Clo Developments Pty Ltd v Sarv Pty Ltd - [2014] QSC 159

SUPREME COURT OF QUEENSLAND

CITATION:	Clo Developments Pty Ltd v Sarv Pty Ltd & Anor [2014] QSC 159
PARTIES:	GOLD COAST CITY COUNCIL (applicant) v DELFIN GC PTY LTD ACN 085 207 174 (first respondent) DELFIN REALTY (QLD) PTY LTD ACN 003 581 191 (second respondent) LEND LEASE COMMUNITIES (AUSTRALIA) LIMITED (FORMERLY DELFIN LEND LEASE LTD) ACN 000 966 085 (third respondent)
FILE NO:	BS 8205 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED EX TEMPORE ON:	3 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2014
JUDGE:	Peter Lyons J
ORDERS:	1. Pursuant to the r 188 of the Uniform Civil Procedure Rules 1999, the fourth party has leave to withdraw any deemed admissions in paragraphs 5 and 8 of the defence of the fourth party to the second amended fourth party statement of claim filed in this Honourable Court on 16 January 2014. 2. The fourth party pay the costs of the first, second and third third parties of the application, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM – ADMISSIONS – where the plaintiff sued the first defendant for misleading conduct regarding infrastructure charges to property the subject of a contract between them – where the first defendant then brought proceedings against the first, second and third third parties alleging misrepresentations by them in respect of infrastructure charges – where the third parties then brought proceedings against the Gold Coast City Council in turn alleging misrepresentations about infrastructure charges – where it had been held that the Council’s defence to the proceedings brought by the third parties included deemed admissions about some representations relating to infrastructure charges – where there was evidence that it was intended that the Council’s defence would deny the representations – where there was evidence that the deemed admissions arose from inadvertence – where the particulars of the representations deemed to be admitted gave rise to a range of possibilities, and it was uncertain which would be relied upon at trial – where some representations were plainly contested and others not accepted – whether the Council should be granted leave to withdraw its deemed admissions Uniform Civil Procedure Rules 1999, r 188 Green v Pearson[2014] QCA 110, followed Hanson Construction Materials Pty Ltd v Norlis Pty Ltd (2010) 79 ASCR 668, cited Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455; [2000] QCA 292; followed
COUNSEL:	D Savage QC for the applicant S Couper QC for the respondents
SOLICITORS:	Gadens for the applicant Carter Newell for the respondents

PETER LYONS J: The plaintiff in these proceedings alleged that it entered into a contract, in June 2008, to purchase from the first defendant property described as Lot 130 on SP206406, County of Ward, Parish of Gilston, said to be located at Varsity Lakes in the City of Gold Coast.

It sued the first defendant 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.

Continue reading Clo Developments Pty Ltd v Sarv Pty Ltd

Details

AGLC: Clo Developments Pty Ltd v Sarv Pty Ltd [2014] QSC 159
Case: [2014] QSC 159
Decision Date: 3 June 2014

CaseChat Overview and Summary

The plaintiff, Clo Developments Pty Ltd, sued the first defendant, Sarv Pty Ltd, for misleading conduct relating to infrastructure charges for property covered by a contract between the parties. Sarv Pty Ltd subsequently brought proceedings against the first, second, and third defendants, alleging misrepresentations by them regarding infrastructure charges. These third defendants then sued the Gold Coast City Council, alleging misrepresentations about infrastructure charges. The Council's defence to the third defendants' claim included deemed admissions about some representations relating to infrastructure charges. However, evidence suggested that the Council's defence intended to deny these representations, and the deemed admissions arose from inadvertence. The particulars of the representations deemed to be admitted led to a range of possibilities, and it was uncertain which would be relied upon at trial. Some representations were plainly contested, while others were not accepted. The Council sought leave to withdraw the deemed admissions.

The central legal issue was whether the Council should be granted leave to withdraw the deemed admissions. The court considered the appropriate exercise of discretion under Rule 188 of the Uniform Civil Procedure Rules 1999. The court held that the deemed admissions were inadvertently made, and the Council's defence clearly intended to deny the representations. Furthermore, the particulars of the representations were ambiguous, leading to uncertainty about which representations would be relied upon at trial. Given these factors, the court concluded that it was appropriate to grant the Council leave to withdraw the deemed admissions.

In light of the above, the court granted the fourth party leave to withdraw the deemed admissions in paragraphs 5 and 8 of the defence. The court also ordered the fourth party to pay the costs of the first, second, and third parties for the application, to be assessed on the standard basis. The court considered the inadvertent nature of the deemed admissions, the Council's clear intention to deny the representations, and the ambiguity in the particulars of the representations. These factors justified the exercise of discretion in favour of allowing the withdrawal of the deemed admissions.

Orders

Orders of the court

1. Pursuant to the r 188 of the Uniform Civil Procedure Rules 1999, the fourth party has leave to withdraw any deemed admissions in paragraphs 5 and 8 of the defence of the fourth party to the second amended fourth party statement of claim filed in this Honourable Court on 16 January 2014.

2. The fourth party pay the costs of the first, second and third third parties of the application, 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.