Chamberlain Nominees Pty Ltd v Klazema - [2006] QDC 133

[2006] QDC 133

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD559 of 2004

CHAMBERLAIN NOMINEES PTY LTD
(ACN 010 069 557)

Plaintiff

and

RICHARD KLAZEMA

and

GILLIAN MAREE WILLIS

First Defendant

Second Defendant

BRISBANE

..DATE 26/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 161, r 163, r 223, r 225 - court declines to make self-executing orders to apply in the event of non-compliance, with orders it did make for particulars and disclosure

HIS HONOUR: The Court makes an order in terms of the initialled draft supplied by Mr Gynther, representing the plaintiff/applicant.

The changes made to the draft are to extend by two weeks the date suggested in his paragraph 3; to extend by five weeks the date suggested in his paragraphs 4 and 5; to delete guillotine or, more correctly, self-executing orders which would have led to the striking out of the second defendant's amended defence, counterclaim and set-off, accompanied by leave to the plaintiff to enter judgment if particulars were not supplied or if documents were not disclosed and made available for inspection by the dates indicated.

It is anticipated that in respect of disclosure, which is the subject of the longer enlargement of the suggested periods, there may be difficulties encountered by the second defendant who is the respondent to the application. Accordingly she is granted liberty to apply to seek more time which presumably would only be done on the basis of all reasonable efforts having been made by her to obtain the documents in question.

The underlying circumstances are that the second defendant, represented by Ms Muir, and the first defendant, who has been released from the action, became tenants from the plaintiff of shop premises which were used as a pet shop. The five year term of the lease which was of a shop at Cleveland expired around 2001, but the second defendant remained in possession as a monthly tenant.
It seems that she and the former first defendant were partners in a joint venture which also operated a pet shop at Springwood. The former first defendant looked after that one. The second defendant looked after Cleveland. From 1999 or thereabouts, the second defendant appears to have been running Cleveland on her own.

Another gentleman who appeared to be involved in the circumstances in a commercial way is Mr Scott Chalmers, according to the second defendant's affidavit (a good deal of surgery upon which occurred by agreement of counsel to delete substantial parts of it to which Mr Gynther took objection).

The affidavit indicates that Mr Chalmers' tasks included construction of aquariums for use in the business and overseeing commercial operations of it which extended to "maintenance of certain financial books and records".

One Jock McLaughlin was said to have been brought in by Mr Chalmers to provide accountancy services and Ms Willis says she "was required and did deliver all the business records to McLaughlin on a weekly basis.". She says she doesn't know the whereabouts of any of those three…

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.

Keep reading for free

Create a free CaseChat account to read Chamberlain Nominees Pty Ltd v Klazema and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] QDC 133
Decision Date: 26/04/2006

CaseChat Overview and Summary

Chamberlain Nominees Pty Ltd sued Richard Klazema and Gillian Maree Willis for unpaid rent and outgoings in respect of shop premises used as a pet shop. Willis counterclaimed, alleging various breaches of the lease by the plaintiff and other losses. The court considered an application for particulars and disclosure, and whether to include self-executing orders that would allow the plaintiff to enter judgment if the orders were not complied with. The court found that the plaintiff was entitled to the particulars and disclosure, as the counterclaim involved claims based on calculations that required supporting documents. However, the court declined to include self-executing orders, as it was inappropriate to strike out the counterclaim or parts of it for failure to provide particulars or documents. The court ordered that particulars be supplied within three weeks and documents disclosed within five weeks, with an option for the second defendant to apply for more time if necessary.

The court emphasised that the requested particulars were necessary to fully understand the counterclaim and the basis of calculations such as the claimed loss of $149,000 due to lack of lighting. While the counterclaim was detailed, the court found that the plaintiff was entitled to more information to properly respond. The court also found that the request for disclosure of tax returns, financial documents, and records of acquisitions was reasonable given the nature of the counterclaim. However, the court declined to include self-executing orders that would allow the plaintiff to enter judgment if the orders were not complied with. The court found that striking out the counterclaim or parts of it was too severe a sanction and that more targeted sanctions may be appropriate if there was non-compliance. The court allowed extra time for disclosure to accommodate any difficulties the second defendant may face in obtaining the documents.

Orders