Mansukhani v Karam

[2006] QDC 180

DISTRICT COURT OF QUEENSLAND

CITATION:

Mansukhani  v Karam  & Ors [2006] QDC 180

PARTIES:

DAYAL MANSUKHANI
Plaintiff/Respondent

v


THAMIR KARAM
First Defendant
and
SAM HAMMADIEH
Second Defendant
and
RACKEMANN DCJ
Third Defendant
and
BRUCE McLEOD
Fourth Defendant
and
BLAYNE LEDGERS
Fifth Defendant
and
BLAYNE LEDGERS (T/as Commercial and Property Lawyers)
Sixth Defendant
and
CRAIG SMILES
Seventh Defendant
and
JAMES SMALL
Eighth Defendant
and
M J CAMPBELL
Ninth Defendant
and
J FAULKNER
Tenth Defendant
and
MOLECTRA TECHNOLOGIES PTY LTD
(ABN 5809184944)
Eleventh Defendant
and
BRUCE NEIL
Twelfth Defendant
and
SAT CIVIL CONSTRUCTIONS PTY LTD
ACN 077 817 737
Thirteenth Defendant/Applicant
and
JAN FRANK WEINERT
Fourteenth Defendant/Applicant
and
VERONICA ANN COOPER
Fifteenth Defendant/Applicant

FILE NO:

603/2005

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

Southport

DELIVERED ON:

23 June 2006

DELIVERED AT:

Southport

HEARING DATE:

20 March  2006

JUDGE:

Dearden DCJ

ORDER:

THAT THE CLAIM AGAINST THE THIRTEENTH, FOURTEENTH AND FIFTEENTH DEFENDANTS IS DISMISSED

CATCHWORDS:

APPLICATION – Summary Judgment – Cause of Action

Uniform Civil Procedure Rules

COUNSEL:

Mr T Houghton for the thirteenth, fourteenth and fifteenth defendants/applicants

Mr S Punalekar appeared amicus curiae for the plaintiff/respondent

SOLICITORS:

Provestlaw for the thirteenth, fourteenth and fifteenth defendants/applicants

1. This is an application by the thirteenth defendant (SAT Civil Constructions Pty Ltd), fourteenth defendant (Jan Frank Weinert) and fifteenth defendant (Veronica Ann Cooper) seeking that the claim and statement of claim filed in the proceedings on 26 October 2005 be struck out[1] and/or that summary judgment be given in favour of the thirteenth, fourteenth and fifteenth defendants against the plaintiff (Dayal Mansukhani)[2].   

   [1]  Uniform Civil Procedure Rules (UCPR) r 171

   [2] UCPR r 293

THE LAW

1. As a defence has been filed[3], albeit that it was effectively impossible for the defendants to plead to the vast bulk of the plaintiff’s statement of claim, then summary judgment is available to the defendants[4].  In Deputy Commissioner of Taxation v Salcedo[5] the relevant test was described by Williams JA as follows: “the judge determining [a summary judgment application] is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial”[6].  Atkinson J characterised the test as being that “the Court must consider whether there exists a real, as opposed to a fanciful, prospect of success” and further stated that “if there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment”[7].

   [3]  Defence of the first, second & third defendants filed 25 November 2005

   [4] UCPR r 293

   [5] [2005] QCA 227

   [6] Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 per Williams JA at para 17

   [7] Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 per Atkinson J at para 47

DECISION

1. It is effectively impossible to ascertain the basis of the action insofar as it is asserted against the thirteenth, fourteenth and fifteenth defendants/applicants.  In fact, the only specific reference that I have been able to ascertain in the plaintiff’s statement of claim is “defendant: 13, 14, 15 trail [sic] and argument will be based on case district Southport number: 501/05 Exhibit 3B to 3E.”  It is clear, in my view, that the statement of claim does not disclose any cause of action as against the thirteenth, fourteenth and fifteenth defendants, and is scandalous, frivolous, vexatious and is an abuse of the Court proceedings.

1. Accordingly, given that the proceedings have no prospects of success whatsoever, it is appropriate that judgment should be awarded against the plaintiff, and the claim dismissed, insofar as it relates to the thirteenth, fourteenth and fifteenth defendants/applicants.

CONCLUSION

1. The Court orders that the claim by the plaintiff against the thirteenth, fourteenth and fifteenth defendants is dismissed.

COSTS

1. I will hear the parties on costs.

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