Maxicorp Pty Ltd v. Smith & Anor - [2007] QDC 114

DISTRICT COURT OF QUEENSLAND

CITATION:

Maxicorp Pty Ltd -v- Smith & Smith [2007] QDC 114

PARTIES:

MAXICORP PTY LTD (ACN 108 354 383)

Plaintiff

V

GREGORY DAVID SMITH

First Defendant

AND

MARIA SMITH

Second Defendant

FILE NO/S:

1317/07

DIVISION:

Civil

PROCEEDING:

Application for summary judgment and declaration

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 June 2007

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

4 June 2007

JUDGE:

Kingham DCJ

ORDER:

The defendants’ application of 23 May 2007, as amended by leave on 4 June 2007, is dismissed.1.

The parties are directed to confer about directions for the conduct of the claim and, failing agreement, either may list the matter before me on two days notice for directions to be made.2.

The defendants must pay the plaintiff’s costs of and incidental to the amended application as assessed if not agreed.3.

CATCHWORDS:

SUMMARY JUDMENT – Whether no real prospects of succeeding in claim – Whether no need for a trial of the claim – Application refused
CONTRACT – REPUDIATION – Alleged breaches – Referral to Commercial and Consumer Tribunal – Whether order sought from tribunal evinces an attention to be no longer bound by the contract
EQUITABLE MORTGAGE – Created by contract – Whether survived termination of contract – Whether secures payment of damages claimed
COSTS – Indemnity costs – Whether grounds for orders sought – costs awarded on a standard basis
Uniform Civil Procedure Rules 1999 (Qld), r293
CSR Limited v Casaron Pty Ltd & Ors [2002] QSC 21 – cited
Gray v Morris [2004] QCA 5 – applied
Groutco (Aust) Pty Ltd v Thiess Contractors Pty Ltd [1985] 1 Qd R 238 – considered Laurinda Pty Ltd v Capalaba ParkShopping Centre Pty Ltd (1989) 166 CLR 623 – applied
McDonald and Anor v Dennys Lascelles Ltd (1933) 48 CLR 457 – applied
McPhee v Zarb & Ors [2002] QSC 4 – cited

COUNSEL:

R. Cameron for the plaintiff
M.F. Wilson for the defendants

SOLICITORS:

Q5 Law for the plaintiff
Quinn & Scattini Lawyers for the defendants

The Smiths, as trustees of a trust, are the registered proprietors of land in Scarborough. They contracted with Maxicorp for it to construct seven townhouses on the land. Before construction was completed, disputes arose between the Smiths and Maxicorp regarding compliance with the contract. The Smiths sent Maxicorp a letter asserting breaches of contract and requiring Maxicorp to show cause under the agreement. The Smiths did not exercise any further rights which flowed from that notice as, on the same day, Maxicorp referred the dispute to the Commercial and Consumer Tribunal (CCT) for resolution.

After an unsuccessful attempt at mediation, Maxicorp gave notice that it intended to commence proceedings claiming more than $50,000 and no longer consented to the CCT having jurisdiction in relation to the dispute. Maxicorp commenced these proceedings claiming damages and a declaration.

Maxicorp’s damages claim is particularised at para[18] of the Statement of Claim as $139,479.10 for loss of profits and a further unquantified amount…

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 Maxicorp Pty Ltd v. Smith & Anor

Details

AGLC: Maxicorp Pty Ltd v Smith [2007] QDC 114
Case: [2007] QDC 114
Decision Date: 22 June 2007

CaseChat Overview and Summary

In the matter of Maxicorp Pty Ltd v. Smith & Anor, the court was called upon to address a dispute that involved issues of contract, repudiation, equitable mortgages, and the allocation of costs. The plaintiff, Maxicorp Pty Ltd, sought damages from the defendants, Smith and another party, alleging breaches of contract and seeking to enforce an equitable mortgage. The defendants applied for a summary judgment, arguing that the plaintiff had no real prospects of success in their claim and that the case did not require a trial.

The court was tasked with determining whether there were any genuine issues that necessitated a trial and if the defendants were entitled to a summary judgment. Additionally, the court had to examine whether the equitable mortgage survived the termination of the original contract and whether it secured the payment of the damages claimed. The court also needed to decide on the appropriate costs order, considering whether the defendants' application provided sufficient grounds for indemnity costs or if the costs should be awarded on a standard basis.

In its reasoning, the court found that there were indeed genuine issues that required resolution through a trial, hence the application for summary judgment was not appropriate. The court further held that the equitable mortgage created by the contract survived its termination and that it did secure the payment of the damages claimed. Regarding costs, the court determined that the defendants' application did not provide sufficient grounds for indemnity costs, and thus, the costs were awarded on a standard basis.

The court dismissed the defendants' application for summary judgment. The parties were directed to confer regarding the directions for the conduct of the claim, and in the event of failure to reach an agreement, either party could list the matter for directions. Additionally, the defendants were ordered to pay the plaintiff's costs associated with the amended application, as assessed if not agreed upon.

Orders

Orders of the court

The defendants’ application of 23 May 2007, as amended by leave on 4 June 2007, is dismissed.1.

The parties are directed to confer about directions for the conduct of the claim and, failing agreement, either may list the matter before me on two days notice for directions to be made.2.

The defendants must pay the plaintiff’s costs of and incidental to the amended application as assessed if not agreed.3.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Maxicorp Pty Ltd -v- Smith & Smith [2007] QDC 114
PARTIES:	MAXICORP PTY LTD (ACN 108 354 383) Plaintiff V GREGORY DAVID SMITH First Defendant AND MARIA SMITH Second Defendant
FILE NO/S:	1317/07
DIVISION:	Civil
PROCEEDING:	Application for summary judgment and declaration
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	22 June 2007
DELIVERED AT:	District Court, Brisbane
HEARING DATE:	4 June 2007
JUDGE:	Kingham DCJ
ORDER:	The defendants’ application of 23 May 2007, as amended by leave on 4 June 2007, is dismissed.1. The parties are directed to confer about directions for the conduct of the claim and, failing agreement, either may list the matter before me on two days notice for directions to be made.2. The defendants must pay the plaintiff’s costs of and incidental to the amended application as assessed if not agreed.3.
CATCHWORDS:	SUMMARY JUDMENT – Whether no real prospects of succeeding in claim – Whether no need for a trial of the claim – Application refused CONTRACT – REPUDIATION – Alleged breaches – Referral to Commercial and Consumer Tribunal – Whether order sought from tribunal evinces an attention to be no longer bound by the contract EQUITABLE MORTGAGE – Created by contract – Whether survived termination of contract – Whether secures payment of damages claimed COSTS – Indemnity costs – Whether grounds for orders sought – costs awarded on a standard basis Uniform Civil Procedure Rules 1999 (Qld), r293 CSR Limited v Casaron Pty Ltd & Ors [2002] QSC 21 – cited Gray v Morris [2004] QCA 5 – applied Groutco (Aust) Pty Ltd v Thiess Contractors Pty Ltd [1985] 1 Qd R 238 – considered Laurinda Pty Ltd v Capalaba ParkShopping Centre Pty Ltd (1989) 166 CLR 623 – applied McDonald and Anor v Dennys Lascelles Ltd (1933) 48 CLR 457 – applied McPhee v Zarb & Ors [2002] QSC 4 – cited
COUNSEL:	R. Cameron for the plaintiff M.F. Wilson for the defendants
SOLICITORS:	Q5 Law for the plaintiff Quinn & Scattini Lawyers for the defendants