Green v Pearson

Case [2014] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

Green & Ors v Pearson [2014] QCA 110

PARTIES:

DOUGLAS JOHN GREEN
(first appellant)
LEONIE MARGARET GREEN
(second appellant)
NOVELLE PTY LTD
ACN 078 970 313
(third appellant)
ANCHORAGE TERRACE PTY LTD
ACN 090 825 844 as trustee for
THE ANCHORAGE TERRACE INVESTMENT TRUST
(fourth appellant)
VELDENE PTY LTD
ACN 078 522 308
(fifth appellant)
SANCTUARY COVE DEVELOPMENTS PTY LTD
ACN 095 300 217
(sixth appellant)
DOUGLAS BUSINESS SERVICES PTY LTD
ACN 082 845 770
(seventh appellant)
COOMERA WATERS TAVERN PTY LTD
ACN 108 364 987
(eighth appellant)
v
WAYNE PEARSON
(respondent)

FILE NO/S:

Appeal No 10710 of 2013
SC No 4042 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2014

JUDGES:

Fraser and Morrison JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM – ADMISSIONS – where the primary judge gave the respondent leave to withdraw admissions in his defence – where the proposed defence is potentially defective – whether the primary judge’s decision was erroneous

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM – ADMISSIONS – where the appellants submitted there was no evidence to support the respondent’s denial of the admissions made – where the primary judge relied on an affidavit of the respondent verifying the proposed defence – where the respondent was the principal witness who might be expected to know the relevant facts – whether the primary judge made an error of principle or failed to take a material consideration into account in relying on the respondent’s affidavit

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM –ADMISSIONS – where the primary judge gave the respondent leave to withdraw admissions in his defence – where the admissions were deemed pursuant to r 166(5) of the Uniform Civil Procedure Rules 1999 (Qld) – where the respondent had sought summary judgment of the claim in lieu of providing a detailed defence – where the appellant argued that the respondent’s admissions were made formally and deliberately – whether there was an error by the primary judge in giving less weight to the way in which the admissions were made

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – COSTS – where the primary judge held that costs should be “in the cause” – where the primary judge took into account the respondent’s conduct in bringing a summary judgment application without preparing a proper defence and that the appellants had failed to raise certain criticisms with the respondent prior…

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Details
AGLC
Green v Pearson [2014] QCA 110
Case
[2014] QCA 110
Decision Date

CaseChat Overview and Summary

Green and another sought to appeal a decision that allowed Pearson to withdraw admissions in his defence. The primary judge had granted Pearson leave to withdraw admissions that were deemed pursuant to r 166(5) of the Uniform Civil Procedure Rules 1999 (Qld). The appellants argued that Pearson had sought summary judgment without preparing a proper defence and that his proposed defence was potentially defective. They further contended that the primary judge made an error in principle by relying on Pearson's affidavit verifying the proposed defence, particularly as Pearson was the principal witness who might be expected to know the relevant facts. The appellants also argued that the primary judge erred in giving less weight to the manner in which the admissions were made, which they claimed were made formally and deliberately. Finally, the appellants challenged the primary judge's assessment of costs, arguing that certain considerations were irrelevant or extraneous.

The court examined whether the primary judge erred in permitting Pearson to withdraw the admissions and in the manner in which he assessed costs. The court found that the primary judge was entitled to rely on Pearson's affidavit as it was reasonable to accept the evidence of the principal witness. The court further found that the primary judge did not err in permitting Pearson to withdraw the admissions, as the potential defects in the proposed defence did not render it hopeless. The court also held that the primary judge did not make an error in principle in giving less weight to the manner in which the admissions were made, as the appellants failed to establish that the admissions were made formally and deliberately. Finally, the court found that the primary judge's assessment of costs was not erroneous, as the considerations taken into account were relevant to the exercise of the primary judge's discretion.

The appeal was dismissed with costs. The primary judge's decision to allow Pearson to withdraw the admissions and to assess costs was upheld. The court found no error in the primary judge's reasoning or in the exercise of his discretion.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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