Eaton v Rare Nominees Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Eaton & Ors v Rare Nominees Pty Ltd [2017] QCA 25

PARTIES:

CHRISTOPHER JOHN EATON
(first appellant)
MODERN CITY HOLDINGS PTY LTD
ACN 122 023 803
(second appellant)
BELINDA JANE EATON
(third appellant)
v
RARE NOMINEES PTY LIMITED AS TRUSTEES OF THE MACKELLAR FAMILY SUPERANNUATION FUND
ACN 094 976 833
(respondent)
E-COASTAL DEVELOPMENTS PTY LTD
ACN 105 138 056 (in liquidation)
(not a party to the appeal)

FILE NO/S:

Appeal No 3537 of 2016
DC No 4799 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 24 March 2016

DELIVERED ON:

3 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2017

JUDGES:

Morrison and Philip McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal dismissed.

2.   Appellants pay the respondent’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – where the defendant applied for summary judgment and, in the alternative, to strike out the plaintiff’s statement of claim – where the plaintiff had an arguable equitable interest in the property which was not properly pleaded – where summary judgment was refused because of the existence of the non-pleaded equitable claim – where the application to strike out the pleadings was refused because the plaintiff proposed to amend the pleadings in any event – where costs were awarded against the defendant – whether the trial judge’s discretion to order costs miscarried

COUNSEL:

The first appellant appeared on his own behalf, and on behalf of the second and third appellants
B Hall for the respondent

SOLICITORS:

The first appellant appeared on his own behalf, and on behalf of the second and third appellants
Robinson Locke Litigation for the respondent

1. MORRISON JA:  I have read the reasons of Philip McMurdo JA and agree with those reasons and the orders his Honour proposes.

2. PHILIP McMURDO JA: The appellants are defendants in a proceeding in the District Court in which the respondent is the plaintiff. They applied for summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules (Qld), against the plaintiff for the entirety of its claims against them. Alternatively they applied to strike out the then statement of claim.

3. A judge heard and determined those applications on 24 March 2016.  He dismissed the application for summary judgment, rejecting an argument that the claims against the defendants had no prospects of success.  He declined to strike out the statement of claim, not because it was in all respects satisfactory, but because the plaintiff said that it should and would be amended, so that it would be futile to consider it.  The defendants’ applications were thereby dismissed.  His Honour ordered them to pay the costs of the applications.

4. The defendants appealed against those orders.  However by an amended notice of appeal, they abandoned their appeal against the refusal of summary judgment.…