Hill v Gleeson

Case [2023] QDC 227

DISTRICT COURT OF QUEENSLAND

CITATION:

Hill v Gleeson & Anor [2023] QDC 227

PARTIES:

SIMON JAMES HILL

(plaintiff)
v
ADAM BERNARD GLEESON
(first defendant)
and
KATHRYN MARIE O’GRADY

(second defendant)
FILE NO:

D28/2023

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

7 December 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

24 November 2023

JUDGE:

Long SC, DCJ

ORDER:

1.   Paragraphs 4, 6, 18, 19, 31, 32, 33 and 35 of the Amended Statement of Claim, filed 19 June 2023 are struck out.

2.   Paragraphs 4-8, 10-13 and 17-35 of the amended defence, filed 20 July 2023, are struck out.

CATCHWORDS:

APPLICATION – PRACTICE AND PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – PLEADINGS – where each party contends on cross applications that multiple paragraphs of the respective party’s pleading are deficient –  whether the respective pleadings of each  party should be struck out due to having a tendency to prejudice or delay the fair trial of this proceeding.

LEGISLATION:

Australian Consumer Law (Cth) ss 2, 4 and 18
Uniform Civil Procedure Rules 1999 (Qld) rr 5, 149, 150, 155, 166, 171, and 292

CASES:

ASIC v Active Super Pty Ltd(in liq) [2015] FCA 342
Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Butler v Simmonds Crowley & Galvin [2000] QSC 120
Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2014] QSC 205
Concrete Constructions(NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Equititrust Limited v Tucker(No 2) [2019] QSC 248
Fletcher (as liquidators of Octaviar Administration Pty Ltd (in liq) v Fortress Credit Corp (Aust) II Pty Ltd [2013] QSC 104
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271
Robert Bax and Associates v Cavenham Pty Ltd [2011] QCA 53
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investments Ltd [1998] FCA 525
Virgtel Limited v Zabusky [2008] QSC 213
COUNSEL:

D Worrell for the Plaintiff

T Andrews (sol) for the First and Second Defendants
SOLICITORS:

Miller Sockhill Lawyers for the Plaintiff

Lynch Andrews Lawyers for the First and Second Defendants

Introduction

  1. Cross applications, respectively relating to the pleadings in this matter, came before this Court on 24 November 2023. Those pleadings are discussed in necessary detail below and they relate to the following claims for relief, as set out in the Amended Claim filed on 14 July 2023:

    “1.     From the First Defendant and Second Defendant the sum of $115,000.00 for breach of contract; and

    2.     From the First Defendant and Second Defendant the sum of $38,000.00 for breach of contract to pay holding income of $500.00 per week from 30 August 2021

    3.     Further or in the alternative, a declaration that the balance of the Funds advanced by the Plaintiff to the Defendants is held on constructive trust for the Plaintiff;

    4.     Further or in the alternative, a declaration that the Defendants are liable to account to the Plaintiff as a constructive trustee.

    5. Further or in the alternative, damages under s 236…

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Details
AGLC
Hill v Gleeson [2023] QDC 227
Case
[2023] QDC 227
Decision Date

CaseChat Overview and Summary

In Hill v Gleeson, the parties were engaged in a dispute that required the court to address the adequacy of pleadings. The court was called upon to determine whether certain paragraphs in the pleadings of both the plaintiff and the defendant should be struck out due to their alleged tendency to prejudice or delay the fair trial of the proceeding. The matter was before the court on cross applications, each party arguing that multiple paragraphs in the other party’s pleadings were deficient.

The primary legal issue before the court was whether the pleadings contained sufficient material facts to avoid being struck out under the Uniform Civil Procedure Rules. Specifically, the court needed to assess if the pleadings were so deficient that they would prejudice or delay the fair trial of the proceeding. The court examined each of the contested paragraphs for their compliance with the requirements of the rules and their contribution to the clarity and fairness of the litigation process.

In its decision, the court found that several paragraphs in both the Amended Statement of Claim and the amended defence were deficient. Paragraphs 4, 6, 18, 19, 31, 32, 33, and 35 of the Amended Statement of Claim, as well as paragraphs 4-8, 10-13, and 17-35 of the amended defence, were struck out. The court reasoned that these paragraphs either lacked material facts or disclosed no reasonable cause of defence, thus having a tendency to prejudice or delay the fair trial of the proceeding. The court allowed the parties to make further submissions regarding the repleading of the deficient paragraphs and the allocation of costs.

The court's final orders included the striking out of the specified paragraphs from both the Amended Statement of Claim and the amended defence. The parties were directed to submit further on the repleading and costs.

Orders

Orders of the court

1. Paragraphs 4, 6, 18, 19, 31, 32, 33 and 35 of the Amended Statement of Claim, filed 19 June 2023 are struck out.

2. Paragraphs 4-8, 10-13 and 17-35 of the amended defence, filed 20 July 2023, are struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The contention and particularly as it proceeded to suggest a need to join “ADKA Investments” as a party, is entirely misconceived:(a)the express reference in paragraph 6(j) is to “a bank account” so titled,[15] and(b)the pleading at paragraph 20(a) is as to the parties’ intention being that “the funds would be received by the First and Second Defendants into their nominated bank account.[15]In the affidavit of S Hill, filed 26/10/23, at 3(f)(i), it is asserted that it was understood that the acronym ADKA, was an adoption of the first two letters from the first Christian name of each defendant. Conclusion For these reasons, it has been established that paragraphs 4, 6, 18, 19 and 35 of the ASOC, should be struck out, due to those present pleadings having a tendency to prejudice or delay the fair trial of this proceeding, in terms of the absence of pleading of material facts in support of the generally pleaded contentions. As earlier noted, the complete inappropriateness of the responses in the amended defence, including in respect of but not limited to, those parts of the ASOC which remain, is such as to also warrant that most of the paragraphs from 4-35 of the amended defence be struck out, as disclosing no reasonable cause of defence and/or tending to prejudice or delay the fair trial of this proceeding. Accordingly, there will be orders pursuant to UCPR 171, that:1.Paragraphs 4, 6, 18, 19, 31, 32, 33 and 35 of the Amended Statement of Claim, filed 19 June 2023 are struck out.2.Paragraphs 4-8, 10-13 and 17-35 of the amended defence, filed 20 July 2023,[16] are struck out.[16]Paragraphs 9 and 14-16 are presently struck through, in response to the striking through of similarly numbered paragraphs in the ASOC. However, it may be noted that there is currently no response in the amended defence to the addition, made by way of amendment, to paragraph 15 of the ASOC.Otherwise, the parties will have the opportunity to make further submissions as to the further orders for the purpose of repleading and as to costs.

Ratio Decidendi

Legal Principle Established

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