Kislyakova v Pointon - [2015] QSC 158

SUPREME COURT OF QUEENSLAND

CITATION:

Kislyakova & another v Pointon [2015] QSC 158

PARTIES:

Irina KISLYAKOVA

(first applicant)

and

AUSTRALIA GOLD REALTY PTY LTD (ACN 118 467 664)

(second applicant)

v

Gregory POINTON t/a Q PROPERTY LAWYERS

(respondent)

FILE NO/S:

SC No 2963 of 2012

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

15 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2015

JUDGE:

Atkinson J

ORDERS:

1.    The fourth parties have leave:

(a)      to withdraw the admissions made in subparagraphs 10(b), 10(c), 11(b), 11(c), 12(b)(iii), 12(b)(iv) and 16(c) and 16(d) of the defence of the fourth parties filed 17 June 2014;

(b)     to withdraw the admission made in paragraphs 1(a)(v) and 1(e) of the amended further and better particulars of the fourth party defence, filed 16 July 2014 and amend; and

(c)      consequential to leave to withdraw the admissions referred to in subparagraphs 1(a) and (b) above, to plead the matters set out in the amendments in paragraphs 18(c), 19(c) and 19(e) of the amended defence of the fourth parties filed 15 April 2015.

2.    The fourth parties pay the first third party’s costs of and incidental to the application filed 7 May 2014.

3.    The fourth parties pay the first third party’s costs thrown away by reason of the withdrawal of the admissions referred to in paragraph 1 above.

CATCHWORDS:

CIVIL PROCEDURE – PLEADINGS AND AMENDMENT – AMENDMENT – ORIGINATING PROCESS AND PLEADINGS – DISCRETIONARY AMENDMENTS – GENERAL – where the first and second applicants were the second and first fourth parties respectively to civil litigation – where the second and first fourth parties had jointly filed a defence to the claim in that litigation – where the fourth parties had made certain admissions in that defence – where the applicants sought leave under Uniform Civil Procedure Rules 1999 (Qld) r 188 to withdraw those admissions – where the first language of the first applicant was not English – where the applicants alleged that the admissions were incorrectly made due to the first applicant’s misunderstanding of conversations with her former lawyers – where the prejudice to the respondent could be remedied by an order for costs – whether leave to withdraw the admissions should been granted

CIVIL PROCEDURE – PLEADINGS AND AMENDMENT – AMENDMENT – ORIGINATING PROCESS AND PLEADINGS – QUEENSLAND – where the first and second applicants were the second and first fourth parties respectively to civil litigation – where the second and first fourth parties had jointly filed a defence to the claim in that litigation – where the fourth parties had made certain admissions in that defence – where the applicants sought leave under Uniform Civil Procedure Rules 1999 (Qld) r 188 to withdraw those admissions – where the first language of the first applicant was not English – where the applicants alleged that the admissions were incorrectly made due to the first applicant’s misunderstanding of conversations with her former lawyers – where the prejudice to the respondent…

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.

Continue reading Kislyakova v Pointon

Details

AGLC: Kislyakova v Pointon [2015] QSC 158
Case: [2015] QSC 158
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the matter of Kislyakova v Pointon, the applicants, Kislyakova and another, sought leave to withdraw certain admissions they had made in a defence they had jointly filed in ongoing litigation. They alleged that the admissions were made incorrectly due to a misunderstanding by Kislyakova, whose first language was not English. The court was tasked with deciding whether to grant the applicants leave to withdraw the admissions under rule 188 of the Uniform Civil Procedure Rules 1999 (Qld), and if so, under what conditions.

The court considered whether the prejudice to the respondent could be remedied by an order for costs, and whether the applicants had a valid basis for their request. It assessed the applicants’ claim that the admissions were made due to a misunderstanding and the potential impact of their withdrawal on the proceedings. The court balanced the applicants' right to amend their pleadings against the potential prejudice to the respondent.

The court concluded that the applicants had demonstrated sufficient grounds for their request to withdraw the admissions. It found that the prejudice to the respondent could be remedied by an order for costs and granted the applicants leave to withdraw the specified admissions. The court also ordered the applicants to pay the respondent’s costs associated with the application and the costs incurred due to the withdrawal of the admissions.

The final orders included granting the applicants leave to withdraw certain admissions from their defence, directing them to pay the respondent's costs of and incidental to the application, and requiring them to cover the costs thrown away by the withdrawal of the admissions.

Orders

Orders of the court

1. The fourth parties have leave:

(a) to withdraw the admissions made in subparagraphs 10(b), 10(c), 11(b), 11(c), 12(b)(iii), 12(b)(iv) and 16(c) and 16(d) of the defence of the fourth parties filed 17 June 2014;

(b) to withdraw the admission made in paragraphs 1(a)(v) and 1(e) of the amended further and better particulars of the fourth party defence, filed 16 July 2014 and amend; and

(c) consequential to leave to withdraw the admissions referred to in subparagraphs 1(a) and (b) above, to plead the matters set out in the amendments in paragraphs 18(c), 19(c) and 19(e) of the amended defence of the fourth parties filed 15 April 2015.

2. The fourth parties pay the first third party’s costs of and incidental to the application filed 7 May 2014.

3. The fourth parties pay the first third party’s costs thrown away by reason of the withdrawal of the admissions referred to in paragraph 1 above.

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:	Kislyakova & another v Pointon [2015] QSC 158
PARTIES:	Irina KISLYAKOVA (first applicant) and AUSTRALIA GOLD REALTY PTY LTD (ACN 118 467 664) (second applicant) v Gregory POINTON t/a Q PROPERTY LAWYERS (respondent)
FILE NO/S:	SC No 2963 of 2012
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	15 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2015
JUDGE:	Atkinson J
ORDERS:	1. The fourth parties have leave: (a) to withdraw the admissions made in subparagraphs 10(b), 10(c), 11(b), 11(c), 12(b)(iii), 12(b)(iv) and 16(c) and 16(d) of the defence of the fourth parties filed 17 June 2014; (b) to withdraw the admission made in paragraphs 1(a)(v) and 1(e) of the amended further and better particulars of the fourth party defence, filed 16 July 2014 and amend; and (c) consequential to leave to withdraw the admissions referred to in subparagraphs 1(a) and (b) above, to plead the matters set out in the amendments in paragraphs 18(c), 19(c) and 19(e) of the amended defence of the fourth parties filed 15 April 2015. 2. The fourth parties pay the first third party’s costs of and incidental to the application filed 7 May 2014. 3. The fourth parties pay the first third party’s costs thrown away by reason of the withdrawal of the admissions referred to in paragraph 1 above.
CATCHWORDS:	CIVIL PROCEDURE – PLEADINGS AND AMENDMENT – AMENDMENT – ORIGINATING PROCESS AND PLEADINGS – DISCRETIONARY AMENDMENTS – GENERAL – where the first and second applicants were the second and first fourth parties respectively to civil litigation – where the second and first fourth parties had jointly filed a defence to the claim in that litigation – where the fourth parties had made certain admissions in that defence – where the applicants sought leave under Uniform Civil Procedure Rules 1999 (Qld) r 188 to withdraw those admissions – where the first language of the first applicant was not English – where the applicants alleged that the admissions were incorrectly made due to the first applicant’s misunderstanding of conversations with her former lawyers – where the prejudice to the respondent could be remedied by an order for costs – whether leave to withdraw the admissions should been granted CIVIL PROCEDURE – PLEADINGS AND AMENDMENT – AMENDMENT – ORIGINATING PROCESS AND PLEADINGS – QUEENSLAND – where the first and second applicants were the second and first fourth parties respectively to civil litigation – where the second and first fourth parties had jointly filed a defence to the claim in that litigation – where the fourth parties had made certain admissions in that defence – where the applicants sought leave under Uniform Civil Procedure Rules 1999 (Qld) r 188 to withdraw those admissions – where the first language of the first applicant was not English – where the applicants alleged that the admissions were incorrectly made due to the first applicant’s misunderstanding of conversations with her former lawyers – where the prejudice to the respondent…