SUPREME COURT OF QUEENSLAND
CITATION:
LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105
PARTIES:
LCR MINING GROUP PTY LTD
ACN 113 944 442
(appellant)
v
OCEAN TYRES PTY LTD
ACN 099 673 962
(respondent)FILE NO/S:
Appeal No 9840 of 2010
DC No 12 of 2010DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Gladstone
DELIVERED ON:
20 May 2011
DELIVERED AT:
Brisbane
HEARING DATE:
25 February 2011
JUDGES:
White JA, Margaret Wilson AJA, Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
Appeal dismissed with costs.
CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS – where the appellants brought an action against the respondent for the recovery of a debt – where the respondent adduced insufficient evidence to demonstrate a defence – where the primary judge gave a summary judgment order under r 292 Uniform Civil Procedure Rules 1999 (Qld) – whether the primary judge erred in concluding that there was no real prospect of successfully defending the claim
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – CROSS-CLAIMS: SET-OFF AND COUNTERCLAIM – SET-OFF – PRACTICE AND PLEADING – where the defence did not expressly plead a set-off but claimed that a cross-claim was sufficient – whether the respondent’s counter-claim could be characterised as a set-off under r 173 Uniform Civil Procedure Rules 1999 (Qld) so as to operate as a defence to the appellant’s claim
Civil Procedure Act 2005 (NSW)
Federal Court of Australia Act 1976 (Cth), s 31A
Imperial Acts Application Act 1984 (Qld), s 7
Uniform Civil Procedure Rules 1999 (Qld), r 173, r 292Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, cited
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, cited
Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469; [2002] QCA 231, cited
Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, cited
Coldham-Fussell & Ors v Commissioner of Taxation[2011] QCA 45, cited
Deputy-Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, cited
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited
Dubois v Ong & Anor[2004] QCA 185, cited
Forsyth v Gibbs [2009] 1 Qd R 403; [2008] QCA 103, cited
Gray v Morris [2004] 2 Qd R 118; [2004] QCA 5, cited
Herbst v Mayes Ex Parte Mayes [1903] QWN 29, cited
Hunt v Knabe (No 2) (1992) 8 WAR 96, cited
Indrisie v General Credits Ltd [1985] VR 251; [1985] CivRp 20, cited
J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 61 FLR 108; [1982] FCA 78, cited
James v Commonwealth Bank of Australia (1992) 37 FCR 445; [1992]…
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- Case
- [2011] QCA 105
- Decision Date
CaseChat Overview and Summary
The court examined whether the primary judge erred in his assessment of the respondent's defence prospects and if the cross-claim could be construed as a set-off. The court found that the respondent failed to present a valid defence and did not sufficiently plead a set-off. The cross-claim did not meet the criteria to operate as a set-off under the rules, and the respondent's argument that it was sufficient to characterise as a set-off was dismissed. The court held that the primary judge's decision was correct, and the respondent's appeal was dismissed with costs.
No further orders were made beyond dismissing the appeal with costs. The court emphasised the necessity for clear pleading of set-offs and the importance of providing adequate evidence to support a defence in civil proceedings.
Orders
Orders of the court
Appeal dismissed 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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