De Marco v Power

[2020] QDC 186

DISTRICT COURT OF QUEENSLAND

CITATION:

De Marco v Power [2020] QDC 186

PARTIES:

ROBERT DE MARCO

(plaintiff)

v

MICHAEL POWER

(first defendant)

and

DENISE POWER

(second defendant)

and

DE MARCO CONSTRUCTIONS PTY LTD

ACN 010 532 475

(defendant by counterclaim)

FILE NO/S:

794/19

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

6 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2020

JUDGE:

Barlow QC DCJ

ORDER:

Judgment for the defendants on the plaintiff’s claim.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT – WHEN GRANTED OR REFUSED AND CONDITIONS – the plaintiff claims on the basis of two substantive causes of action and an estoppel – whether the plaintiff has no real prospect of success in his claim – the defendants’ counterclaim raises many of the factual issues also relevant to the claim – whether there is no need for a trial of the claim

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – the alleged agreement was not signed by on or behalf of the plaintiff or defendants – whether it had no effect and consequently is unenforceable

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – REMUNERATION – the plaintiff claims that, if agreement is not enforceable, he is entitled to fair and reasonable payment for the value of his services – when a claim on a quantum meruit arises – whether the claim is statute barred

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – timing of the plaintiff’s entitlement for payment of services is in dispute – whether the claim is statute barred

Building and Construction Industry Payments Act 2004 (Qld) s 12, s 15, s 17A and sch 2

Domestic Building Contracts Act 2000 (Qld) s 30

Limitation of Actions Act 1974 (Qld) s 10, s 42

Uniform Civil Procedure Rules 1999 (Qld) r 293

Coshott v Lenin [2007] NSWCA 153, applied

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, applied

Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219, distinguished

COUNSEL:

M Campbell (solicitor) for the plaintiff (respondent)

BWJ Kidston for the defendants (applicants)

SOLICITORS:

Crouch & Lyndon Lawyers for the plaintiff

James Varitimos for the defendants

1. This is an application for summary judgment brought by the defendants against the plaintiff. 

2. The application is brought under rule 293 of the Uniform Civil Procedure Rules 1999. The first question under that rule is whether the plaintiff has no real prospect of succeeding on all or part of his claim. That means real prospects as opposed to fanciful prospects.[1]  That question can only be met if I consider that there is a high degree of certainty about the ultimate outcome of the proceeding if it were to go to trial in the ordinary way.[2]

   [1]Deputy Commissioner of Taxation v Salcedo