Kathryn Stanford Consulting Pte Ltd v Davis

[2025] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:	Kathryn Stanford Consulting Pte Ltd v Davis [2025] QDC 137
PARTIES:	KATHRYN STANFORD CONSULTING PTE LTD (plaintiff)
v
ANDREW LEWIS DAVIS (defendant)
FILE NO/S:	1426 of 2023
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING  COURT:	District Court, Brisbane
DELIVERED ON:	23 September 2025 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2025
JUDGE:	Williamson KC DCJ
ORDER:	The matter is adjourned for the plaintiff to prepare an order giving effect to these reasons.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where the defendant’s further amended counterclaim had pleading defects – where the defendant did not appear – whether the further amended counterclaim should be struck out – whether leave to re-plead should be granted.
LEGISLATION:	Uniform Civil Procedure Rules 1999 r 171
CASES:	Comprite Pty Ltd v Returned and Services League of Australia (Queensland Branch) [2009] QSC 163
COUNSEL:	Mr A Mahoney (town agent) for the plaintiff
SOLICITORS:	BlackBay Lawyers for the plaintiff

1. This is an application by the plaintiff for summary judgment in relation to the defendant’s further amended counterclaim, or, in the alternative, an order under rule 171 of the Uniform Civil Procedure Rules 1999 (UCPR) that the defendant’s counterclaim be struck out. After an exchange with Mr Mahoney, who appeared for the plaintiff, the application for summary judgment was abandoned and it was conceded an order should be made dismissing this aspect of the application. I have so ordered.

2. The remaining issue to be determined is whether the defendant’s further amended claim should be struck out in whole or in part. The written submissions in support of this part of the application are helpfully set out in a detailed annexure. The annexure identifies, in each paragraph of the further amended counterclaim, pleading defects. Each paragraph of the further amended counterclaim is the subject of criticism and, in my view, not unfairly so. The annexure is attached to these reasons.

3. Reference to annexure A reveals the defendant’s further amended counterclaim makes allegations that are not supported by facts, and fails to disclose, in part, a purported action, or purported actions, that the plaintiff can plead to. It fails to provide particulars. It alleges malice against the plaintiff, which are matters that must be specifically pleaded, but are not properly particularised. It is also unclear, in respect of a number of allegations, the material facts the defendant relies on to substantiate allegations.

4. For completeness, I adopt the criticisms in annexure A of the written submissions as establishing noncompliance with the rules of pleading insofar as the further amended counterclaim is concerned. I am comfortably satisfied the further amended counterclaim should be struck out on this basis.

5. There were two particular difficulties that arose today that complicated the application. The first involved non-appearance by Mr Davis. The second involved what, if any, further orders should be made, given the strike-out of the further amended counterclaim.

6. With respect to the first issue, I was satisfied, particularly by reference to a chain of emails that I marked exhibit 1 for the purpose of today, that Mr Davis had notice of the application and the relief sought against him. Indeed, the email chain indicated he sought an adjournment of today on the papers. That application was not consented to, and no adjournment was granted. He was required to appear today. He did not appear. This is so after the bailiff was asked to call Mr Davis three times and there was no appearance.

7. The second issue involves what, if any, further orders should be made in relation to the counterclaim, given it has been struck out. This is the third such time the counterclaim has been the subject of orders requiring drastic pleading amendments. The application before me did not include, as the relief sought, an opportunity for the defendant to re-plead. Nor did it identify conditions the plaintiff would seek to be attached to leave if granted.

8. With respect to the conditions that might attach to leave to re-plead, Mr Mahoney directed my attention to the decision of Comprite Pty Ltd v Returned and Services League of Australia (Queensland Branch) [2009] QSC 163, particularly at paragraph 17. Justice Byrne therein was faced with a circumstance where a counterclaim was struck out, and his Honour was considering the further steps that might be the subject of orders by the court. His Honour said:

   “The non-compliance with Mackenzie J’s order and the unsatisfactory state of the pleading and particulars require the material paragraphs of the counter-claim to be struck out. But the defendant should be afforded a (probably final) opportunity to attempt to plead appropriately, but on terms, as to which I shall hear the parties. These might include that there be delivered with the proposed counter-claim: (i) proper particulars; (ii) a letter from the defendant’s solicitor certifying that those who settle the new pleading, after proper enquiry into the facts and the law, have formed the opinion (if they do) that the newly pleaded case has reasonable prospects of success; and (iii) reference to the cases, commentaries and any statutory provisions to show that the new pleading advances a case that has reasonable prospects of success.”

9. While there is considerable merit in this matter proceeding in a similar way, Mr Davis was not given notice of relief of this kind. He has not had an opportunity to be heard in relation to it. As a consequence, I decline to make orders in those terms, which were sought by the plaintiff. The matter shall be left with the defendant to consider what steps, if any, from here, should take place in relation to the further amended counterclaim.

10. While I would not make orders today in accordance with the reasoning in Comprite, it strikes me there is much to commend in such a course, which would see the defendant afforded probably a final opportunity to plead appropriately but on specific terms.

11. I will hear from Mr Mahoney as to the terms of orders that should be made in those circumstances.