Lee v Di Carlo (No 2)

[2023] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee v Di Carlo (No 2) [2023] QDC 212

PARTIES:

CHOONHWA LEE

(plaintiff/respondent)
v

SALVATORE DI CARLO

(defendant/applicant)

FILE NO:

BD No 726 of 2021

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Date of Order: 17 November 2023
Date of Publication of Reasons: 21 November 2023

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

17 November 2023

JUDGE:

Sheridan DCJ

ORDER:

The defendant is required to elect whether to call evidence prior to proceeding with the no case submission on its merits.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – where the plaintiff claims $240,000 from the defendant, alleged to be monies loaned by the plaintiff to the defendant at the defendant’s request – where the defendant argued that the plaintiff’s evidence-in-chief did not support the plaintiff’s pleaded case – where the defendant made a no case to answer submission at the conclusion of the plaintiff’s evidence-in-chief and sought to not be required to elect whether to call evidence – whether the defendant should be required to make an election and if so whether the election should be made prior to proceeding with the no case submission on its merits

LEGISLATION:

Property Law Act 1974 (Qld), s 56

CASES:

Brian Geaney Pty Ltd v Close Constructions Pty Ltd [2003] QSC 235
Compaq Computer Australia Pty Ltd v Merry & Ors (1998) 157 ALR 1
J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch (No 2) (1992) 111 ALR 377
Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VR 187
The Union Bank of Australia Limited v Puddy [1949] VLR 242
Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 15 ACLR 416

COUNSEL:

C Templeton for the plaintiff/respondent

P Hackett for the defendant/applicant

SOLICITORS:

Aitken Whyte Lawyers for the plaintiff/respondent

NR Barbi Solicitors for the defendant/applicant

1. At the conclusion of the plaintiff’s evidence-in-chief, and prior to the defendant commencing cross-examination of the plaintiff, counsel for the defendant made a “no case to answer submission without being put to an election” and indicated that he would like to see the transcript before bringing the application formally.

2. By agreement between counsel, orders were made for the filing of a formal application, the filing of written submissions and the hearing of oral argument.

3. At the end of oral argument, I ruled that I would require the defendant to make an election before hearing the substantive application.  These are my reasons.

4. The primary issue for determination on the pleadings is the terms of an agreement between the plaintiff and the defendant in respect of money given by the plaintiff to the defendant.  As summarised in submissions by the defendant, the particular issue is whether that money was:

   (a)a loan to the defendant, as pleaded by the plaintiff; or

   (b)to be pooled with funds of the defendant and lent by the plaintiff and…