Mansour t/as Quick Start Mechanical and Performance v Cilliers - [2014] QDC 175

DISTRICT COURT OF QUEENSLAND

CITATION:

Mansour t/as Quick Start Mechanical and Performance v Cilliers [2014] QDC 175

PARTIES:

HAZIM MANSOUR t/as QUICK START MECHANICAL AND PERFORMANCE
(ABN 67355747449)
(plaintiff)

v

RUSSELL WILLEM CILLIERS
(defendant)

FILE NO/S:

93/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

22 August 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

8 August 2014

JUDGE:

Smith DCJ

ORDER:

The defendant’s application for summary judgment is dismissed.1.

I order the plaintiff give further and better particulars of his claim in accordance with these reasons.2.

The defendant’s application for security for costs is dismissed.3.

The plaintiff’s application for summary judgment is dismissed.4.

5.          Liberty to apply.

6.          I will hear the parties on the question of any directions to be made and as to costs.

CATCHWORDS:

PROCEDURE- Applications for summary judgment.- application for particulars- application for security for costs

CONTRACT- Restraint of Trade Clause- whether valid- whether breached by the defendant

Uniform Civil Procedure Rules 1999 (Q) Rr 155, 161, 292, 293, 670, 671, 672

Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300

Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227

Elders Rural Services Australia Pty Ltd & Anor v Gooden [2014] QDC 110

Jaddcal Pty Ltd v Minson (No 3) [2011] WASC 362

James Hardie v Putt [1998] NSWSC 434

Lindner v Murdock’s Garage (1950) 83 CLR 628

Robson v Robson [2008] QCA 36

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Yandil Holdings Pty Ltd v Insurance Company of North America and others [1986] 7 NSWLR 571.

COUNSEL:

Plaintiff self- represented

Solicitors for the Defendant

SOLICITORS:

Plaintiff self-represented

Anne Murray and Co Solicitors for the Defendant

Introduction

This is an application by the defendant for judgment pursuant to UCPR 293. Alternatively the defendant applies for further and better particulars; and security for costs in the amount of $40,000.

The plaintiff has applied also for summary judgment pursuant to UCPR 292.

I have taken into account the applicable principles, the evidence tendered and the submissions made in reaching my decision. I also note that onus of proof is on the party seeking to justify the particular order sought.

Applicable law

Rule 292 provides:

“292 Summary judgment for plaintiff
(1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2) If the court is satisfied that—
(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and
(b)there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.”

Rule…

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.

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Details

Case: [2014] QDC 175
Decision Date: 22 August 2014

CaseChat Overview and Summary

In the case of Mansour t/as Quick Start Mechanical and Performance v Cilliers, the plaintiff, Quick Start Mechanical and Performance, brought an action against Cilliers for breach of a restraint of trade clause. The plaintiff sought summary judgment against the defendant on the grounds that the restraint of trade clause was valid and that the defendant had breached it. The defendant, Cilliers, responded by applying for summary judgment, arguing that the clause was unreasonable and therefore invalid. Additionally, Cilliers applied for security for costs.

The court was required to determine the validity of the restraint of trade clause and whether the defendant had breached it. This involved examining the enforceability of the clause in light of relevant precedent and principles of contract law. The court needed to assess whether the clause was reasonable and not contrary to public policy. Furthermore, the court had to consider whether the defendant had acted in a manner that breached the terms of the clause.

The court found that the restraint of trade clause was valid and enforceable. However, it dismissed the plaintiff's application for summary judgment, as the plaintiff had not provided sufficient particulars of the breach. The court also dismissed the defendant's application for security for costs, ruling that the defendant had not demonstrated a need for such security. Ultimately, the court determined that the matter required further particulars and evidence before a final determination could be made on the merits of the claim.

The court ordered the plaintiff to provide further and better particulars of the claim in accordance with the reasons provided. Both applications for summary judgment were dismissed, and the application for security for costs was also dismissed. The court reserved the right to hear further submissions on directions and costs.

Orders

Orders of the court

The defendant’s application for summary judgment is dismissed.1.

I order the plaintiff give further and better particulars of his claim in accordance with these reasons.2.

The defendant’s application for security for costs is dismissed.3.

The plaintiff’s application for summary judgment is dismissed.4.

5. Liberty to apply.

6. I will hear the parties on the question of any directions to be made and as to costs.

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:	Mansour t/as Quick Start Mechanical and Performance v Cilliers [2014] QDC 175
PARTIES:	HAZIM MANSOUR t/as QUICK START MECHANICAL AND PERFORMANCE (ABN 67355747449) (plaintiff) v RUSSELL WILLEM CILLIERS (defendant)
FILE NO/S:	93/13
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Rockhampton
DELIVERED ON:	22 August 2014
DELIVERED AT:	Rockhampton
HEARING DATE:	8 August 2014
JUDGE:	Smith DCJ
ORDER:	The defendant’s application for summary judgment is dismissed.1. I order the plaintiff give further and better particulars of his claim in accordance with these reasons.2. The defendant’s application for security for costs is dismissed.3. The plaintiff’s application for summary judgment is dismissed.4. 5. Liberty to apply. 6. I will hear the parties on the question of any directions to be made and as to costs.
CATCHWORDS:	PROCEDURE- Applications for summary judgment.- application for particulars- application for security for costs CONTRACT- Restraint of Trade Clause- whether valid- whether breached by the defendant Uniform Civil Procedure Rules 1999 (Q) Rr 155, 161, 292, 293, 670, 671, 672 Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227 Elders Rural Services Australia Pty Ltd & Anor v Gooden [2014] QDC 110 Jaddcal Pty Ltd v Minson (No 3) [2011] WASC 362 James Hardie v Putt [1998] NSWSC 434 Lindner v Murdock’s Garage (1950) 83 CLR 628 Robson v Robson [2008] QCA 36 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Yandil Holdings Pty Ltd v Insurance Company of North America and others [1986] 7 NSWLR 571.
COUNSEL:	Plaintiff self- represented Solicitors for the Defendant
SOLICITORS:	Plaintiff self-represented Anne Murray and Co Solicitors for the Defendant