Davy v Hoad - [2020] QDC 41

DISTRICT COURT OF QUEENSLAND

CITATION:

Davy v Hoad & Another [2020] QDC 41

PARTIES:

DAVY
(Respondent)

and

v

HOAD & Another

(Applicants)

FILE NO:

2500/19

DIVISION:

District Court

PROCEEDING:

Hearing of an application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10/3/2020 (ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATES:

10 March 2020

JUDGE:

RS Jones DCJ

Self-representatives

R Davy for the respondent

T Hoad and M Hoad for the applicants

1.I am concerned here with an application on behalf of the defendants for judgment pursuant to rule 293 of the Uniform Civil Procedure Rules 1999, or in the alternative that the plaintiff’s claim be struck out. Costs are also sought on an indemnity basis.
2.This is an extremely unfortunate case, as the parties were once clearly very close friends. It would appear that the genesis for this ongoing dispute is as a consequence of the incarceration of the plaintiff for a period of time, during which the defendants took possession of and cared for certain property, of the plaintiff.
3.As I have said, judgment is being sought pursuant to rule 293 for judgment to be entered in favour of the defendants. The tests for entering judgment in favour of the defendant are the same as those that apply in respect of summary judgment for the plaintiff pursuant to rule 292 of the Uniform Civil Procedure Rules.
4.Such orders or judgments are made in only quite special or exceptional circumstances. That is where there is no real prospect of the plaintiff succeeding in his action. Statements have been made in a number of judgments, and in particular, the Deputy Commissioner of Taxation v Salcedo [2005] 2 QLR 232. Other cases also include judgments of both the Court of Appeal and the High Court.
5.In Rich v CGU Insurance Limited [2005] 214 ALR 370, it was said:
6.Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way.
7.In Salcedo, Justice of Appeal Williams quoted from the English judgment of Swaine v Hillman [2001] 1 All ER 91, where Lord Woolf, Master of the Rolls said:
8.The words “no real prospect of succeeding” do not need any amplification. They speak for themselves. The word “real” distinguishes fanciful prospects or success, or they direct the court to the need to see whether is a realistic as opposed to a fanciful prospect of success.
9.It has also been said that the language used is not susceptible to much elaboration. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes…

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: [2020] QDC 41
Decision Date: 10/3/2020 (ex-tempore)

CaseChat Overview and Summary

Davy v Hoad was an application for judgment on the pleadings and in the alternative, for the plaintiff’s claim to be struck out. The matter was heard in the District Court of Queensland, Brisbane. The applicants sought judgment in their favour pursuant to rule 293 of the Uniform Civil Procedure Rules 1999, and alternatively, that the plaintiff’s claim be struck out, and costs on an indemnity basis. The case involved a dispute between former friends who had fallen out over the care of certain property belonging to the plaintiff while he was in prison. The plaintiff’s claim was vague and unsubstantiated, with scandalous allegations of fraud, conspiracy, and theft, but no particulars to substantiate those claims. The plaintiff sought $250,000 in damages, which he could not particularise. The court found that the plaintiff had no real prospect of succeeding in his claim and that the matter should be dismissed. The judge did not make any orders for costs, despite the defendants incurring some costs in relation to the proceedings, as both parties had suffered distress throughout the proceedings. The judge noted that the matter had been dealt with expeditiously due to concessions made by the plaintiff.

Orders