Lilypond Constructions Pty Ltd v Homann - [2005] QSC 263

SUPREME COURT OF QUEENSLAND

CITATION:

Lilypond Constructions Pty Ltd v Barry Kenneth Homann and Ors [2005] QSC 263

PARTIES:

LILYPOND CONSTRUCTIONS PTY LTD
(ACN 093 689 733)
(plaintiff)
v
BARRY KENNETH HOMANN
(first defendant)
BARRY KENNETH HOMANN AS TRUSTEE FOR THE HOMANN CONSULTING TRUST
(second defendant)
LILYPOND GROUP FINANCIAL SERVICES PTY LTD
(ACN 089 710 109)
(third defendant)
QUEENSLAND AND NORTHERN TERRITORY AGENCY SERVICE PTY LTD
(ACN 083 384 276)
(fourth defendant)

FILE NO:

1135 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2005

JUDGE:

Mackenzie J

ORDER:

1. Leave to withdraw admission in amended defence is granted and leave to amend the amended defence is granted
2. Applications for summary judgment are dismissed
3. Application for an order for production under r 223 is dismissed
4. On the defendants’ application for leave to withdraw the admission and to amend, no order as to costs
5. On the applicant’s applications for summary judgment, the plaintiff to pay the defendants’ costs of and incidental to the applications to be assessed
6. On the plaintiff’s application for production pursuant to r 223, the plaintiff pay the defendants’ costs of and incidental to the application to be assessed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT - where plaintiff sought judgment pursuant to r190 UCPR in respect of claim for payment of money – where plaintiff relied on an admission of liability by the defendant in amended defence – where defendant claimed amendment to defence containing the admission was made in error – where plaintiff claimed summary judgment pursuant to r292 UCPR in the alternative to judgment under r190 UCPR - whether plaintiff could rely on admission in amended defence to satisfy requirements of r190 – whether court should give summary judgment pursuant to r292 because defendants have no real prospect of success at trial

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADINGS – AMENDMENT – where defendants sought leave pursuant to r375 UCPR to amend amended defence – where amended defence contained an admission – where defendants claimed that inclusion of admission in amended defence was made by mistake and was contrary to defendants’ instructions – where defendant claimed in the alternative leave to withdraw admission pursuant to r188 UCPR – whether court should exercise discretion to allow defence to be amended – whether court should grant leave to allow defendant to withdraw admission contained in amended defence

Uniform Civil Procedure Rules 1999 (Qld) r 188, r 190, r 222, r 292, r 375

Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455

COUNSEL:

B Codd for the applicant
T Matthews for the first, second, third and fourth defendants

SOLICITORS:

O’Keefe Mahoney Bennett for the applicant
Lang Hemming and Hall for the respondents

MACKENZIE J:These matters are, firstly, an application by the plaintiff for summary judgment on what is…

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.

Keep reading for free

Create a free CaseChat account to read Lilypond Constructions Pty Ltd v Homann and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] QSC 263
Decision Date: 23 September 2005

CaseChat Overview and Summary

In the matter of Lilypond Constructions Pty Ltd v Homann, the plaintiff, a construction company, sought judgment in the Supreme Court of Queensland for a debt owed by the defendant. The plaintiff claimed that the defendant had admitted liability in an amended defence, which would allow the plaintiff to seek summary judgment. The defendant, however, argued that the admission was made in error and sought to amend the defence to remove the admission. The plaintiff also sought summary judgment under a different rule if the court did not grant judgment under the first rule. The central legal issues in the case were whether the plaintiff could rely on the admission in the amended defence to satisfy the requirements of the relevant rule, and whether the court should grant summary judgment under the alternative rule due to the defendants' lack of a real prospect of success at trial.

The court considered whether the admission in the amended defence was valid and whether the plaintiff could rely on it. The court held that the admission was not valid as it was made in error and contrary to the defendant's instructions. The court then considered whether it should exercise its discretion to allow the defence to be amended and to permit the defendant to withdraw the admission. The court granted leave to withdraw the admission and to amend the defence. The court dismissed the plaintiff's applications for summary judgment and for an order for production. The court also dismissed the defendants' application for leave to withdraw the admission and to amend with no order as to costs. On the plaintiff's application for production, the court ordered the plaintiff to pay the defendants' costs of and incidental to the application to be assessed.

The court's decision provided clarity on the validity of admissions made in error and the court's discretion in allowing amendments to pleadings. The court's dismissal of the plaintiff's applications for summary judgment and for an order for production meant that the case would proceed to trial. The court's order that the plaintiff pay the defendants' costs of and incidental to the applications demonstrated the importance of careful consideration of legal arguments and submissions in court proceedings.

Orders

Orders of the court

1. Leave to withdraw admission in amended defence is granted and leave to amend the amended defence is granted

2. Applications for summary judgment are dismissed

3. Application for an order for production under r 223 is dismissed

4. On the defendants’ application for leave to withdraw the admission and to amend, no order as to costs

5. On the applicant’s applications for summary judgment, the plaintiff to pay the defendants’ costs of and incidental to the applications to be assessed

6. On the plaintiff’s application for production pursuant to r 223, the plaintiff pay the defendants’ costs of and incidental to the application to be assessed

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:	Lilypond Constructions Pty Ltd v Barry Kenneth Homann and Ors [2005] QSC 263
PARTIES:	LILYPOND CONSTRUCTIONS PTY LTD (ACN 093 689 733) (plaintiff) v BARRY KENNETH HOMANN (first defendant) BARRY KENNETH HOMANN AS TRUSTEE FOR THE HOMANN CONSULTING TRUST (second defendant) LILYPOND GROUP FINANCIAL SERVICES PTY LTD (ACN 089 710 109) (third defendant) QUEENSLAND AND NORTHERN TERRITORY AGENCY SERVICE PTY LTD (ACN 083 384 276) (fourth defendant)
FILE NO:	1135 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2005
JUDGE:	Mackenzie J
ORDER:	1. Leave to withdraw admission in amended defence is granted and leave to amend the amended defence is granted 2. Applications for summary judgment are dismissed 3. Application for an order for production under r 223 is dismissed 4. On the defendants’ application for leave to withdraw the admission and to amend, no order as to costs 5. On the applicant’s applications for summary judgment, the plaintiff to pay the defendants’ costs of and incidental to the applications to be assessed 6. On the plaintiff’s application for production pursuant to r 223, the plaintiff pay the defendants’ costs of and incidental to the application to be assessed
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT - where plaintiff sought judgment pursuant to r190 UCPR in respect of claim for payment of money – where plaintiff relied on an admission of liability by the defendant in amended defence – where defendant claimed amendment to defence containing the admission was made in error – where plaintiff claimed summary judgment pursuant to r292 UCPR in the alternative to judgment under r190 UCPR - whether plaintiff could rely on admission in amended defence to satisfy requirements of r190 – whether court should give summary judgment pursuant to r292 because defendants have no real prospect of success at trial PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADINGS – AMENDMENT – where defendants sought leave pursuant to r375 UCPR to amend amended defence – where amended defence contained an admission – where defendants claimed that inclusion of admission in amended defence was made by mistake and was contrary to defendants’ instructions – where defendant claimed in the alternative leave to withdraw admission pursuant to r188 UCPR – whether court should exercise discretion to allow defence to be amended – whether court should grant leave to allow defendant to withdraw admission contained in amended defence Uniform Civil Procedure Rules 1999 (Qld) r 188, r 190, r 222, r 292, r 375 Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455
COUNSEL:	B Codd for the applicant T Matthews for the first, second, third and fourth defendants
SOLICITORS:	O’Keefe Mahoney Bennett for the applicant Lang Hemming and Hall for the respondents