Guilfoyle v Newman

[2004] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

Guilfoyle v Newman [2004] QDC 213

PARTIES:

STACEY LEANNE GUILFOYLE
Applicant/Plaintiff
v
FRANK NEWMAN
First Respondent/Defendant
And
LESLEY NEWMAN
Second Respondent/Defendant

FILE NO:

27/2003

DIVISION:

Civil

PROCEEDING:

Application for summary judgment

ORIGINATING COURT:

District Court

DELIVERED ON:

17/7/04

DELIVERED AT:

Ipswich

HEARING DATE:

27/11/2003

JUDGE:

Richards

ORDER:

Application dismissed-

CATCHWORDS:

Summary judgement – principles applying to r292 Uniform Civil Procedure Rules

COUNSEL:

R V Hanson QC for the applicant

A J Morris QC for the first and second defendant

SOLICITORS:

Patrick Murphy for the applicant

Primrose Couper Cronin Rudkin for the respondent

1. This is an application for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules for part of the applicant/plaintiff’s claim namely the delivery of the dog, the subject of part of the claim.

1. The plaintiff is a dog breeder who breeds St Bernards.  The defendants are involved in the showing of St Bernards. By agreement, dated the 23/7/99, the defendants took possession from the plaintiff of a female St Bernard dog which was ear tattooed DRT 71 and named Ruby.

1. The agreement [ exhibit A to the affidavit of the plaintiff] is described as a partnership agreement whereby the defendants would take possession of the dog and instead of paying for the dog, they agreed to care for the dog and pay all ongoing expenses for the animal including caring for and showing the dog. Ruby was registered in the names of both the plaintiff and the defendant in compliance with the rules of the Canine Control Council which requires under Rule 41[d]

“ Where the Breeder wishes to register a puppy with the Breeders name as part owner, an Agreement signed by the purchaser of the puppy is to be attached to the application to register the litter.”

1. The agreement made provision for the dog to be mated:

“2. The breeder will determine if the above bitch is to be bred with and she is to be hipscored/elbowgraded prior to mating. Further, the breeder is to approve any stud dog to be used over her and any litters from this bitch will be bred under the Draycan prefix. All costs associated with the breeding of this bitch and the subsequent outcome will be split equally between the breeder and caretaker.”

1. In relation to the breeding of the dog, the parties vary in their interpretation of the agreement and it seems that this was the origin of the present dispute between the parties.

1. Matters came to a head when the defendants sent an e-mail message on 22 March 2002 implying that they had a right to approve any dog to be used in the breeding of the dog, Ruby.  By letter dated 1 August 2002 the defendants, having engaged solicitors, indicated that they wished to terminate the agreement and assume full ownership of Ruby.  They demanded as follows:

“Please confirm:
. that you will immediately hand over Ruby to the care of our clients and they will assume full ownership…