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
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…
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- Case
- [2022] QDC 42
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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