Glenister v Palazzi
[2015] QDC 281
•11 November 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Glenister v Palazzi & Anor [2015] QDC 281
PARTIES:
SHANNON JON GLENISTER
(plaintiff/respondent)
v
GEOFFREY PETER PALAZZI
and
JULIE ANNE PALAZZI
(defendants/applicants)
FILE NO/S:
333/14
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
11 November 2015
DELIVERED AT:
Southport
HEARING DATE:
9 November 2015
JUDGE:
Horneman-Wren SC DCJ
ORDER:
1. The application is dismissed.
2. I will hear the parties as to costs.
CATCHWORDS:
CONVERSION –POSSESSION OR RIGHT TO POSSESSION –RIGHT TO POSSESSION –where chattels used by business operated on leased premises of the defendant –where plaintiff locked out of premises –whether plaintiff had immediate right to possession of chattels on the premises
LIMITATIONS OF ACTIONS –OTHER GENERAL MATTERS –whether action commenced outside the prescribed six year limitation period –whether action statute barred –where defence under the Limitation of Actions Act 1974 (Qld) not pleaded pursuant to r 150(1)(c) of the UCPR
SUMMARY JUDGMENT –where summary judgment not to be given due to expiration of limitation period where defence under the Limitation of Actions Act 1974 (Qld) not pleaded–where court not satisfied that the plaintiff has no real prospects of succeeding on all or part of the plaintiff’s claim –where application dismissed
Limitation of Actions Act 1974(Qld)
Uniform Civil Procedure Rules 1999 (Qld) , r 150, r 293
The Commonwealth v Verwayn (1990) 170 CLR 349
COUNSEL:
A James for the plaintiff/respondent.
S J Given for the defendants/applicants.
SOLICITORS:
Browns Lawyers for the plaintiff/respondent.
AK Abbot & Co for the defendants/applicants.
The plaintiff, Shannon Jon Glenister, has brought a proceeding in which he alleges that chattels owned by him have been wrongfully detained and/or converted by the defendants. The detinue and/or conversion is alleged to have arisen following the plaintiff having been locked out of premises owned by the defendants and leased, on the plaintiff’s pleading, to him.
The defendants have applied for summary judgment. The first basis upon which they seek judgment can be disposed of briefly.
The defendants say that the action was commenced outside the six year limitation period prescribed by the Limitation of Actions Act 1974. They say that the date nominated by the plaintiff as the date of conversion of the chattels, 21 November 2008, cannot be correct as the plaintiff deposes to the date of the lockout as being 11 September 2008. The defendants say that any cause of action arose on that earlier date. The proceeding was commenced on 20 November 2014 outside of the limitation period.
The plaintiff deposes[1] to an arrangement having been made on or around 21 November 2008 for him to attend the premises so that he could retrieve his chattels. He says that on that occasion he was denied entry to the premises to collect the chattels and noticed that most of them had been pulled apart and were in pieces.
[1]Affidavit of Shannon Jon Glenister filed 16 July 2015, paragraph 19; Court Document 12.
On that basis, there may be a triable issue as to when the defendants intended to exercise dominion over the goods and thus convert them.
However, the more general reason that the defendants’ application for judgment based on the Limitation of Actions Act should be refused is that the defendants have not pleaded that the action is statute barred.
That the action is statute barred may be pleaded in defence of it. But for the defence to be relied upon it must be pleaded.[2] Rule 150(1)(c) of the UCPR requires the defence under the Limitation of Actions Act to be specifically pleaded.
[2]The Commonwealth v Verwayn (1990) 170 CLR 349 at 498.
No application has been made to amend the defence to plead the limitation point.
In the absence of such pleading the Court should not determine a summary judgment application in favour of the defendant on the basis that the action is statute barred.
The other basis on which the defendants contend that summary judgment should be granted is that the plaintiff did not have an immediate right to possession of the goods and, therefore, is unable to sustain an action in detinue or conversion in respect of them.
At paragraph 1 of the statement of claim the plaintiff pleads that he entered into a lease of premises from the defendants. The defendants deny this, alleging that they entered into a lease not with the plaintiff but with a corporation, Snowhite Pastry Pty Ltd (Snowhite). The plaintiff was a director of Snowhite at the relevant time.
The lease is in evidence.[3] Clearly, the corporation, not the plaintiff, was the lessee.
[3]Exhibit SJG1 to the affidavit of Shannon Jon Glenister filed 16 July 2015.
The plaintiff pleads[4] that he was the owner of the various chattels which were present at the leased premises. That was not admitted by the defendants in their defence. They pleaded to having requested further and better particulars and reserved their right to amend their pleading once those particulars are provided.
[4]Paragraph 2 of the statement of claim.
The requested particulars[5] sought, for each chattel, each material fact, matter and circumstance upon which the plaintiff relied in support of the allegation that he was the chattel’s owner.
[5]Exhibit AK1 to the affidavit of Anthony Kennith Abbott filed 15 June 2015; Court Document 9.
The plaintiff’s answer to that request was as follows:
“As to the matters contained in paragraph 2, a business contract of sale bearing the date 11 August 2006 between Gary J and Bronwyn L Roberts as trustee for the Roberts Family Trust and Snow White Pastry Pty Ltd ACN: 121 182 983 contained inter alia:
(i) the sale of business known as ‘Gourmet Bake House’ which included the purchase price ‘Schedule A – Unencumbered plant and equipment’ and particularises the chattels that the plaintiff claims ownership of contained in paragraph 2 of the statement of claim;
(ii) otherwise the plaintiff cannot accurately recall the dates upon which each of the balance of the chattels was purchased.”[6]
[6]Exhibit AK2 to the affidavit of Anthony Kennith Abbott filed 15 June 2015.
Two things may be observed from that answer. First, is that the contract which the plaintiff refers is not one to which he was a party. Whilst subparagraph 2(i) of the answer refers to that contract particularising “the chattels that the plaintiff claims ownership of”, it does not state any facts, matters or circumstances by which such ownership on the part of the plaintiff is asserted.
Secondly, by subparagraph 2(ii) it is apparent that not all of the chattels to which the plaintiff’s claim relates are those included in the business sale contract to which Snowhite was a party. The plaintiff asserts that some of the chattels were purchased at other times; impliedly, by him.
A comparison of the list of chattels in Schedule A to the business contract and those set out in paragraph 2 of the statement of claim indicates that there are more items included in the statement of claim than those acquired under the contract.
In this regard, the plaintiff has deposed to having purchased chattels additional to those included in Schedule A to the business contract and which are included in his statement of claim.[7]
[7]Affidavit of Shannon Jon Glenister filed 16 July 2015, paragraph 6.
In an affidavit sworn on 6 November 2015 and filed by leave on the hearing of the application, the plaintiff provides further explanation of the details relating to the purchase of the chattels.
He states that he and another, Mr Brown, wished to purchase the business in their own names. The contract was prepared by the agents for the seller of the business. He deposes that to the best of his knowledge the contract always had himself and Mr Brown as the buyers of the business, and that he always thought that it was owned by them. He says that the inclusion of Snowhite as the buyer on the face of the contract, by crossing out their individual names and replacing them with the corporate name, had only recently been brought to his attention. He makes some observations about a distinction in the handwriting. He observes that the alteration is not initialled by himself or Mr Brown.
He further observes that there is no reference in the signature block to him or Mr Brown signing in other than their personal capacities. He also observes that the section of the contract specifying the buyer’s requirement for a new lease nominates himself and Mr Brown as the prospective lessees.
Finally, he states that the business contract in its unaltered form accords with his recollection of the agreement entered into.
Of those statements and observations of the plaintiff it may be said that they overlook the fact that each of the plaintiff and Mr Brown were identified in the business contract as directors of the buyer, and that they were also identified as guarantors. Each of those matters is inconsistent with them being the buyers of the business personally, and consistent with the purchaser being a corporate entity.
The plaintiff’s observation as to the requirement for a new lease overlooks the fact that it was Snowhite which entered into the lease. In his July affidavit he deposes to his having “entered into a lease in my capacity as one of the directors of Snowhite Pastry Pty Ltd”.[8] This is a statement which faces some obvious legal difficulty. The defendants having denied the lease with the plaintiff and having pleaded a lease with Snowhite, in his reply, the plaintiff adopted their “admission” of a lease with Snowhite.
[8]Affidavit of Shannon Jon Glenister filed 16 July 2015, paragraph 3.
In his more recent affidavit the plaintiff deposes to it always having been the intention of he and Mr Brown that the chattels purchased under the business contract would belong to the plaintiff. Incidental
For the defendants, Mr Given of counsel submits that the plaintiff had neither actual possession, nor an entitlement to immediate possession, of the chattels and that the claims in conversion and detinue must fail. He submits that Snowhite purchased “the chattels the subject of these proceedings”[9] under the business contract, and that property in the chattels passed to Snowhite when the contract was entered into. He submits that even if the plaintiff’s more recent evidence about the ownership of the chattels were accepted, possession of the chattels was still with Snowhite at the relevant time and that the plaintiff could not maintain a claim conversion or detinue.
[9]Submissions on behalf of the Applicants/Defendants, paragraph 11.
As to the last point, I am not sure that if Snowhite was the lessee of the premises, but the plaintiff the owner of the chattels, it necessarily follows that the presence of those chattels at the premises meant that Snowhite had the immediate right to possession of them, rather than, or to the exclusion of, the plaintiff. That seems to me to be a triable issue.
I do not need to resolve who was the true buyer of the business (and the chattels) under the business contract, because at least some of the chattels were not acquired under that contract. There is no evidence that any person, real or corporate, other than the plaintiff is the owner of some of the chattels the subject of the action.
I would not find, on a summary judgment application, that the plaintiff did not have possession, or an entitlement to immediate possession, of at least those chattels.
I cannot in those circumstances be satisfied that the plaintiff has no real prospect of succeeding on at least a part of his claim.[10]
[10]Rule 293(2)(a) UCPR.
On that basis, the application must be dismissed.
I will hear the parties as to costs.
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