FAA Services Pty Ltd v Procter

[2006] QDC 412

DISTRICT COURT OF QUEENSLAND

CITATION:

FAA Services Pty Ltd v Procter [2006] QDC 412

PARTIES:

FAA SERVICES PTY LTD formerly trading as

FINANCIAL ADVISERS AUSTRALIA PTY LTD        (Plaintiff)

AND

PROCTER  (Defendant)

FILE NO/S:

239 of 2006

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

15 December 2006

DELIVERED AT:

Maroochydore

HEARING DATE:

8 December 2006

JUDGE:

Judge J.M. Robertson

ORDER:

(a)     Summary judgment application dismissed 

(b)     Paragraph 4(b), (c), (d), (e), (f), (g), (h) and (i) and 5(a) of the Defence struck out.

(c)     Defendant given leave to replead within 14 days.

CATCHWORDS:

BREACH OF CONTRACT - summary judgment application and pleading dispute, where plaintiff sues on written contract alleging breach of restraint of trade clause.

Cases cited:

Grey v Morris [2004] QCA 5

Legislation:

Uniform Civil Procedure Rules, r. 292, r. 171

COUNSEL:

R. Fleming (for the plaintiff)

S. Middleton, Solicitor (for the defendant)

SOLICITORS:

Greenhalgh Pickard Solicitors (for the plaintiff)

Griffiths Parry Lawyers (for the defendant)

1. The plaintiff company provides financial planning services to the public through the agency of licensed financial planners.   It is common ground that the defendant Mr Proctor was contracted by the plaintiff as a consultant by contract dated 8 October 2001.  It is also common ground on the pleadings that the defendant terminated the contract on 14 October 2005.  The plaintiff alleges that in breach of Clauses 5.10 and 5.40 of the contract, Mr Proctor approached 34 of the plaintiff’s clients who then became clients of the defendant.  The most significant component of the claim is $68,000 being liquidated damages provided for in Clause 5.40 being $2000 for each client.

Summary Judgment

1. The plaintiff now seeks summary judgment for part of its claim namely $36,000 for 18 clients which it argues Mr Proctor has admitted contacting after termination.

1. Rule 292 of the Uniform Civil Procedure Rules provides a discretion to the court to give summary judgment if satisfied that:

(a)        the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

(b)        there is no need for a trial of the claim or the part of the claim.

1. The phrase “no real prospect” was considered by the Court of Appeal in Grey v Morris [2004] QCA 5. Chesterman J, at paragraph 23 held:

“… summary judgment is not to be given, either to defendant or plaintiff, except where it is just to do so and it will not be just to deprive a party of a trial unless it can be seen that their case is hopeless, or bound to fail.  Unless that can be said of it, the conclusion cannot be reached that a claim or defence has no “real” prospect of success”.

1. Later in that judgment, McMurdo J held [at 46]:

“But in relation to summary judgment for a plaintiff, there was a change from the terms of previous rules to r 292, and each of rr 292 and 293 requires the court to be satisfied that the party against whom…