Macleod v Fraenkel - [2019] QDC 203

DISTRICT COURT OF QUEENSLAND

CITATION:

Macleod v Fraenkel [2019] QDC 203

PARTIES:

SIMON SCOTT MACLEOD

(plaintiff/respondent)

v

MARK FRAENKEL

(defendant/applicant)

FILE NO/S:

179 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

11 October 2019

DELIVERED AT:

Cairns

HEARING DATE:

6 September 2019

JUDGE:

Morzone QC DCJ

ORDER:

1.   Application filed on 10 July 2019 is allowed.

2.   The defendant has leave to withdraw the admissions made in or by the defence filed on 5 November 2018.

3.   The defendant has leave to file an amended defence and counterclaim in the terms of the draft pleading being exhibit MF1 to the affidavit of the defendant filed on 10 July 2019.

4.   The requirement to mark up all amendments contained in the amended defence and counterclaim otherwise required under r. 382(7) of the Uniform Civil Procedure Rules is dispensed with.

5.   Unless either party applies for a different costs order within 14 days of this order, the defendant will pay the plaintiff’s costs of the application to be assessed on the standard basis.

CATCHWORDS:

CIVIL PROCEEDING - CIVIL PROCEDURE – APPLICATION – Application to withdraw admissions in the defence and leave to file an amended pleading – whether express and deemed admissions absent explanation – whether relevant that self-represented defendant failed to appreciate gravity and significance of pleading – explanation for advent of admissions – explanation for delay in application to withdraw – whether sufficient evidentiary basis for withdrawing admissions to now contest the allegations deemed admitted.

Legislation

Uniform Civil Procedure Rules 1999 (Qld)
Limitation of Actions Act 1974 (Qld)

Cases

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Du Boulay v Worrell [2009] QCA 63.
Hanson Construction Materials v Davey [2010] QCA 246
Mohareb v Lambert & Rehbein (SEQ) Pty Ltd [2010] QSC 126
McGowan v. Middleton (1883) 11 QBD 464
McLeish v. Faure (1979) 25 ALR 403
Philip Morris Inc v. Adam P Brown Male Fashions Pty Ltd (1981) 168 CLR 457
Ridolfi v Rigato Farms [2000] 2 Qd R 455
Salt v. Cooper (1880) 16 Ch. D. 544
Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277

COUNSEL:

S Carius for the Plaintiff/Respondent

M Jonsson QC for the Defendant/Applicant

SOLICITORS:

Axia Litigation for the Plaintiff/Respondent

Miller Bou-Samra Lawyers for the Defendant/Applicant

The defendant who is now represented and embarrassed by his pleading applies for leave to withdraw express and deemed admissions in his defence, and leave to file of an amended defence and counterclaim. The plaintiff opposes the application.

Background

The plaintiff sues the defendant in defamation by claim and statement of claim file on 5 October 2018.The then unrepresented defendant filed a defence which admitted, by operation of rule 166(5) of the Uniform Civil Procedure Rules 1999 (Qld), almost all the substantive allegations in the proceeding. Pleadings have closed since the plaintiff filed a reply.

Disclosure is complete and the parties have engaged in a settlement conference on 27 February 2019. However, on 26…

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 Macleod v Fraenkel

Details

AGLC: Macleod v Fraenkel [2019] QDC 203
Case: [2019] QDC 203
Decision Date: 11 October 2019

CaseChat Overview and Summary

Macleod filed proceedings against Fraenkel seeking relief in relation to alleged breaches of contract. Fraenkel, who was self-represented, filed a defence and counterclaim in which he made admissions of several material facts. Macleod subsequently filed an application seeking to have Fraenkel's admissions enforced and for judgment to be entered against Fraenkel. Fraenkel then made an application to withdraw the admissions and to file an amended defence and counterclaim. The primary legal issue before the court was whether Fraenkel should be permitted to withdraw the admissions made in his defence and counterclaim. The court had to consider the effect of express and deemed admissions, whether Fraenkel had provided an explanation for his failure to appreciate the gravity and significance of his pleading, and the reasons for the delay in filing the application to withdraw.

The court found that the absence of an explanation from Fraenkel for his failure to appreciate the gravity of his admissions was significant. However, the court noted that Fraenkel had provided an explanation for the advent of the admissions and for the delay in filing the application to withdraw. The court considered that the explanation provided was sufficient to justify the relief sought. The court also found that there was a sufficient evidentiary basis for Fraenkel to now contest the allegations deemed admitted. The court held that Fraenkel's explanation for the advent of the admissions and for the delay in filing the application to withdraw was sufficient to justify the relief sought. The court noted that Fraenkel had provided an explanation for the delay, which was that he had not fully appreciated the gravity of the admissions until after he had filed the defence and counterclaim. The court found that this explanation was sufficient to justify the relief sought.

Accordingly, the court allowed the application and granted leave for Fraenkel to withdraw the admissions and to file an amended defence and counterclaim. The court also dispensed with the requirement to mark up all amendments contained in the amended defence and counterclaim. The court ordered that unless either party applied for a different costs order within 14 days, Fraenkel would pay Macleod's costs of the application to be assessed on the standard basis.

Orders

Orders of the court

1. Application filed on 10 July 2019 is allowed.

2. The defendant has leave to withdraw the admissions made in or by the defence filed on 5 November 2018.

3. The defendant has leave to file an amended defence and counterclaim in the terms of the draft pleading being exhibit MF1 to the affidavit of the defendant filed on 10 July 2019.

4. The requirement to mark up all amendments contained in the amended defence and counterclaim otherwise required under r. 382(7) of the Uniform Civil Procedure Rules is dispensed with.

5. Unless either party applies for a different costs order within 14 days of this order, the defendant will pay the plaintiff’s costs of the application to be assessed on the standard basis.

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:	Macleod v Fraenkel [2019] QDC 203
PARTIES:	SIMON SCOTT MACLEOD (plaintiff/respondent) v MARK FRAENKEL (defendant/applicant)
FILE NO/S:	179 of 2018
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Cairns
DELIVERED ON:	11 October 2019
DELIVERED AT:	Cairns
HEARING DATE:	6 September 2019
JUDGE:	Morzone QC DCJ
ORDER:	1. Application filed on 10 July 2019 is allowed. 2. The defendant has leave to withdraw the admissions made in or by the defence filed on 5 November 2018. 3. The defendant has leave to file an amended defence and counterclaim in the terms of the draft pleading being exhibit MF1 to the affidavit of the defendant filed on 10 July 2019. *4. The requirement to mark up all amendments contained in the amended defence and counterclaim otherwise required under r. 382(7) of the Uniform Civil Procedure Rules* is dispensed with. 5. Unless either party applies for a different costs order within 14 days of this order, the defendant will pay the plaintiff’s costs of the application to be assessed on the standard basis.**
CATCHWORDS:	CIVIL PROCEEDING - CIVIL PROCEDURE – APPLICATION – Application to withdraw admissions in the defence and leave to file an amended pleading – whether express and deemed admissions absent explanation – whether relevant that self-represented defendant failed to appreciate gravity and significance of pleading – explanation for advent of admissions – explanation for delay in application to withdraw – whether sufficient evidentiary basis for withdrawing admissions to now contest the allegations deemed admitted. Legislation Uniform Civil Procedure Rules 1999 (Qld) Limitation of Actions Act 1974 (Qld) Cases Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Du Boulay v Worrell [2009] QCA 63. Hanson Construction Materials v Davey [2010] QCA 246 Mohareb v Lambert & Rehbein (SEQ) Pty Ltd [2010] QSC 126 McGowan v. Middleton (1883) 11 QBD 464 McLeish v. Faure (1979) 25 ALR 403 Philip Morris Inc v. Adam P Brown Male Fashions Pty Ltd (1981) 168 CLR 457 Ridolfi v Rigato Farms [2000] 2 Qd R 455 Salt v. Cooper (1880) 16 Ch. D. 544 Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277
COUNSEL:	S Carius for the Plaintiff/Respondent M Jonsson QC for the Defendant/Applicant
SOLICITORS:	Axia Litigation for the Plaintiff/Respondent Miller Bou-Samra Lawyers for the Defendant/Applicant