Lee John Driscoll v DM Developments Pty Ltd

[2013] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee John Driscoll v DM Developments Pty Ltd [2013] QDC 029

PARTIES:

LEE JOHN DRISCOLL

(Appellant)

And

DM DEVELOPMENTS PTY LTD

(Respondent)

FILE NO/S:

3075/12

DIVISION:

Appellate

PROCEEDING:

Appeal from Magistrates Court

ORIGINATING COURT:

Brisbane

DELIVERED ON:

25 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2013

JUDGE:

Robin QC, DCJ

ORDER:

Appeal dismissed with costs to be assessed if not agreed

CATCHWORDS:

Uniform Civil Procedure Rules 1999 r16 r144

Appeal from Magistrate’s decision to stay a claim - Claim in substance identical with a counterclaim by the plaintiff (defendant in an earlier proceeding) - In that proceeding judgment was given against the defendant for rent claimed and his counterclaim was dismissed pursuant to a “guillotine” order when he failed to make disclosure as required by the order - Whether new claim an abuse of process

COUNSEL:

C Stevenson (Solicitor) for the appellant/plaintiff

N Jarro for the respondent/defendant

SOLICITORS:

Ace Solicitors for the appellant/plaintiff

Robert Bax and Associates for the respondent/defendant

1. Mr Driscoll appeals against a Magistrate’s ordering a stay of his claim M1328/20012 filed 8 February 2012. The order was made under r 16(g) of the Uniform Civil Procedure Rules.  The appeal was started by a Notice of Appeal Subject to Leave; it came a day late - as to which the respondent company (defendant in the claim) takes no point.  To the extent leave is required, Mr Driscoll may be taken to have it.

1. In Mr Driscoll’s proceeding, the company had filed a Conditional Notice of Intention to Defend under r 144 disputing the Magistrate’s Court’s jurisdiction and the regularity of the claim on basis of the plaintiff’s being estopped by reason of the dismissal of his counterclaim in proceeding N1192/2009 (Beenleigh). For practical purposes the claim and that counterclaim are identical; the new claim adds to the original counterclaim for some $131,719.98 a further $20,000 for alleged loss of use of a motor vehicle allegedly promised to Mr Driscoll as additional consideration for work he did to earn the aforementioned sum and $27,200, being an amount for rent of premises let to him by DM Developments Pty Ltd, the plaintiff in 1192/2009, now defendant in 1328/2012. Notwithstanding the differences noted, by way of further claims, I took it to be accepted by Mr Driscoll’s solicitor advocate, Mr Stevenson, that the claims were the same for practical purposes. The counterclaim had pleaded entitlement to the vehicle.

1. The dismissal of the counterclaim occurred by the same order that gave judgement in favour of the company for that amount of rent.  Mr Driscoll pleads that free use of the premises was another part of the emoluments due to him for the work.  The statement of claim seeks $178,990.98 damages for breech of contract, alternatively $131,790.98 damages for unjust enrichment.  The claim, however, asks for $150,000 under either or both of those heads, conformably with the jurisdictional limit. 

1. The company’s application under r 16 was made to satisfy r 144(4). This procedure granted to…