Lo v Mr

Case [2018] QDC 5

DISTRICT COURT OF QUEENSLAND

CITATION:

LO & Anor v MR [2018] QDC 5

PARTIES:

LO AND MO

(plaintiffs)

v

MR

(defendant)

FILE NO/S:

BD 4775/15

DIVISION:

Civil

PROCEEDING:

Application 

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 December 2017

JUDGE:

Smith DCJA

ORDER:

1.   The application for summary judgment by the defendant in respect of the claim and counter-claim is dismissed.

2.   I will hear the parties on the question of costs.

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether summary judgment should be given in favour of the defendant in respect of the claim under r 293 – whether summary judgment should be given in favour of the defendant on the counter-claim under r 292

Limitation of Actions Act 1974 (Q) s 10

Uniform Civil Procedure Rules 1999 (Q) rr 292, 293

Abela v Public Trustee [1983] 1 NSWLR 308

Anderson v Anderson [2016] NSWSC 1204

Baumgartner v Baumgartner (1987) 164 CLR 137

Cetojevic v Cetojevic [2007] NSWCA 33

Delehunt v Carmody (1986) 161 CLR 464

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Bartha v O’Riordan [2004] QSC 205

Fitzgerald v Masters (1956) 95 CLR 420

Giumelli v Giumelli (1999) 196 CLR 101

Mackay v Pearce [2007] QSC 195

Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375

Muschinski v Dodds (1985) 160 CLR 583

Public Trustee v Pfeiffle [1991] 1 VR 19

Re Pozzi [1982] Qd R 499

Saleeba v Wilke [2007] QSC 298

Sprott v Harper [2000] QCA 391

Wright v Gibbons (1949) 78 CLR 313

COUNSEL:

Mr P Travis for the plaintiffs

Mr M Wilson for the defendant

SOLICITORS:

Gadens Lawyers for the plaintiffs

Porta Lawyers for the defendant

Introduction

  1. The defendant applies for summary judgment as against the plaintiffs pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Q) in respect of the claims by the plaintiffs against the defendant and further claims judgment pursuant to r 292 in respect of his counter-claim against the plaintiffs. There was a further application concerning an order dated 28 January 2016 which was adjourned with costs reserved.

  1. In considering the applications for summary judgment, I have regard to the statements of principle contained in Deputy Commissioner of Taxation v Salcedo[1] where it was held that:

“Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial.”

[1][2005] 2 Qd R 232 at [17] per Williams JA.

  1. Atkinson J held at [44]:

“In the case of an application by the plaintiff, the court must consider if it is satisfied that:

(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and

(b)…

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Details
AGLC
Lo v Mr [2018] QDC 5
Case
[2018] QDC 5
Decision Date

CaseChat Overview and Summary

The case before the court involved a dispute between Lo, the plaintiff, and Mr, the defendant. The plaintiff, Lo, brought a claim against the defendant for alleged breaches of contract and sought damages. In response, the defendant filed a counterclaim against Lo for damages relating to the same contract. The matter was heard in the District Court of Queensland. The defendant applied for summary judgment in respect of both the plaintiff's claim and the counterclaim, citing that there were no genuine issues of material fact to be determined and that the defendant was entitled to judgment as a matter of law.

The court was required to decide whether summary judgment should be granted in favour of the defendant concerning the plaintiff's claim and the counterclaim. The court examined the evidence presented by both parties and considered whether there were any genuine issues of material fact that needed to be resolved through a trial. Additionally, the court evaluated whether the defendant was entitled to judgment as a matter of law based on the undisputed facts.

After examining the evidence and the arguments presented by both parties, the court found that there were genuine issues of material fact that needed to be determined at a trial. The court held that the defendant was not entitled to judgment as a matter of law because the evidence presented did not conclusively support the defendant's position. Consequently, the court dismissed the defendant's application for summary judgment in respect of both the claim and the counterclaim. The court also noted that it would hear the parties on the question of costs at a later date.

Orders

Orders of the court

1. The application for summary judgment by the defendant in respect of the claim and counter-claim is dismissed.

2. I will hear the parties on the question of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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