Dudney v Larsson

[2015] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:

Dudney & Anor v Larsson & Anor [2015] QDC 223

PARTIES:

Dinah Susan DUDNEY and Waldemar George REINTALS

(Plaintiffs/Respondents)

and

Steven William LARSSON

(First Defendant/Applicant)

and

Margaret Gayle LARSSON

(Second Defendant/Applicant)

FILE NO:

Mackay No. 86 of 2013

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

16 September 2015

DELIVERED AT:

Mackay

HEARING DATE:

14 September 2015

JUDGE:

Durward SC DCJ

ORDERS:

1 Application granted

2 The time for the First and Second Defendants to file and serve the Amended Defence in response to the Further Amended Statement of Claim is extended to 06 August 2015.

3 Paragraph 2A of the Further Amended Reply is struck out.

4 The First and Second Defendants have leave to re-plead paragraphs 5A, 5B, 5C (b) and 13A of the Amended Defence within fourteen (14) days.

5 Costs of the Application are reserved.

CATCHWORDS:

PRACTICE & PROCEDURE – PLEADINGS – TIME FOR FILING – EXTENSION OF TIME - where Amended Defence  filed 14 days out of time – whether defendants must rely on Defence with respect to new or revised allegations in Further Amended Statement of Claim – whether reasonable explanation for non-compliance – where no real prejudice to Plaintiffs – where time file and serve Amended Defence extended.

PRACTICE & PROCEDURE – PLEADINGS – NON-ADMISSIONS – where non-admissions pleaded out of time – whether new or revised allegations in Further Amended Statement of Claim thereby constitute deemed admissions – where extension of time to file and serve ordered – where genuine matters of dispute arise on the pleadings.

PRACTICE & PROCEDURE – PLEADINGS – NON-ADMISSIONS – DIRECT EXPLANATION – where reasonableness of enquiries and uncertainty of truth or otherwise of allegations of fact arguably deficient – where leave given to re-plead in respect to certain paragraphs of the Amended Defence.

LEGISLATION:

Uniform Civil Procedure Rules 1999 rules 5, 7, 161, 166, 385

CASES:

NAB Limited v Sinnathamby & Ors [2000] QSC 303; Peterson & Anor v Corby [2014] QDC 177; Collie v Edmund & Ors [2006] QSC 343; Mango Boulevard Pty Ltd v Spencer [2007] QSC 276; Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246; Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116.

COUNSEL:

S J Deaves of Counsel for the Applicants/Defendants

S McLennan of Counsel for the Respondents/Plaintiffs

SOLICITORS:

Macrossan & Amiet, Solicitors for the First and Second Defendants/Applicants

Kelly Legal for the Plaintiffs/Respondents

1. The Applicants/First and Second Defendants (“defendants”) are being sued by the Respondents (“plaintiffs”) on a contract entered into with the plaintiffs in November 2011, alleging that by reason of the plaintiffs’ misleading or deceptive conduct with respect to the sale and purchase of a boat, they have suffered loss and damage.

1. The gravamen of the litigation is the failure of each of two engines on the boat, by “cracking” several times both before and after the contract of sale was completed. 

The application