Derek & Pope Developments Pty Ltd v Klauser - [2008] QDC 23

DISTRICT COURT OF QUEENSLAND

CITATION:

Derek & Pope Developments Pty Ltd v Klauser [2008] QDC 23

PARTIES:

RITA MARIA-ANGELA DEREK

(First plaintiff / applicant)

POPE DEVELOPMENTS PTY LTD ACN 103 087 887

(Second plaintiff / respondent)

v

ALFEO KLAUSER

(Defendant / respondent / applicant)

FILE NO/S:

D 260 of 2007

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

26 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

District Court, Brisbane on 11 February 2008

JUDGE:

Rafter SC DCJ

ORDER:

1. Judgment that the defendant pay the first plaintiff $42,000.

2. That the defendant pay the first plaintiff’s costs of the application for summary judgment and the action (including reserved costs) in respect of the claim for $42,000 to be assessed.

3. That the defendant’s application for security for costs be dismissed with costs to be assessed.

4. Order that the matter be otherwise remitted to the Magistrates Court at Southport for further hearing.

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where application brought by the first plaintiff for summary judgment – where plaintiff applies pursuant to Uniform Civil Procedure Rule 292 for judgment against the defendant - whether defendant has no real prospect of successfully defending the claim

CONTRACTS – CONSTRUCTION AND INTERPRETATION – where identity of parties to loan agreement in dispute – where contract lacks formality

PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROECDURE UNDER RULES OF COURT – SECURITY FOR COSTS – where defendant seeks order for security for costs – discretion to award security for costs – small claim to be remitted to Magistrates Court – whether appropriate to order security for costs in those circumstances

Supreme Court Act 1995 s 47(1)
Uniform Civil Procedure Rules r 292, r 670

Bennett & Ors v Stewart & Anor [2008] QSC 20 – cited.
Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 – applied.
Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232 – applied.
E&N Collins Enterprises Pty Ltd & Anor v Kingaroy Mall Pty Ltd & Ors [2006] QSC 187 – cited.
Nambour Valley Estates Pty Ltd v Henebery Holdings Investment Trust & Anor [2007] QSC 393 – cited.
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 – cited.
Programmed Solutions Pty Ltd v Dectar Pty Ltd [2007] QCA 385 – applied.
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 – applied.
Toyota Motor Corporation Australia Ltd & Anor v Ken Morgan Motors Pty Ltd & Ors [1994] 2 VR 106 – cited.

COUNSEL:

R D Green for the first and second plaintiffs

W A J Colbron, solicitor, for the defendant

SOLICITORS:

Derek & Dwyer for the first and second plaintiffs

Colbron & Associates, Kiama NSW for the defendant

Introduction

The first plaintiff makes application pursuant to UCPR 292 for summary judgment against the defendant in the sum of $42,000.

The defendant seeks an order against…

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 Derek & Pope Developments Pty Ltd v Klauser

Details

AGLC: Derek & Pope Developments Pty Ltd v Klauser [2008] QDC 23
Case: [2008] QDC 23
Decision Date: 26 February 2008

CaseChat Overview and Summary

Derek & Pope Developments Pty Ltd and another sought summary judgment against the defendant in the District Court of Queensland. The first plaintiff sought judgment for the amount of $42,000, which was an amount owed under a loan agreement. The defendant argued that there was a genuine dispute over whether the loan agreement had been entered into by the parties. Additionally, the defendant applied for an order for security for costs.

The court considered whether the defendant had a real prospect of successfully defending the claim. The loan agreement was not in formal writing and there was no evidence of the defendant’s signature. The court found that there was no genuine dispute over whether the defendant was liable to the first plaintiff for the amount of the loan. The court also considered the defendant’s application for security for costs, and found that it was not appropriate to make such an order in the circumstances of this case.

The court made judgment in favour of the first plaintiff for the amount of $42,000, and dismissed the defendant’s application for security for costs. The court remitted the matter to the Magistrates Court at Southport for further hearing. The court also ordered that the defendant pay the first plaintiff’s costs of the application for summary judgment and the action.

Orders

Orders of the court

1. Judgment that the defendant pay the first plaintiff $42,000.

2. That the defendant pay the first plaintiff’s costs of the application for summary judgment and the action (including reserved costs) in respect of the claim for $42,000 to be assessed.

3. That the defendant’s application for security for costs be dismissed with costs to be assessed.

4. Order that the matter be otherwise remitted to the Magistrates Court at Southport for further hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Derek & Pope Developments Pty Ltd v Klauser [2008] QDC 23
PARTIES:	RITA MARIA-ANGELA DEREK (First plaintiff / applicant) POPE DEVELOPMENTS PTY LTD ACN 103 087 887 (Second plaintiff / respondent) v ALFEO KLAUSER (Defendant / respondent / applicant)
FILE NO/S:	D 260 of 2007
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	26 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	District Court, Brisbane on 11 February 2008
JUDGE:	Rafter SC DCJ
ORDER:	1. Judgment that the defendant pay the first plaintiff $42,000. 2. That the defendant pay the first plaintiff’s costs of the application for summary judgment and the action (including reserved costs) in respect of the claim for $42,000 to be assessed. 3. That the defendant’s application for security for costs be dismissed with costs to be assessed. 4. Order that the matter be otherwise remitted to the Magistrates Court at Southport for further hearing.
CATCHWORDS:	PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where application brought by the first plaintiff for summary judgment – where plaintiff applies pursuant to Uniform Civil Procedure Rule 292 for judgment against the defendant - whether defendant has no real prospect of successfully defending the claim CONTRACTS – CONSTRUCTION AND INTERPRETATION – where identity of parties to loan agreement in dispute – where contract lacks formality PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROECDURE UNDER RULES OF COURT – SECURITY FOR COSTS – where defendant seeks order for security for costs – discretion to award security for costs – small claim to be remitted to Magistrates Court – whether appropriate to order security for costs in those circumstances Supreme Court Act 1995 s 47(1) Uniform Civil Procedure Rules r 292, r 670 Bennett & Ors v Stewart & Anor [2008] QSC 20 – cited. Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 – applied. Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232 – applied. E&N Collins Enterprises Pty Ltd & Anor v Kingaroy Mall Pty Ltd & Ors [2006] QSC 187 – cited. Nambour Valley Estates Pty Ltd v Henebery Holdings Investment Trust & Anor [2007] QSC 393 – cited. Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 – cited. Programmed Solutions Pty Ltd v Dectar Pty Ltd [2007] QCA 385 – applied. Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 – applied. Toyota Motor Corporation Australia Ltd & Anor v Ken Morgan Motors Pty Ltd & Ors [1994] 2 VR 106 – cited.
COUNSEL:	R D Green for the first and second plaintiffs W A J Colbron, solicitor, for the defendant
SOLICITORS:	Derek & Dwyer for the first and second plaintiffs Colbron & Associates, Kiama NSW for the defendant