CQ Field Mining Services Pty Ltd v Deguara - [2022] QDC 42

DISTRICT COURT OF QUEENSLAND

CITATION:

CQ Field Mining Services Pty Ltd v Deguara

[2022] QDC 42

PARTIES:

CQ FIELD MINING SERVICES PTY LTD

(appellant)

v

WAYNE MICHAEL DEGUARA

(respondent)

FILE NO:

49/21

DIVISION:

Civil

PROCEEDING:

Appeal from Interlocutory Decision

ORIGINATING COURT:

Magistrates Court at Mackay

DELIVERED ON:

3 March 2022

DELIVERED AT:

Mackay

HEARING DATE:

21 February 2022

JUDGE:

Loury QC DCJ

ORDER:

1.   The appeal is allowed to the extent that the following orders made in the Mackay Magistrates Court on 18 August 2021 are set aside:

                 I.      Dismissing an application for an extension of time within which to file the Second Amended Reply and striking out the Second Amended Reply;

               II.      Refusing leave to withdraw deemed admissions.

2.   The plaintiff is given leave to withdraw the deemed admissions.

3.   Extend time for the plaintiff to file the second amended reply to 9 July 2021.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 166

CASES:

Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198

Hanson Construction Material Pty Ltd v Davey & Anor [2010] QCA 246

Manikis & Anor v Byrne & Anor [2021] QDC 185

Pattison v Shortman [2010] QDC 475

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Rigato Farms v Rodolfi [2000] QCA 292

COUNSEL:
S McLennan for the appellant

M De Waard for the respondent

SOLICITORS:
McKays Solicitors for the appellant

Kelly Legal for the respondent

Introduction

This is an appeal against orders made by a learned Magistrate refusing the appellant plaintiff an extension of time within which to file a second amended reply, and refusing leave to withdraw deemed admissions caused by the failure to file the second amended reply.
This is therefore an appeal against an interlocutory decision.
Background to the applications
On 23 April 2014 the appellant plaintiff commenced proceedings against the respondent defendant in the Magistrates Court of Queensland, Mackay Registry. For ease of reference I will refer to the appellant as the plaintiff and the respondent as the defendant in these reasons.
The plaintiff seeks the payment of $105,257.68 for services provided to Minerite Pty Ltd. The sole director of Minerite Pty Ltd during the service period (16 June 2013 – 16 November 2013) was the defendant. The plaintiff is suing the defendant pursuant to the terms of a contract purportedly signed by the defendant guaranteeing the payment of all monies due and payable to the plaintiff by Minerite Pty Ltd.
On 12 June 2014 the defendant filed its Notice of Intention to Defend and Defence.
On 30 June 2014 the plaintiff filed its Reply. On 24 November 2017 the plaintiff filed an Amended Statement of Claim. On 8 December 2017 the respondent filed an Amended Defence.
On 13 December 2019 the original plaintiff who brought the claim (CQ Industries Pty Ltd) filed an Amended Claim which sought to substitute the current plaintiff. It did not change the relief sought. CQ Industries Pty Ltd went into liquidation on 29 April 2019. The plaintiff purportedly…

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: [2022] QDC 42
Decision Date: 3 March 2022

CaseChat Overview and Summary

The case of CQ Field Mining Services Pty Ltd v Deguara involves an appeal against an interlocutory decision made in the Magistrates Court of Queensland, Mackay Registry. The plaintiff, CQ Field Mining Services Pty Ltd, is seeking the payment of $105,257.68 from the defendant, Deguara, for services provided to Minerite Pty Ltd, of which Deguara was the sole director during the relevant period. The plaintiff is suing on the basis of a contract guaranteeing payment, allegedly signed by Deguara. The central dispute revolves around the validity of the assignment of the debt from CQ Industries Pty Ltd to the plaintiff, the authenticity of Deguara's signature on the guarantee, and whether there was an effective acceptance of the guarantee by CQ Industries Pty Ltd.

The legal issues before the court were whether the trial should proceed with the deemed admissions made by the plaintiff and the validity of the defendant's Second Further Amended Defence. Specifically, the court had to consider the timeliness and admissibility of the plaintiff's Second Amended Reply, as well as the defendant's ability to rely on new evidence and the forensic handwriting report. The court also needed to decide on the relevance and admissibility of the Second Further Amended Defence, particularly in light of the defendant's reliance on new evidence and the forensic handwriting expert's report.

The court found that the trial judge had erred in dismissing the plaintiff's application for an extension of time to file the Second Amended Reply and in striking it out. The judge had also wrongly refused the plaintiff leave to withdraw the deemed admissions. The appeal was allowed in part, setting aside these orders. The court granted the plaintiff leave to withdraw the deemed admissions and extended the time for filing the Second Amended Reply to 9 July 2021. The appeal was limited to these specific orders, and no further issues were addressed.

Orders

Orders of the court

1. The appeal is allowed to the extent that the following orders made in the Mackay Magistrates Court on 18 August 2021 are set aside:

I. Dismissing an application for an extension of time within which to file the Second Amended Reply and striking out the Second Amended Reply;

II. Refusing leave to withdraw deemed admissions.

2. The plaintiff is given leave to withdraw the deemed admissions.

3. Extend time for the plaintiff to file the second amended reply to 9 July 2021.

Background

Background to the litigation

This is therefore an appeal against an interlocutory decision. Background to the applications On 23 April 2014 the appellant plaintiff commenced proceedings against the respondent defendant in the Magistrates Court of Queensland, Mackay Registry. For ease of reference I will refer to the appellant as the plaintiff and the respondent as the defendant in these reasons. The plaintiff seeks the payment of $105,257.68 for services provided to Minerite Pty Ltd. The sole director of Minerite Pty Ltd during the service period (16 June 2013 – 16 November 2013) was the defendant. The plaintiff is suing the defendant pursuant to the terms of a contract purportedly signed by the defendant guaranteeing the payment of all monies due and payable to the plaintiff by Minerite Pty Ltd. On 12 June 2014 the defendant filed its Notice of Intention to Defend and Defence. On 30 June 2014 the plaintiff filed its Reply. On 24 November 2017 the plaintiff filed an Amended Statement of Claim. On 8 December 2017 the respondent filed an Amended Defence. On 13 December 2019 the original plaintiff who brought the claim (CQ Industries Pty Ltd) filed an Amended Claim which sought to substitute the current plaintiff. It did not change the relief sought. CQ Industries Pty Ltd went into liquidation on 29 April 2019. The plaintiff purportedly entered into a deed of assignment with CQ Industries Pty Ltd which assigned the debt owed by the defendant to the plaintiff. On 13 December 2019 the plaintiff (as substituted) filed a Further Amended Statement of Claim. Relevantly it pleads: (I)CQ Industries Pty Ltd assigned to the plaintiff the debt owed to it by the defendant. (II)On 25 May 2012 the defendant entered into an agreement with CQ Industries Pty Ltd to guarantee all money due to CQ Industries Pty Ltd by the defendant’s company.(III)The guarantee was signed by the defendant on 25 May 2012 or in the alternative the defendant authorised someone else to sign the guarantee on his behalf. On 3 February 2020 the defendant filed a Further Amended Defence. On 10 March 2020 the plaintiff filed an Amended Reply. On 23 September 2020 the plaintiff’s solicitor wrote to the defendant’s solicitor enclosing a Request for Trial Date. On 9 October 2020 the defendant’s solicitor wrote to the plaintiff’s solicitor enclosing a Notice to Admit Facts and Notices of Non-Party Disclosure. On 30 November 2020 the defendant’s solicitor wrote to the plaintiff’s solicitor advising that they expected to receive further evidence that week which would be relied upon by the defendant. On 11 December 2020 the defendant’s solicitor provided a report from a forensic handwriting expert to the plaintiff’s solicitor also indicating that the defendant intended to amend his defence upon receipt of some of the documents sought pursuant to the Notice of Non-Party Disclosure. On 12 April 2021 the defendant filed a Second Further Amended Defence. Relevantly it pleads that: (I)The purported assignment was invalid.(II)The defendant did not provide any guarantee or sign the guarantee as confirmed by a forensic handwriting report.(III)The defendant did not authorise any person to sign the guarantee on his behalf. (IV)CQ Industries Pty Ltd did not communicate acceptance of the guarantee such that there is no binding agreement.

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:	CQ Field Mining Services Pty Ltd v Deguara [2022] QDC 42
PARTIES:	CQ FIELD MINING SERVICES PTY LTD (appellant) v WAYNE MICHAEL DEGUARA (respondent)
FILE NO:	49/21
DIVISION:	Civil
PROCEEDING:	Appeal from Interlocutory Decision
ORIGINATING COURT:	Magistrates Court at Mackay
DELIVERED ON:	3 March 2022
DELIVERED AT:	Mackay
HEARING DATE:	21 February 2022
JUDGE:	Loury QC DCJ
ORDER:	1. The appeal is allowed to the extent that the following orders made in the Mackay Magistrates Court on 18 August 2021 are set aside: I. Dismissing an application for an extension of time within which to file the Second Amended Reply and striking out the Second Amended Reply; II. Refusing leave to withdraw deemed admissions. 2. The plaintiff is given leave to withdraw the deemed admissions. 3. Extend time for the plaintiff to file the second amended reply to 9 July 2021.
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld) r 166
CASES:	Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198 Hanson Construction Material Pty Ltd v Davey & Anor [2010] QCA 246 Manikis & Anor v Byrne & Anor [2021] QDC 185 Pattison v Shortman [2010] QDC 475 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Rigato Farms v Rodolfi [2000] QCA 292
COUNSEL:	S McLennan for the appellant M De Waard for the respondent
SOLICITORS:	McKays Solicitors for the appellant Kelly Legal for the respondent