Freeman v Montgomery

[2021] QDC 53

DISTRICT COURT OF QUEENSLAND

CITATION:

Freeman v Montgomery [2021] QDC 53

PARTIES:

FREEMAN, David
(Appellant)

v

MONTGOMERY, Maria Jessica
(Respondent)

FILE NO/S:

BD3327/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland at Brisbane

DELIVERED ON:

19 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2021

JUDGE:

Devereaux SC DCJ

ORDER:

1.   Paragraphs 56 to 58 of the Amended Statement of Claim filed 9 December 2020 be struck out.

2.   Leave to re-plead is refused to the plaintiff.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS –STRIKING OUT – where an application is made for an order striking out paragraphs 56 to 58 of the Amended Statement of Claim pursuant to r 179(1)(b) of the Uniform Civil Procedure Rules 1999 – where the paragraphs seek alternative relief – where the claim is listed for trial in less than two months – whether the paragraphs fail to plead material facts in support of a conclusion of law about a joint endeavour – whether the paragraphs require the joinder of a third party.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), r 62, 149, 179(1)(b)

CASES:

Baumgartner v Baumgartner (1987) 164 CLR 137

Giumelli v Giumelli (1999) 196 CLR 101

John Alexander’s Clubs Pty Ltd v White City Tennis Club Limited (2010) 241 CLR 1

Muschinski v Dodds (1985) 160 CLR 583

O’Neill v Robertson-Staton [2015] NSWSC 1949

Riches v Hogben [1985] 2 Qd R 292

West v Mead [2003] NSWSC 161

COUNSEL:

D. Forbes for the applicant

S. Cooper QC and D. Chesterman for the respondent

SOLICITORS:

BJM Law for the applicant

Bransgroves Lawyers for the respondent

1. This is an application for an order striking out certain paragraphs of the Amended Statement of Claim.  The Claim was first filed on 16 September 2019.  It pleads a case in proprietary estoppel and seeks a declaration that the defendant holds property, referred to as the Black Road property, on trust for the plaintiff, and other relief.  A Notice of Intention to Defend was filed on 15 October 2019. 

2. The plaintiff is the defendant’s son.  The Black Road property was adjacent to the plaintiff’s then-residence at Woodwark.  The plaintiff pleads that he was interested in buying the property, and told the defendant about it.  The defendant eventually bought the property in March 2017 and lived in it from around March 2017 to April 2019.

3. Essentially, the plaintiff pleads that between March 2017 and April 2019, relying on statements the defendant made to the effect that the plaintiff and his son would inherit Black Road, he performed work on the property and gave the defendant money for the payment of rates, electricity bills and insurance.  The plaintiff pleads that the defendant left the property in April 2019, in effect inviting him to stay there and maintain and improve it as he wished.  But in July 2019 he received a letter from the defendant’s solicitor informing him the defendant intended to sell the property and he was not to enter it.