M v. W - [2009] QDC 55

DISTRICT COURT OF QUEENSLAND

CITATION:

M v W [2009] QDC 55

PARTIES:

M

(Plaintiff)

v

W

(Defendant)

FILE NO/S:

3785 of 2004

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

30 January 2009

DELIVERED AT:

Brisbane District Court

HEARING DATE:

23 January 2009

JUDGE:

M W Forde DCJ

ORDER:

(1)                   The application to extend the time to comply with the order of 14 November 2008 is refused.

(2)                   Judgment is given for the plaintiff conditional on the assessment of damages.

(3)                   It is ordered that the parties comply with Practice Direction No 5 of 2004 in so far as it is now applicable and in particular that a mediation take place in the event that there has been no mediation to date.

(4) It is ordered that damages be assessed by the District Court at Brisbane in accordance with the provisions of the Property Law Act 1974 Division 4 Subdivision 3.

(5)                   It is further ordered that the defendant do pay the costs of and incidental to this application including any reserved costs to be assessed or agreed.

CATCHWORDS:

PROCEDURE – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – RELIEF AGAINST – a self-executing order was made requiring the defendant to provide disclosure in a specified way by a specified date – in the event of failure to comply with the order, judgement was applied for – the defendant seeks relief from the operation of that order, under r 7 or r 668 of the Uniform Civil Procedure Rules – whether to grant relief – assessment of damages upon judgement being entered – mode of assessment.

Property Law Act 1974 (Qld) Part 19, ss 297(f), 331.

Uniform Civil Procedure Rules 1999 (Qld) rr 7, 225(2)(b), 283, 284, 509, 510, 667 and 668.

Autodesk Inc v Dyason [No 2] [1992-1993] 176 CLR 300. – Applied.

Berowra Holdings Pty Limited v Gordon [2006] 225 CLR 364. – applied.

CL v JMG [2007] QSC 169. – referred to.

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1987-1988] 165 CLR 268 – applied.

HAG v MAW [2007] QCA 217. – referred to.

Hesz v Sotheby [1960] [WLR] 285. – referred to.

KGK Constructions v East Coast Earthmoving [1985] 2 Qd R 13. – referred to.

Mango Boulevard Pty Ltd v Spencer [2007] QSC 276 – applied.

McIllwraith McEacharn Operations Ltd v C E Heath Underwriting & Insurance (Aust) Ltd No 2 [1995] 1 Qd R 363. – referred to.

Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138. – referred to.

COUNSEL:

V G Brennan for the Plaintiff

S Gordon for the Defendant

SOLICITORS:

Barry and Nilsson Lawyers for the Plaintiff

Reaburn Solicitors for the Defendant

The plaintiff and the defendant lived in a de facto relationship from June 1994 to December 1997.[1] They were born on 6 May 1937 and 11 April 1937 respectively. The plaintiff alleges that during that time he contributed both in a financial…

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 M v. W

Details

AGLC: M v W [2009] QDC 55
Case: [2009] QDC 55
Decision Date: 30 January 2009

CaseChat Overview and Summary

This case concerns a legal dispute between M and W, where the defendant is required to provide disclosure under a self-executing order issued on 14 November 2008. The defendant failed to comply with the order, leading to an application for judgment. The defendant subsequently sought relief from the operation of that order under rules 7 or 668 of the Uniform Civil Procedure Rules. The court was tasked with determining whether to grant relief and, if so, the mode of assessing damages upon judgment being entered.

The court found that the defendant's application to extend the time to comply with the order was not justified. Consequently, the application to extend time was refused. Judgment was granted in favour of the plaintiff, but the amount of damages was to be assessed conditionally. The court also mandated that the parties comply with Practice Direction No 5 of 2004, including a mediation session if one had not already occurred. Furthermore, the court ordered that damages be assessed by the District Court at Brisbane in accordance with the Property Law Act 1974 Division 4 Subdivision 3. Lastly, the defendant was ordered to pay the costs of and incidental to this application, including any reserved costs to be assessed or agreed.

The court's decision clearly sets out the procedural outcomes and the specific steps required for the next phase of the case, including the assessment of damages and the mediation process. The defendant's application for relief was denied, and the plaintiff is set to receive judgment with conditional damages pending the assessment by the District Court.

Orders

Orders of the court

(1) The application to extend the time to comply with the order of 14 November 2008 is refused.

(2) Judgment is given for the plaintiff conditional on the assessment of damages.

(3) It is ordered that the parties comply with Practice Direction No 5 of 2004 in so far as it is now applicable and in particular that a mediation take place in the event that there has been no mediation to date.

(4) It is ordered that damages be assessed by the District Court at Brisbane in accordance with the provisions of the Property Law Act 1974 Division 4 Subdivision 3.

(5) It is further ordered that the defendant do pay the costs of and incidental to this application including any reserved costs to be assessed or agreed.

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:	M v W [2009] QDC 55
PARTIES:	M (Plaintiff) v W (Defendant)
FILE NO/S:	3785 of 2004
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	30 January 2009
DELIVERED AT:	Brisbane District Court
HEARING DATE:	23 January 2009
JUDGE:	M W Forde DCJ
ORDER:	(1) The application to extend the time to comply with the order of 14 November 2008 is refused. (2) Judgment is given for the plaintiff conditional on the assessment of damages. (3) It is ordered that the parties comply with Practice Direction No 5 of 2004 in so far as it is now applicable and in particular that a mediation take place in the event that there has been no mediation to date. (4) It is ordered that damages be assessed by the District Court at Brisbane in accordance with the provisions of the Property Law Act 1974 Division 4 Subdivision 3. (5) It is further ordered that the defendant do pay the costs of and incidental to this application including any reserved costs to be assessed or agreed.
CATCHWORDS:	PROCEDURE – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – RELIEF AGAINST – a self-executing order was made requiring the defendant to provide disclosure in a specified way by a specified date – in the event of failure to comply with the order, judgement was applied for – the defendant seeks relief from the operation of that order, under r 7 or r 668 of the Uniform Civil Procedure Rules – whether to grant relief – assessment of damages upon judgement being entered – mode of assessment. Property Law Act 1974 (Qld) Part 19, ss 297(f), 331. Uniform Civil Procedure Rules 1999 (Qld) rr 7, 225(2)(b), 283, 284, 509, 510, 667 and 668. Autodesk Inc v Dyason [No 2] [1992-1993] 176 CLR 300. – Applied. Berowra Holdings Pty Limited v Gordon [2006] 225 CLR 364. – applied. CL v JMG [2007] QSC 169. – referred to. FAI General Insurance Co Ltd v Southern Cross Exploration NL [1987-1988] 165 CLR 268 – applied. HAG v MAW [2007] QCA 217. – referred to. Hesz v Sotheby [1960] [WLR] 285. – referred to. KGK Constructions v East Coast Earthmoving [1985] 2 Qd R 13. – referred to. Mango Boulevard Pty Ltd v Spencer [2007] QSC 276 – applied. McIllwraith McEacharn Operations Ltd v C E Heath Underwriting & Insurance (Aust) Ltd No 2 [1995] 1 Qd R 363. – referred to. Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138. – referred to.
COUNSEL:	V G Brennan for the Plaintiff S Gordon for the Defendant
SOLICITORS:	Barry and Nilsson Lawyers for the Plaintiff Reaburn Solicitors for the Defendant