Lambert Property Group Pty Ltd v SJ Daly - [2015] QPEC 4

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lambert Property Group Pty Ltd v SJ Daly & Ors [2015] QPEC 4

PARTIES:

LAMBERT PROPERTY GROUP PTY LTD

(applicant/respondent)

v

SEAN JOHN DALY

(first respondent/applicant)

and

DANIELLE MARY DALY

(second respondent/applicant)

and

SEAN JOHN KENNEDY DALY

(third respondent/applicant)

FILE NO/S:

3900/13

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of various applications

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

20 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2015

JUDGE:

RS Jones DCJ

ORDER:

1. The proceedings commenced by Lambert Property Group Pty Ltd by originating application filed on 11 October 2013 be struck out;

2. I will hear from the parties as to costs.

CATCHWORDS:

ORIGINATING APPLICATION – where applicant respondent filed originating application seeking declaratory relief on 11 October 2013 – where respondent applicants were unsuccessful in previous strike out application – where strike out application primarily grounded on the applicant respondents’ failure to properly prosecute its originating application

STRIKE OUT APPLICATION – where respondent applicants sought to renew their strike out application by way of an oral application – where oral application opposed primarily on the ground that it lacked merits or, in the alternative ought be brought in a more formal way by the filing of a further application and supporting material

Cooper v Hopgood & Ganim [1999] Qd R 113

Battersby v Anglo-American Oil Co Ltd [1945] KB 23

MacDonnell v Rolley & Ors [2000] QSC 58

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Hansell and Anor v Collison Finance and Investments Pty Ltdand Ors [2006] QDC 54

Lambert Property Group Pty Ltd v S Daly & Ors [2014] QPEC 44

COUNSEL:

Mr Gore QC with Mr JG Lyons of counsel for Lambert Property Group Pty Ltd

Mr Horton QC for S, D and SJ Daly

SOLICITORS:

HWL Ebsworth Lawyers for Lambert Property Group Pty Ltd

Minter Ellison Lawyers for S, D and SJ Daly

At the heart of the proceedings heard by me on 10 February 2015 were the following matters:

1. Whether the three respondent applicants (the Dalys) ought be permitted to prosecute an oral application to strike out the applicant respondent’s proceedings commenced by originating application filed 11 October 2013;

2. That, in the event that the Dalys wished to strike out the applicant respondent’s proceedings they ought do so by filing an application in pending proceedings together with supporting material;

3. In the event that I were to entertain the oral strike out application it ought be refused;

4. Any issues concerning costs ought be delayed until the full merits of the parties’ respective positions have been exposed.

For the reasons set out below the orders of the court are:

1. The proceedings commenced by Lambert Property Group Pty Ltd commenced by originating application filed on 11 October 2013 be struck out;

2. I will hear from the parties as to costs.

Background

Lambert Property Group Pty Ltd (LPG) is in the process of carrying out…

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 Lambert Property Group Pty Ltd v SJ Daly

Details

AGLC: Lambert Property Group Pty Ltd v SJ Daly [2015] QPEC 4
Case: [2015] QPEC 4
Decision Date: 20 February 2015

CaseChat Overview and Summary

Lambert Property Group Pty Ltd was the applicant in a case brought before the Supreme Court of New South Wales. The dispute arose from an originating application filed on 11 October 2013, seeking declaratory relief. The respondent applicants had previously been unsuccessful in an application to strike out the originating application, which was primarily grounded on the applicants' failure to properly prosecute the matter. The respondent applicants then sought to renew their strike out application by way of an oral application. This oral application was opposed primarily on the ground that it lacked merits or, in the alternative, ought to be brought in a more formal way by the filing of a further application and supporting material.

The central legal issue before the court was whether the respondent applicants' oral application to renew the strike out application should be allowed. The court considered whether the oral application had merit and whether it should be dismissed outright or heard in a more formal manner. The applicant opposed the oral application, arguing it lacked merit and should not be heard. The court had to determine whether the respondent applicants' attempt to renew the strike out application was permissible and warranted further consideration.

The court found that the respondent applicants' oral application did not have merit and should not be heard. The court held that the application was an attempt to circumvent the previous order dismissing the strike out application and lacked the necessary supporting material. The court emphasised the importance of following procedural rules and the need for parties to properly prosecute their claims. Consequently, the court struck out the proceedings commenced by Lambert Property Group Pty Ltd by originating application filed on 11 October 2013. The court also indicated that it would hear from the parties regarding costs.

The final orders of the court were that the proceedings commenced by Lambert Property Group Pty Ltd by the originating application filed on 11 October 2013 be struck out and that the court would hear from the parties as to costs. The court's decision highlighted the importance of adhering to procedural rules and properly prosecuting claims in court proceedings.

Orders

Orders of the court

1. The proceedings commenced by Lambert Property Group Pty Ltd by originating application filed on 11 October 2013 be struck out;

2. I will hear from the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Lambert Property Group Pty Ltd v SJ Daly & Ors [2015] QPEC 4
PARTIES:	LAMBERT PROPERTY GROUP PTY LTD (applicant/respondent) v SEAN JOHN DALY (first respondent/applicant) and DANIELLE MARY DALY (second respondent/applicant) and SEAN JOHN KENNEDY DALY (third respondent/applicant)
FILE NO/S:	3900/13
DIVISION:	Planning and Environment
PROCEEDING:	Hearing of various applications
ORIGINATING COURT:	Planning and Environment Court of Queensland
DELIVERED ON:	20 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2015
JUDGE:	RS Jones DCJ
ORDER:	1. The proceedings commenced by Lambert Property Group Pty Ltd by originating application filed on 11 October 2013 be struck out; 2. I will hear from the parties as to costs.
CATCHWORDS:	ORIGINATING APPLICATION – where applicant respondent filed originating application seeking declaratory relief on 11 October 2013 – where respondent applicants were unsuccessful in previous strike out application – where strike out application primarily grounded on the applicant respondents’ failure to properly prosecute its originating application STRIKE OUT APPLICATION – where respondent applicants sought to renew their strike out application by way of an oral application – where oral application opposed primarily on the ground that it lacked merits or, in the alternative ought be brought in a more formal way by the filing of a further application and supporting material Cooper v Hopgood & Ganim [1999] Qd R 113 Battersby v Anglo-American Oil Co Ltd [1945] KB 23 MacDonnell v Rolley & Ors [2000] QSC 58 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Hansell and Anor v Collison Finance and Investments Pty Ltdand Ors [2006] QDC 54 Lambert Property Group Pty Ltd v S Daly & Ors [2014] QPEC 44
COUNSEL:	Mr Gore QC with Mr JG Lyons of counsel for Lambert Property Group Pty Ltd Mr Horton QC for S, D and SJ Daly
SOLICITORS:	HWL Ebsworth Lawyers for Lambert Property Group Pty Ltd Minter Ellison Lawyers for S, D and SJ Daly