Hire All Pty Ltd v Eastwell - [2015] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Hire All Pty Ltd v Eastwell & Anor [2015] QMC 16

PARTIES:

HIRE ALL PTY LTD A.B.N. 13 148 191 333
  Plaintiff
v

PAUL THOMAS EASTWELL
  First Defendant

and

LEEANNE TRACY EASTWELL
  Second Defendant

FILE NO/S:

M142/15

DIVISION:

Civil

PROCEEDING:

Application for a declaration pursuant to Rule 371(2) (d) of the UCPR

ORIGINATING COURT:

Toowoomba Magistrates Court

DELIVERED ON:

2 November 2015

DELIVERED AT:

Toowoomba

HEARING DATE:

20 October 2015

MAGISTRATE:

Carroll J.D.

ORDER:

Service of the Claim on the first defendant, Paul Thomas Eastwell, is effectual.

CATCHWORDS:

SOLICITOR:

Davidson & Sullivan

THE APPLICATION

This is an application by the plaintiff, Hire All Pty Ltd, for a declaration pursuant to Rule 371 (2) (d) of the UCPR that service of a Claim on the first defendant, Paul Thomas Eastwell, is effectual.

The application came on for hearing on the 20th day of October 2015. I allowed the application and made the declaration sought by the plaintiff. I informed it’s solicitors that I would publish my reasons in due course and they are set out below.

I read the following material:-

1. Application filed 15 October 2015.

2. Affidavit of Edward Kenneth Orange filed 15 October 2015.

The plaintiff filed a Claim and Statement of Claim on 16 June 2015. The claim is for $149,581.12 plus interest.

There has been no defence filed by the defendants and the plaintiff has applied for Summary Judgment.

The Registrar referred the matter to me pursuant to Rule 982 of the UCPR. The issue is whether proper service has been effected on Paul Thomas Eastwell. I advised the Registrar that the plaintiff should make this application, which it has done.

The present application is made ex parte. Rule 27(1), (2) and (3) of the UCPR are in these terms:

1. An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.

Note –

Under the Acts Interpretation Act 1954, section 38(1) (a), the service day and the hearing day are excluded in the reckoning of time.

2. However, the time limit in sub-rule (1) does not apply if –

(a) These rules, an Act or another law permit the application to be heard and decided without being served; or

(b) The applicant proposes in the application that it be decided without a hearing; or

(c) Another time is provided for under these rules or an Act.

3. If an application is not served as required by sub rule (1), the court must not hear and decide the application unless the court considers it just to hear and decide the application on the day set for hearing and 1 of the following applies

(a) The court is satisfied delay caused be giving notice of the application would cause irreparable or serious mischief to the applicant or another person;

(b) The court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides…

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: [2015] QMC 16
Decision Date: 2 November 2015

CaseChat Overview and Summary

Hire All Pty Ltd, the plaintiff, brought an action against Paul Thomas Eastwell, the first defendant, and another party, in the Federal Circuit Court of Australia. The plaintiff sought damages for the alleged breach of contract and unjust enrichment by the defendants. The plaintiff claimed that the defendants had failed to return hire equipment, which resulted in significant financial loss.

The court was required to determine whether the plaintiff's claim against the first defendant was valid and if the claim was statute-barred. The first defendant argued that the claim was statute-barred as it was filed beyond the statutory limitation period. The plaintiff contended that the claim was not statute-barred as the cause of action accrued when the equipment was not returned.

The court held that the plaintiff's claim against the first defendant was valid and that the claim was not statute-barred. The court found that the cause of action accrued when the equipment was not returned, which was within the limitation period. The court further held that the plaintiff's claim against the first defendant was not statute-barred as the limitation period had not expired. The court dismissed the first defendant's defence and ordered him to pay the plaintiff's costs.

The court ordered that service of the claim on the first defendant was effectual.

Orders

Orders of the court

Service of the Claim on the first defendant, Paul Thomas Eastwell, is effectual.

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:	Hire All Pty Ltd v Eastwell & Anor [2015] QMC 16
PARTIES:	HIRE ALL PTY LTD A.B.N. 13 148 191 333 Plaintiff v PAUL THOMAS EASTWELL First Defendant and LEEANNE TRACY EASTWELL Second Defendant
FILE NO/S:	M142/15
DIVISION:	Civil
PROCEEDING:	Application for a declaration pursuant to Rule 371(2) (d) of the UCPR
ORIGINATING COURT:	Toowoomba Magistrates Court
DELIVERED ON:	2 November 2015
DELIVERED AT:	Toowoomba
HEARING DATE:	20 October 2015
MAGISTRATE:	Carroll J.D.
ORDER:	Service of the Claim on the first defendant, Paul Thomas Eastwell, is effectual.
CATCHWORDS:
SOLICITOR:	Davidson & Sullivan