Ladini v Hayward - [2011] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION:

Ladini v Hayward and Anor [2011] QDC 293

PARTIES:

Natalia Gonul Natasha Ladini
(Plaintiff/Respondent)

v

John Hayward
(1^st Defendant/Applicant)

And

Noelene Hayward

(2^nd Defendant/Applicant)

FILE NO/S:

D101/11

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

1 December 2011

DELIVERED AT:

Southport

HEARING DATE:

21 November 2011

JUDGE:

Newton DCJ

ORDER:

Application to file and serve Third Party Notice refused with costs.

Application for order to dispense with signature on Request for Trial Date granted with costs.

CATCHWORDS:

PRACTICE – joinder of parties – application by defendants to file and serve third party notice outside prescribed period – whether leave should be granted – relevant considerations.

Property Law Act 1974 (Qld).

Uniform Civil Procedure Rules 1999.

MGM Containers Pty Limited v Wockner [2006] QCA 502.

Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.

COUNSEL:

Mr G Radcliff for the plaintiff (respondent).

Mr C Harding for the defendants (applicants).

SOLICITORS:

Robinson and Robinson for the plaintiff (respondent).

Mitchells Solicitors for the defendants (applicants).

The applicants (the first and second defendants) seek an order pursuant to Rule 194 of the Uniform Civil Procedure Rules 1999 (“the UCPR”) joining John Woulfe as a third party to the proceedings. There is also a cross-application by the plaintiff for an order that the signature of the first and second defendants on a Request for Trial Date be dispensed with.

The plaintiff claims the sum of $519,000.00 against the first and second defendants pursuant to a contract for the sale of land from the defendants to the plaintiff dated 4 January 2008.[1] In her statement of claim, the plaintiff alleges that by virtue of section 73 of the Property Law Act 1974 she was entitled to treat the contract dated 4 January 2008 (“the Contract”) as void as a result of the first and second defendants executing a mortgage over the property on 22 June 2009 in favour of Bank of Queensland Limited (“the Mortgage”).
[1] Claim #101 of 2011.

Section 73 of the Property Law Act 1974 provides as follows:

“73 Land not to be mortgaged by vendor

(1) A vendor under an instalment contract shall not without the consent of the purchaser sell or mortgage the land the subject of the contract.

(2) Where land is mortgaged in contravention of this section –

(a) the instalment contract shall be voidable by the purchaser at any time before completion of the contract; and

(b) the vendor shall be guilty of an offence against this Act.

Maximum penalty – 9 penalty units.

(3) Nothing in this section affects –

(a) the rights of any bona fide purchaser from the vendor for value and without notice of the instalment contract; or

(b) the Land Title Act 1994.”

It is not in dispute that the defendants executed the mortgage over the property in favour of Bank of Queensland Limited. The plaintiff’s claim is defended by the first and second defendants on the basis that:

(a)…

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 Ladini v Hayward

Details

AGLC: Ladini v Hayward [2011] QDC 293
Case: [2011] QDC 293
Decision Date: 1 December 2011

CaseChat Overview and Summary

Ladini commenced proceedings against Hayward for damages in the Federal Circuit Court. Hayward subsequently sought to file and serve a third party notice outside of the prescribed period. Ladini opposed the application, arguing that the delay was unjustifiable and prejudicial. The court had to determine whether leave should be granted for Hayward to file and serve the third party notice outside the prescribed period. The court considered the relevant factors, including whether Hayward had a bona fide defence, whether there was a reasonable explanation for the delay, and whether there would be any prejudice to Ladini if leave was granted.

The court found that Hayward's explanation for the delay was not reasonable, and that there was a significant risk of prejudice to Ladini if the third party was joined. The court noted that the delay was due to Hayward's own inaction, and that there was no evidence that the delay would result in any significant benefit to Hayward or the third party. The court also found that the third party had not shown any interest in being joined to the proceedings, and that there was no evidence that the third party had any liability to Ladini.

Accordingly, the court refused Hayward's application to file and serve the third party notice outside the prescribed period. The court also granted Hayward's application for an order to dispense with the signature on the Request for Trial Date, finding that there was no prejudice to Ladini in doing so. Both applications were made with costs.

Orders

Orders of the court

Application to file and serve Third Party Notice refused with costs.

Application for order to dispense with signature on Request for Trial Date granted with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Ladini v Hayward and Anor [2011] QDC 293
PARTIES:	Natalia Gonul Natasha Ladini (Plaintiff/Respondent) v John Hayward (1^st Defendant/Applicant) And Noelene Hayward (2^nd Defendant/Applicant)
FILE NO/S:	D101/11
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	1 December 2011
DELIVERED AT:	Southport
HEARING DATE:	21 November 2011
JUDGE:	Newton DCJ
ORDER:	Application to file and serve Third Party Notice refused with costs. Application for order to dispense with signature on Request for Trial Date granted with costs.
CATCHWORDS:	PRACTICE – joinder of parties – application by defendants to file and serve third party notice outside prescribed period – whether leave should be granted – relevant considerations. Property Law Act 1974 (Qld). Uniform Civil Procedure Rules 1999. MGM Containers Pty Limited v Wockner [2006] QCA 502. Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.
COUNSEL:	Mr G Radcliff for the plaintiff (respondent). Mr C Harding for the defendants (applicants).
SOLICITORS:	Robinson and Robinson for the plaintiff (respondent). Mitchells Solicitors for the defendants (applicants).