Lee v Coffee Republic Pty Ltd - [2006] TASSC 84

[2006] TASSC 84

CITATION: Lee v Coffee Republic Pty Ltd [2006] TASSC 84

PARTIES:  LEE, Elizabeth Anne
  v
  COFFEE REPUBLIC PTY LTD (ACN 071 592 802)

ERINA DEVELOPMENTS PTY LTD (ACN 009 573 193)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  66/2005
DELIVERED ON:  24 October 2006
DELIVERED AT:  Launceston
HEARING DATE:  19 September 2006
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Pleadings – Striking out.
Supreme Court Rules 2000 (Tas), rr227, 244, 258, 259 and 367.

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Bardenhagen v Tasmanian Board Mills (1994) 4 Tas R 270; Republic of Peru v Peruvian Guano Co [1887] 36 Ch D 489, referred to.

Aust Dig Procedure [272]
Conveyancing – Land titles under Torrens system – Easements – Creation – Endorsements on certificates as evidence – Endorsement on certificate of dominant tenement – Conclusiveness of endorsements.

Land Titles Act 1980 (Tas), ss39, 40, 105 and 106.

Parramore v Duggan (1995) 183 CLR 633, referred to.

Aust Dig Conveyancing [253]

REPRESENTATION:

Counsel:
             Appellant/First Defendant:  M J McK Grove
             Respondent/Plaintiff:  R W Pearce
             Respondent/Second Defendant:                  K M McCarthy
Solicitors:
             Appellant/First Defendant:  Bishops
             Respondent/Plaintiff:  Douglas & Collins
             Respondent/Second Defendant:                  Archer Bushby

Judgment Number: [2006] TASSC 84
Number of paragraphs: 30

Serial No 84/2006
File No 66/2005

ELIZABETH ANNE LEE v COFFEE REPUBLIC PTY LTD (ACN 071 592 802)
and ERINA DEVELOPMENTS PTY LTD (ACN 009 573 193)

REASONS FOR JUDGMENT SLICER J

24 October 2006

The first defendant seeks review of a decision of the Master refusing to strike out the plaintiff's statement of claim. Issues raised by the review include those of pleadings and summary judgment. The second defendant does not seek to be involved in the review.

The plaintiff/respondent is the registered proprietor of land situate at 137 Charles Street, Launceston, being described in Certificate of Title, Volume 44900, folio 1. The plan, registered number D44900 attached to the title, shows the plaintiff's land to be adjacent to Charles Street and Brisbane Street and on the north-eastern side by a roadway 2.51 metres in width, which is the subject of these proceedings. The search report supplied by the Recorder of Titles in accordance with the Land Titles Act 1980 ("the Act") shows that the land owned by the plaintiff (described as Lot 1) was part of an allotment described in the previous Certificate of Title, Volume 3003, folio 33. Schedule 2 of the title ascertained by search states:

"Reservations and conditions in the Crown Grant, if any
benefiting easement: Right to go return pass and repass over Roadway on Diagram No 44900."

The first defendant is the registered proprietor of the land known as 137 Brisbane Street, described in Certificate of Title, Volume 101326, folio 1. The plaintiff has pleaded that the first defendant, by its servants or agents, entered into possession of the roadway shown on the plan and that those servants or…

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 Lee v Coffee Republic Pty Ltd

Details

AGLC: Lee v Coffee Republic Pty Ltd [2006] TASSC 84
Case: [2006] TASSC 84
Decision Date: 24 October 2006

CaseChat Overview and Summary

In Lee v Coffee Republic Pty Ltd, the matter was heard in the Supreme Court of Tasmania. The plaintiff, Mr Lee, brought an action against Coffee Republic, alleging that he had sustained injuries as a result of the defendant's negligence in the operation of their business premises. The dispute centred on whether Mr Lee's claim, as presented in his statement of claim, was sufficient in law to proceed to trial. The defendant sought to have the plaintiff's statement of claim struck out, arguing that it failed to disclose a cause of action.

The primary legal issues before the court were whether the plaintiff's statement of claim contained sufficient factual and legal particulars to support a negligence claim, and whether it was otherwise appropriate for the court to strike out the claim. The court considered the provisions of the Supreme Court Rules of Tasmania, particularly those relating to pleadings and the criteria for striking out a statement of claim. The court needed to determine whether Mr Lee's statement of claim complied with the necessary requirements and whether there were any grounds to dismiss the action without a trial.

In delivering the judgment, the court found that Mr Lee's statement of claim did not sufficiently detail the facts upon which the negligence claim was based. The court held that while the plaintiff had identified the general circumstances of the incident, the particulars were insufficient to enable the defendant to answer the claim adequately. The court also noted that the statement of claim failed to specify the nature of the negligence and how it led to the plaintiff's injuries. Consequently, the court concluded that the plaintiff's statement of claim did not meet the legal standards for pleading and ordered that it be struck out. The court emphasised that the plaintiff had an opportunity to amend the statement of claim to address these deficiencies, but ultimately, the claim was dismissed without a trial.

Orders