Ely Projects Pty Ltd v Stockton - [2025] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

Ely Projects Pty Ltd v Stockton & Anor [2025] QDC 151

PARTIES:

Ely Projects Pty Ltd

ACN 642 077 183

(Plaintiff/Respondent)

v

Glenn Stockton

(First Defendant/Applicant)

and

Tonya Usher-Stockton

(Second Defendant/Applicant)

FILE NO:

1578 of 2024

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

24 October 2025

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2025

JUDGE:

Byrne KC DCJ

ORDERS:

1.       The defendants’ first and third applications in the application filed 10 April 2025 are refused.

2.       The defendants’ second application in the application filed 10 April 2025 is allowed, but only to the extent that paragraph 6 of the Amended Statement of Claim is struck out. The plaintiff has leave to re-plead that paragraph within 28 days of the delivery of these reasons.

3. The plaintiff has leave, if it is required, under r. 377 of the UCPR to amend the ASOC in any respect to provide clarity to the pleadings in paras. 6 and 17 and Schedules 1, 3 and 4.

4.       The defendants’ second application in the application filed 10 April 2025 is otherwise refused.

5.       The time for the defendants to file and serve any Defence be extended to 28 days after service of any amended pleading by the Plaintiffs.

6.       I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORIES – PLEADINGS – STRIKING OUT – where the plaintiff and defendant are parties to a contract for the construction of residential premises – where the plaintiff commenced proceedings for damages for breach of contract or, alternatively, a claim in quantum meruit – where the defendant’s apply on several bases to strike out the whole or part of the Amended Statement of Claim (“ASOC”) – where the defendants have not yet filed a Defence – where the defendants apply for the whole of the ASOC to be struck out because it discloses no reasonable cause of action by virtue of a void contract – where the defendants alternatively apply for the striking out of parts of the ASOC and in the further alternatively for further and better particulars – whether the ASOC should be struck out in whole or in part – whether the plaintiff should provide further and better particulars.

LEGISLATION:

Queensland Building and Construction Commission Act 1991, s. 108D, sch 1B, ss. 14, 18, 40, 41, 44.

Uniform Civil Procedure Rules 1999, ss. 135, 171, 444, 445.

CASES:

ABB Power Generation Ltd v Chapple (2001) WAR 158.

Adani Mining v Pennings [2021] QSC 343.
Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82.
Boys v Imperial Homes (Qld) Pty Ltd [2024] QCATA 35.
Dey v Victorian Railways Commissioners (1949) 78 CLR 62.
Equititrust Limited v Tucker and Others (No. 2) [2019] QSC 248.
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
Kimberley College Ltd v Thomson [2019] QSC 227.
Ooralea…

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 Ely Projects Pty Ltd v Stockton

Details

AGLC: Ely Projects Pty Ltd v Stockton [2025] QDC 151
Case: [2025] QDC 151
Decision Date: 24 October 2025

CaseChat Overview and Summary

The case of Ely Projects Pty Ltd v Stockton involved a dispute between a plaintiff and a defendant, parties to a contract for the construction of residential premises. The plaintiff initiated proceedings seeking damages for breach of contract or, alternatively, a claim in quantum meruit. The defendants filed an application seeking to strike out the whole or part of the Amended Statement of Claim on various grounds, including that the contract was void and that the plaintiff had failed to provide sufficient particulars. The defendants had not yet filed a Defence.

The court had to determine whether the Amended Statement of Claim should be struck out in whole or in part and whether the plaintiff should provide further and better particulars. The court considered the arguments made by the defendants and the applicable legal principles regarding striking out pleadings and requests for particulars. The court concluded that the issues with the Amended Statement of Claim were neither deep nor wide and that it would be premature to strike out the whole of the Amended Statement of Claim based only on the deficiencies in one paragraph.

The court allowed the defendants' second application to the extent that paragraph 6 of the Amended Statement of Claim was struck out. The court gave the plaintiff leave to re-plead that paragraph within 28 days of the delivery of the reasons. The court refused the defendants' first and third applications and their second application to the extent that it sought further and better particulars. The court also allowed the plaintiff leave to amend the Amended Statement of Claim in any respect to provide clarity to the pleadings in certain paragraphs and schedules. The court directed that the time for the defendants to file and serve any Defence be extended to 28 days after service of any amended pleading by the plaintiffs. The court reserved the question of costs for further hearing.

Orders

Orders of the court

1. The defendants’ first and third applications in the application filed 10 April 2025 are refused.

2. The defendants’ second application in the application filed 10 April 2025 is allowed, but only to the extent that paragraph 6 of the Amended Statement of Claim is struck out. The plaintiff has leave to re-plead that paragraph within 28 days of the delivery of these reasons.

3. The plaintiff has leave, if it is required, under r. 377 of the UCPR to amend the ASOC in any respect to provide clarity to the pleadings in paras. 6 and 17 and Schedules 1, 3 and 4.

4. The defendants’ second application in the application filed 10 April 2025 is otherwise refused.

5. The time for the defendants to file and serve any Defence be extended to 28 days after service of any amended pleading by the Plaintiffs.

6. I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, it is a matter that should be clarified, if it really requires clarification, through a request for better particulars. Nothing has been put before me to establish that an earlier request for better particulars has been refused or not complied with, and it would be premature for me to make any such order in those circumstances.Conclusions The only paragraph of the ASOC that is to be struck out is para. 6, for the reasons outlined above. The plaintiff will be given leave to re-plead within 28 days. Given the limited nature of the interference with the ASOC, it is not an appropriate instance to strike out the whole of the ASOC based only on the deficiencies in para. 6. Put another way, contrary to the submissions of the defendants, the issues with the ASOC are neither deep nor wide.[23][23]cf Ooralea Developments Pty Ltd & Ors v Mackey Regional Council [2022] QSC 75, [70]. In no instance has the appropriateness of an order for further and better particulars been established.Costs As foreshadowed in the course of oral submissions, I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ely Projects Pty Ltd v Stockton & Anor [2025] QDC 151
PARTIES:	Ely Projects Pty Ltd ACN 642 077 183 (Plaintiff/Respondent) v Glenn Stockton (First Defendant/Applicant) and Tonya Usher-Stockton (Second Defendant/Applicant)
FILE NO:	1578 of 2024
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	24 October 2025
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2025
JUDGE:	Byrne KC DCJ
ORDERS:	1. The defendants’ first and third applications in the application filed 10 April 2025 are refused. 2. The defendants’ second application in the application filed 10 April 2025 is allowed, but only to the extent that paragraph 6 of the Amended Statement of Claim is struck out. The plaintiff has leave to re-plead that paragraph within 28 days of the delivery of these reasons. 3. The plaintiff has leave, if it is required, under r. 377 of the UCPR to amend the ASOC in any respect to provide clarity to the pleadings in paras. 6 and 17 and Schedules 1, 3 and 4. 4. The defendants’ second application in the application filed 10 April 2025 is otherwise refused. 5. The time for the defendants to file and serve any Defence be extended to 28 days after service of any amended pleading by the Plaintiffs. 6. I will hear the parties as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORIES – PLEADINGS – STRIKING OUT – where the plaintiff and defendant are parties to a contract for the construction of residential premises – where the plaintiff commenced proceedings for damages for breach of contract or, alternatively, a claim in quantum meruit – where the defendant’s apply on several bases to strike out the whole or part of the Amended Statement of Claim (“ASOC”) – where the defendants have not yet filed a Defence – where the defendants apply for the whole of the ASOC to be struck out because it discloses no reasonable cause of action by virtue of a void contract – where the defendants alternatively apply for the striking out of parts of the ASOC and in the further alternatively for further and better particulars – whether the ASOC should be struck out in whole or in part – whether the plaintiff should provide further and better particulars.
LEGISLATION:	Queensland Building and Construction Commission Act 1991, s. 108D, sch 1B, ss. 14, 18, 40, 41, 44. Uniform Civil Procedure Rules 1999, ss. 135, 171, 444, 445.
CASES:	ABB Power Generation Ltd v Chapple (2001) WAR 158. Adani Mining v Pennings [2021] QSC 343. Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82. Boys v Imperial Homes (Qld) Pty Ltd [2024] QCATA 35. Dey v Victorian Railways Commissioners (1949) 78 CLR 62. Equititrust Limited v Tucker and Others (No. 2) [2019] QSC 248. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Kimberley College Ltd v Thomson [2019] QSC 227. Ooralea…