Geaney v Adams as Trustee for the GAA Discretionary Trust

[2006] QDC 317

[2006] QDC 317

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1232 of 2006

PHILIPPA GEANEY	First Plaintiff
and
RACHEL LOUISE WOLFE	Second Plaintiff
and
GRANT ANTHONY ADAMS AS TRUSTEE FOR THE GAA DISCRETIONARY TRUST	First Defendant
and
FREYA ANGELA O'SULLIVAN AS TRUSTEE FOR THE GAA DISCRETIONARY TRUST	Second Defendant
and
GRANT ANTHONY ADAMS	Third Defendant
and
FREYA ANGELA O'SULLIVAN	Fourth Defendant
and
ROBERT IAN HITCHCOCK	Fifth Defendant
and
MICHAEL KEVIN THORN	Sixth Defendant
and
SUZANNE MONICA THORN	Seventh Defendant
and
MATTHEW JAY GRIFFIN	Eight Defendant
and
ANTHONY JOHN THOMPSON	Ninth Defendant
and
JANINE FRANCIS WHITE	Tenth Defendant
and
ELAINE ELSIE FITZGERALD	Eleventh Defendant
And
DENNIS DALE	Twelfth Defendant
and
THE METRO ON GIPPS PTY LTD (ACN 108 489 612)	Thirteenth Defendant

BRISBANE

..DATE 11/08/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 150(3) - on application for particulars of statement of claim, plaintiffs required to amend their claim so as not to present as one for liquidated demands only - r 150(3) endorsement to be removed from statement of claim

HIS HONOUR:  This is an application by four of the defendants, namely the fifth, tenth, twelfth and thirteenth for further and better particulars.  It has borne fruit already to the extent of the plaintiffs providing or committing themselves to provide particulars of their claim for the cost of repairs to the leased premises and legal costs.

MR HOCKING:  I'm very sorry to interrupt, your Honour, but the repairs had already been provided, it was just the legal costs.  I apologise.

HIS HONOUR:  Thank you.  There remains a request for particulars of a component of $82,080 which is said to be:

"The amount by which the rent and outgoings between the date of termination and the date of expiry of the lease exceeds the rent and outgoings likely to be received".

The pleading asserts that the rent obtainable in the current rental market is $700 per month whereas that payable under the lease is $2,860 per month.  The thirteenth defendant is the assignee of the lease originally granted to the first, second, third and fourth defendants.  The other defendants are guarantors.

There may have been differences between the parties as to whether the lease agreement terminated at the instance of the landlord or at the instance of the tenant.  That does not seem to matter.  It is common ground that it has come to an end, in which circumstances the plaintiffs' claim relevantly is one for damages and, at least for the period from today, unliquidated damages.

I am unable to understand the applicant's request for particulars of the $82,080 claim.  What seems to be sought is the plaintiff's justification for asserting what the current market rent is.  I am told that does not represent what any actual tenant is paying, the premises being vacant at the moment. 

In principle the market rental at any particular time would no doubt be a specific dollar sum.  No one can have any idea what the finding of the Court or other ultimate determination would be.  It could probably guaranteed it would not be exactly $700 per month.

In the circumstances it seems to me the Court should not order any further particulars. 

Ms Gubbins asserts confusion in her clients' camp about the claim they face and in particular because in form it presents as a statement of claim for a liquidated demand, bearing the endorsement required by Rule 150 subrule (3); see form 16.

Given that there's a notice of intention to defend and accompanying defence on the file, Ms Gubbins' client do not seem to face any possible embarrassment from the claim inappropriately presenting itself as a liquidated one.  Default judgment cannot be sought.  In deference to her concern, however, it is convenient since the matter is before the Court to regularise matters.  The claim has already been amended with the leave of the Court to change the name of the first plaintiff and add the 13th defendant.

It seems to me that things can be got in order if the claim is now amended so that instead of claiming the $82,080 "as money payable pursuant to an agreement", it refers to claims in accordance with a document I have marked Exhibit 1, that replaces what I just read with, "$105,957 damages for breach of contract including $82,080 rent and outgoings pursuant to an agreement lost and the amounts in 2 and 3 below.".

It also clarifies things if there is added a paragraph 3A, "Interest at a commercial rate as set out in an agreement.". That means that the plaintiff's intentions as described by Mr Hocking are reflected in the document and also makes sense of what follows, which is, "4. Alternatively interest pursuant section 47 of the Supreme Court Act 1995 Queensland.".

The issue of costs is contentious.  In the end I resolved that favourably to Ms Gubbins but on the basis that the application bore some fruit - although as Mr Hocking reminded me not to the extent I had originally apprehended.  The plaintiffs are not being held liable in costs for anything to do with the amendments which the Court directs today.  I will make copies of that exhibit available to you.

The Court's orders are:

1. Dismiss the application of the 5th, 10th, 12th and 13th defendants filed the 20th of July 2006;

1. Order that the claim be amended in accordance with Exhibit 1;

1. Order that the statement of claim be amended to delete the notice pursuant to Rule 150 subrule (3) at the end of it;

1. Order that costs be the applicant/defendants' costs in any event.

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