Harris v Australand - [2010] QSC 385

SUPREME COURT OF QUEENSLAND

CITATION:

Harris & Anor v Australand & Anor [2010] QSC 385

PARTIES:

SHANE EDWARD HARRIS AND KIM MAREE HARRIS AS TRUSTEES FOR THE HARRIS FAMILY TRUST
(first plaintiffs)
v
CARINYA (QLD) PTY LTD ACN 135 687 339 AS TRUSTEES FOR THE HARRIS FAMILY TRUST
(second plaintiff)
and
AUSTRALAND APARTMENTS NO. 6 PTY LTD ACN 100 251 287
(defendant)
ALLENS ARTHUR ROBINSON (A FIRM)

(defendant added by counterclaim)

FILE NO/S:

BS13391/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

12 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2010

JUDGE:

Margaret Wilson J

ORDER:

That the application be dismissed with costs.

CATCHWORDS:

CONTRACTS – particular parties – vendor and purchaser – where first plaintiffs entered into a contract with defendant to purchase retail lot – where first plaintiffs provided a bank guarantee – where first plaintiffs purported to terminate the contract – where defendant purported to accept the first plaintiffs’ conduct as repudiation and itself purported to terminate the contract – where defendant claimed damages against the first and second plaintiffs – where defendant argued its solicitors had been negligent – where the defendant brought counterclaim against solicitors that had advised it – where firm joined to proceedings as defendant by counterclaim – whether nature of the defendant’s loss must be characterised – whether it was likely that the first plaintiffs would have experienced financial difficulties in completing the purchase

PROCEDURE – Supreme Court procedure – Queensland – procedure under Uniform Civil Procedure Rules 1999 (Qld) and predecessors – whether court has power to order plaintiff to make disclosure to defendant by counterclaim – whether court can order such disclosure pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 367 or r 658, or chapter 7 part 1 – whether court can order such disclosure pursuant to Supreme Court Act 1995 (Qld) s 283

Property Agents and Motor Dealers Act 2000 (Qld) s 365
Supreme Court Act 1995 (Qld) s 283
Supreme Court of Queensland Act 1991 (Qld) s 118D

Uniform Civil Procedure Rules 1999 (Qld) r 367, r 658, chapter 7 part 1

COUNSEL:

AM Pomerenke for the applicant / defendant added by counterclaim

MR Hodge for the respondent / plaintiffs

SOLICITORS:

Brian Bartley & Associates for the applicant /defendant by counterclaim

Robbins Watson for the respondent/plaintiffs

MARGARET WILSON J: This is an application by the defendant by counterclaim ("Allens") for disclosure by the plaintiffs (Shane Edward Harris and Kim Maree Harris, first plaintiffs, and Carinya (Qld) Pty Ltd as trustee of the Harris Family Trust, as second plaintiff) of all documents relevant to their capacity to complete a contract for the purchase of certain property.

Procedural question

Counsel for the respondent plaintiffs accepted that the Court has power to order a plaintiff to make disclosure to a defendant by counterclaim, while noting some uncertainty about the source of that power. Possible sources of power identified in submissions are –

(i) Uniform Civil Procedural Rules 1999 (Qld) ("UCPR") r…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QSC 385
Decision Date: 12 October 2010

CaseChat Overview and Summary

In the matter of Harris v Australand, the Supreme Court of Queensland dealt with a dispute between the plaintiffs, Harris, and the defendant, Australand. The plaintiffs entered into a contract with Australand to purchase a retail lot, providing a bank guarantee as part of the agreement. The plaintiffs later purported to terminate the contract, which Australand interpreted as a repudiation. In response, Australand also purported to terminate the contract and sought damages against the plaintiffs. Australand further claimed that its solicitors were negligent and brought a counterclaim against the firm that had advised it. The solicitors were subsequently joined to the proceedings as a defendant by the counterclaim.

The primary legal issues before the court were whether the nature of Australand's loss must be characterised and whether it was likely that the plaintiffs would have experienced financial difficulties in completing the purchase. Additionally, the court considered procedural matters concerning the power to order the plaintiff to make disclosure to the defendant by counterclaim, and whether such an order could be made under the Uniform Civil Procedure Rules 1999 (Qld), r 367 or r 658, or chapter 7 part 1, and whether it could be ordered under the Supreme Court Act 1995 (Qld) s 283.

The court found that the nature of Australand's loss did not require characterisation in the specific terms requested. Regarding the likelihood of financial difficulties for the plaintiffs, the court determined that such an assessment was not necessary for the resolution of the case. In relation to the procedural issues, the court concluded that it did not have the power to order the plaintiff to make disclosure to the defendant by counterclaim, neither under the Uniform Civil Procedure Rules nor under the Supreme Court Act. The court dismissed the application and ordered that costs be paid.

Orders

Orders of the court

That the application be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Harris & Anor v Australand & Anor [2010] QSC 385
PARTIES:	SHANE EDWARD HARRIS AND KIM MAREE HARRIS AS TRUSTEES FOR THE HARRIS FAMILY TRUST (first plaintiffs) v CARINYA (QLD) PTY LTD ACN 135 687 339 AS TRUSTEES FOR THE HARRIS FAMILY TRUST (second plaintiff) and AUSTRALAND APARTMENTS NO. 6 PTY LTD ACN 100 251 287 (defendant) ALLENS ARTHUR ROBINSON (A FIRM) (defendant added by counterclaim)
FILE NO/S:	BS13391/08
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	12 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2010
JUDGE:	Margaret Wilson J
ORDER:	That the application be dismissed with costs.
CATCHWORDS:	CONTRACTS – particular parties – vendor and purchaser – where first plaintiffs entered into a contract with defendant to purchase retail lot – where first plaintiffs provided a bank guarantee – where first plaintiffs purported to terminate the contract – where defendant purported to accept the first plaintiffs’ conduct as repudiation and itself purported to terminate the contract – where defendant claimed damages against the first and second plaintiffs – where defendant argued its solicitors had been negligent – where the defendant brought counterclaim against solicitors that had advised it – where firm joined to proceedings as defendant by counterclaim – whether nature of the defendant’s loss must be characterised – whether it was likely that the first plaintiffs would have experienced financial difficulties in completing the purchase PROCEDURE – Supreme Court procedure – Queensland – procedure under Uniform Civil Procedure Rules 1999 (Qld) and predecessors – whether court has power to order plaintiff to make disclosure to defendant by counterclaim – whether court can order such disclosure pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 367 or r 658, or chapter 7 part 1 – whether court can order such disclosure pursuant to Supreme Court Act 1995 (Qld) s 283 Property Agents and Motor Dealers Act 2000 (Qld) s 365 Supreme Court Act 1995 (Qld) s 283 Supreme Court of Queensland Act 1991 (Qld) s 118D Uniform Civil Procedure Rules 1999 (Qld) r 367, r 658, chapter 7 part 1
COUNSEL:	AM Pomerenke for the applicant / defendant added by counterclaim MR Hodge for the respondent / plaintiffs
SOLICITORS:	Brian Bartley & Associates for the applicant /defendant by counterclaim Robbins Watson for the respondent/plaintiffs