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LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd

LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd

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Case Copied 20 May 2011 27 min read

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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 2010

DIVISION:

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 made

ORDER:

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 292

Agar 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]…

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.

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Details

Case: [2011] QCA 105
Decision Date: 20 May 2011

CaseChat Overview and Summary

LCR Mining Group Pty Ltd, the appellants, pursued a claim against Ocean Tyres Pty Ltd, the respondent, for debt recovery in the District Court of Queensland. The respondent did not provide sufficient evidence to substantiate a defence, leading the primary judge to grant a summary judgment under rule 292 of the Uniform Civil Procedure Rules 1999 (Qld). The respondent contested the judge's conclusion that there was no real prospect of successfully defending the claim. Additionally, the respondent argued that a cross-claim could be considered a set-off under rule 173 of the same rules, thus acting as a defence to the appellant's claim, despite not explicitly pleading a set-off.

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

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:	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 2010
DIVISION:	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 made
ORDER:	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 292 Agar 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]…