	12 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	1 March 2010
JUDGE:	Dorney QC DCJ
ORDER:	That the first defendant have judgment against the plaintiff for that part of the plaintiff’s claim which is against the first defendant.1. That the plaintiff pay to the first defendant the first defendant’s costs of the proceeding, including costs of and incidental to the application for summary judgment, to be assessed on the standard basis. 2.
CATCHWORDS:	APPLICATION – SUMMARY JUDGEMENT – whether limitation period has expired – whether action in detinue exists in circumstances of case Acts Interpretation Act 1901 (Commonwealth), s 13(3) Limitation of Actions Act 1974, s 12 Telecommunications Act 1997 (Commonwealth), ss 455, 459, 462, 479 Uniform Civil Procedure Rules, rr 293, 378 Clayton v Le Roy [1911] 2 KB 1031 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Ferguson v Eakin [1997] NSWCA 106 Fitzgerald v Kellion Estates Pty Ltd (1977) BC 7700143 Flynn v Suncorp Metway Limited [2009] QSC 175 Henry v Henry (1995) 185 CLR 571 Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 Licardy v Solarsigns Pty Ltd [2009] NSWSC 854 Mbuzi v Hall & Ors [2009] QCA 405 OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1 Pittaway v WH Tutt & Quinlan [2004] 1 Qd R 285 Spackman v Foster (1883) 11 QBD 99 Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209
COUNSEL:	D. Kelly for the for the first defendant P. Casper (self-represented plaintiff)
SOLICITORS:	Herbert Geer for the first defendant