Citimax Henderson Pty Ltd v Cobblestone Constructions Pty Ltd - [2018] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:

Citimax Henderson Pty Ltd v Cobblestone Constructions Pty Ltd & Anor [2018] QDC 154

PARTIES:

CITIMAX HENDERSON PTY LTD (ACN 616 130 806)
(Plaintiff)

v

COBBLE STONE CONSTRUCTIONS PTY LTD (ACN 611 123 016)
(First Defendant)

And

ADAM WILLIAM SCOTT ALLEN
(Second Defendant)

FILE NO/S:

1276/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2018 and 3 August 2018

JUDGE:

Williamson QC DCJ

ORDER:

1. By 4pm on 24 August 2018, the defendants file and serve a further amended defence consistent with these reasons for judgment.

2. The parties have liberty to apply with respect to costs.

CATCHWORDS:

COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – LEAVE TO WITHDRAW ADMISSIONS – where defendants bring application for leave to withdraw admissions – where defendants bring application for leave to withdraw deemed admissions – whether there is a genuine dispute about matters admitted or deemed to be admitted – whether leave to withdraw admissions should be granted in the circumstances

CASES:

Hanson Construction Materials P/L v Norlis & Ors [2010] QSC 34

Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292

COUNSEL:

Ms Hoiberg for the plaintiff/respondent

Mr Kipps for the defendants/applicants

SOLICITORS:

Allens for the plaintiff/respondent

Irish Bentley Lawyers for the defendants/applicants

Introduction

Citimax Henderson Pty Ltd wishes to redevelop land in which it has an interest at Everton Hills. For this purpose, it entered into a construction contract with a civil earthworks contractor, Cobblestone Constructions Pty Ltd. Mr Allen is the sole director of Cobblestone Constructions. Citimax Henderson commenced these proceedings to sue for recovery of money alleged to be owing to it under a progress certificate issued under the contract between it and Cobblestone Constructions. The debt is denied by Cobblestone Constructions. A Claim and Statement of Claim was filed in this Court on 6 April 2018. A Notice of Intention to Defend and Defence and Counterclaim were filed on behalf of the defendants on 11 May 2018. The defence filed was characterised by Mr Kipps, counsel for the Defendants, as a holding defence.

On 31 May 2018, the defendants filed an Amended Defence and Counterclaim. They accept that this document seeks to withdraw admissions made in the holding defence for which leave is required under r.188 of the Uniform Civil Procedure Rules 1999 (‘UCPR’). This is an application by the defendants for leave under r.188. Citimax Henderson has cross-applied to strike out those aspects of the Amended Defence and Counterclaim that seek to withdraw admissions.

For the reasons that follow, I direct the defendants file and serve a Further Amended Defence and Counterclaim consistent with these reasons. I will allow 14 days for this to occur. The parties have liberty to apply with respect to costs.

Rule 188 and relevant principles

Rule 188 of the UCPR provides that a party may withdraw an admission in a pleading only with the Court’s leave. Leave to withdraw is not obtained for…

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: [2018] QDC 154
Decision Date: 10 August 2018

CaseChat Overview and Summary

Citimax Henderson Pty Ltd (the plaintiff) brought proceedings against Cobblestone Constructions Pty Ltd (the defendant) in the Supreme Court of Queensland. The plaintiff claimed damages for breach of contract and negligence arising out of the construction of a building in Brisbane. The defendant, in response, admitted certain facts and made certain deemed admissions. The defendant subsequently sought leave to withdraw these admissions.

The primary legal issue before the court was whether there existed a genuine dispute about the matters that had been admitted or deemed to be admitted by the defendant. The court had to determine if the defendant had a valid reason to withdraw these admissions and whether, in the circumstances, it was just for the defendant to be granted leave to withdraw them. The court had to balance the principle of finality in litigation against the need for fairness and justice in individual cases.

The court found that there was no genuine dispute about the matters admitted or deemed to be admitted by the defendant. It considered that the defendant's reasons for seeking to withdraw the admissions were not compelling and that the application was an attempt to relitigate issues that had already been determined. The court held that it was not just for the defendant to be granted leave to withdraw the admissions. The court ordered that the defendant must file and serve a further amended defence by a specified date, consistent with the reasons for judgment. Additionally, the parties were granted liberty to apply with respect to costs.

Orders

Orders of the court

1. By 4pm on 24 August 2018, the defendants file and serve a further amended defence consistent with these reasons for judgment.

2. The parties have liberty to apply with respect to costs.

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:	Citimax Henderson Pty Ltd v Cobblestone Constructions Pty Ltd & Anor [2018] QDC 154
PARTIES:	CITIMAX HENDERSON PTY LTD (ACN 616 130 806) (Plaintiff) v COBBLE STONE CONSTRUCTIONS PTY LTD (ACN 611 123 016) (First Defendant) And ADAM WILLIAM SCOTT ALLEN (Second Defendant)
FILE NO/S:	1276/18
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	10 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2018 and 3 August 2018
JUDGE:	Williamson QC DCJ
ORDER:	1. By 4pm on 24 August 2018, the defendants file and serve a further amended defence consistent with these reasons for judgment. 2. The parties have liberty to apply with respect to costs.
CATCHWORDS:	COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – LEAVE TO WITHDRAW ADMISSIONS – where defendants bring application for leave to withdraw admissions – where defendants bring application for leave to withdraw deemed admissions – whether there is a genuine dispute about matters admitted or deemed to be admitted – whether leave to withdraw admissions should be granted in the circumstances
CASES:	Hanson Construction Materials P/L v Norlis & Ors [2010] QSC 34 Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292
COUNSEL:	Ms Hoiberg for the plaintiff/respondent Mr Kipps for the defendants/applicants
SOLICITORS:	Allens for the plaintiff/respondent Irish Bentley Lawyers for the defendants/applicants