Mbuzi v Collection House Limited - [2005] QDC 313

[2005] QDC 313

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3412 of 2005

JOSIYAS MBUZI	Plaintiff
and
COLLECTION HOUSE LIMITED (ACN 010 230 716)	Defendant

BRISBANE

..DATE 10/10/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules rr 78, 135, 157, 171, 374(4)(c), 444 - plaintiff seeks $250,000 compensatory damages against collections in purported reliance on a challenged hire purchase agreement - Defendant applies for striking out of embarrassing statement of claim on last day for filing notice of intention to defend and defence - whether filing of the notice was a condition of jurisdiction - alternative relief by way of particulars to render statement of claim intelligible - proceeding consolidated with claim by the purported owner against the plaintiff and his wife, in which they cross-claimed for damages for conduct ostensibly by the defendant

HIS HONOUR: This is an application by the defendant for the striking out of the plaintiff's statement of claim under rule 171(1) of the Uniform Civil Procedure Rules.

It seeks other relief, in particular, particulars "in accordance with rule 157", and an extension of time for filing and serving of a notice of intention to defend and defence. It also seeks consolidation of the proceeding with that in file number BD2509 of 2005 which is a Supreme Court action brought against the plaintiff, Mr Mbuzi, by St George Bank Limited.

The application of the defendant, insofar as it seeks orders for particulars and directions, asks for non-compliance with rule 444 to be excused pursuant to rule 371. I think the application is correctly framed in that the principal relief sought is under rule 171 which does not require a rule 444 letter. It would be obvious that the applicant might well be left with second prize in the form of directions and orders for particulars.

Today is the last day for filing of a notice of intention to defend and defence and Mr Mbuzi hasn't disguised his intention to seek default judgment if those documents are not filed. He raises technical objections to the application's being entertained. The first relates to service of the application which advises that on the hearing of it the applicant intends to rely on the affidavit of Russell Thurgood on last Wednesday day night without any such affidavit. In the end, no such affidavit has been used - the anticipated purpose of it of placing correspondence before the Court being achieved by use of an affidavit of another deponent who had the benefit of some conversation with Mr Mbuzi.

Mr Doxey's affidavit of service which is the only evidence on the point, as opposed to Mr Mzubi's assertion of the date of service, says it was last Tuesday that the application was filed. I think in the circumstances, the Court ought to proceed on the basis of the evidence in Mr Doxey's affidavit rather than Mr Mbuzi's assertion. Even on the basis of that, he has had the week-end and two business days. I can't see, in the circumstances, that the absence…

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.

Keep reading for free

Create a free CaseChat account to read Mbuzi v Collection House Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] QDC 313
Decision Date: 10/10/2005

CaseChat Overview and Summary

In the case of Mbuzi v Collection House Limited, the plaintiff, Josiyas Mbuzi, sought $250,000 in compensatory damages against the defendant, Collection House Limited, on the basis of a challenged hire purchase agreement. The defendant filed an application for striking out the plaintiff's statement of claim, seeking particulars to render it intelligible, and an extension of time for filing a notice of intention to defend and defence. The defendant also sought consolidation of the proceeding with a claim by the purported owner against the plaintiff and his wife. The primary legal issue before the court was whether the defendant's application for striking out the statement of claim should be granted, or whether the court should instead order particulars to be provided by the plaintiff. Additionally, the court had to consider whether the proceedings should be consolidated with the other claim.

The court found that the plaintiff's statement of claim was indeed highly embarrassing, and the defendant's application to have it struck out could be seen as strong. However, the court believed that the important thing was to advance the litigation and alleviate the plaintiff's concerns that the defendant was seeking to frustrate and delay him. The court decided to order the plaintiff to amend the statement of claim or provide particulars to address the deficiencies in the pleadings, such as specifying the dates, addresses, and individuals involved in the alleged trespass, and providing details of the compensatory damages sought. The court also ordered consolidation of the proceeding with the other claim, as there was an overlap between the two cases, and both involved determining the validity of a hire purchase agreement between the plaintiff and the bank.

The court reserved costs and ordered the action to be stayed until the requirements of the court's order in relation to the statement of claim had been complied with. The court also granted liberty to apply for further orders if necessary.

Orders