Meredith v Rocke

[2010] QDC 120

[2010] QDC 120

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 89 of 2010

DALE MEREDITH	Applicant
and
BETTY ROCKE AND PETER ROCKE	Respondents

SOUTHPORT

..DATE 26/02/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 468

Interlocutory injunction to preserve a veteran motor vehicle which plaintiff claimed (supported by a signed "contract") to have purhcased from the male respondent - it subsequently emerged the vehicle belonged to respondent's deceased father and was left by will to his under (the female respondent) she disavowed any intention to sell - injunction continued - undertaking as to damages (offered but not recorded for the existing interim injunction) incorporated in the order

HIS HONOUR:  There has been a certain amount of agreement between the parties as to what ought to happen this afternoon.  A week ago Judge McGinness proceeding ex parte restrained the respondents from dealing with a veteran motor vehicle, a 1941 Willys Coupe; that was obviously seen as an interim injunction, the application being adjourned until this afternoon for the unexpressed but obvious purpose of determining whether the injunction ought to be extended.

Although the plaintiff, Mr Meredith, had offered an undertaking as to damages in his affidavit, through some inadvertence the undertaking was not recorded in the order.  It is offered again by Mr Muller this afternoon and obviously should be recorded in the order for the protection of the respondents - they are represented by Mr Webb this afternoon.

There has been some criticism of them for not proceeding expeditiously in relation to the order obtained from Judge McGinness.  The suggestion is that they might have been in a position to start progressing the matter as early as last Friday (that is, a week ago), when some contact was said to be made with the solicitors rather than only last Wednesday, which is the date when Mr Webb indicated he started work.

Judge McGinness must have been persuaded of the urgency of the matter, also that it ought to have proceeded on the basis of pleadings.  She ordered that a statement of claim be filed within seven days.  That was done.

She also ordered that a notice of intention to defend and defence be filed and served within 14 days, which probably means 14 days from the seventh, but may not.

The vehicle in question belonged to the father of the respondent, Peter Rocke, and husband of the respondent, Betty Rocke.  He passed away on the 20th of August 2009.  Among his effects was the motor vehicle.

An advertisement to the effect that it was for sale attracted the plaintiff's interest.  He attended the premises he was directed to when he followed up the advertisement.  The upshot was a contract of sale of the vehicle for $50,000 on $1,000 deposit, which was paid.  On the evidence, Peter Rocke signed a memorandum establishing the sale.

When the time came to make arrangements to pick up the vehicle, Mr Meredith apprehended problems.  There was a mention of other potential buyers offering more and the like.  There was also a mention of the need at some cost to get the vehicle registered in the name of Betty Rocke who would then transfer it to Mr Meredith.

We now have an affidavit from her which exhibits the will of the deceased.  It appoints Mrs Rocke executor and for relevant purposes leaves everything, including the vehicle, to her.  She deposes that she never authorised sale of the vehicle, expressly or impliedly, that she never by any means got involved in any contract with Mr Meredith.

The assertions thus made change the situation from the point of view of Mr Meredith.  Mr Muller accepts that it is going to be necessary to amend the claim and statement of claim.

...

This may be amended to bring in a claim for breach of warranty of authority, for example.  The new affidavit deposes that there is no intention of selling the vehicle, that the deponent wishes to retain it for sentimental reasons.  Mr Webb accepts that in those circumstances there is no real point in opposing continuance of the injunction.  It is not going to cause any inconvenience.

He indicates preparedness in a general sense to have this matter proceed hastily to resolution.  It seems to involve fairly simple issues.  It is unlikely to involve significant discovery, et cetera.  Yet, Mr Webb is not inclined to consent to abridgement of times.

Notwithstanding Mr Muller's submissions, I am not persuaded that that ought to be done.  Given that both sides express an interest in getting the matter resolved quickly, which will certainly limit the exposure of both sides to costs, I am prepared under Rule 468(2) to certify the matter for speedy trial, which gives a useful indication from the Court of its view.

I understood Mr Muller to apply for costs, in part, at least, on the basis that he had to prepare for a fight today, only to find that that was not the case.  I am disinclined to do anything with costs, other than to reserve them.

It remains to be seen whether the circumstances were really as straightforward as Mr Meredith's affidavit suggests and, further, Mrs Rocke's affidavit describes a certain unpleasantness as arising in contacts involving the parties.  I think it would exacerbate the circumstances in an unfortunate way were the Court to make an order that required payment of costs one way or the other at this juncture.

...

On the plaintiff/applicant giving the usual undertaking to damages:

1.Extend the operation of paragraph 1 of the order of the 19th of February 2010 until further order.

2.Grant leave to the plaintiff/applicant to file an amended claim and statement of claim by the 1st of March 2010.

3.Certify for speedy trial.

4.Extend the time fixed under that order for notice of intention to defend and defence to that allowed under the rules.

5.Liberty to apply

Costs reserved.