Midgley v Weeks - [2015] TASSC 43

[2015] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Midgley v Weeks [2015] TASSC 43

PARTIES:  MIDGLEY, Damian James
  RADFORD, Lanika Lee
  v
  WEEKS, Baden John
  WEEKS, Sharon Narelle

J COLLINS & SON PTY LTD trading as Collins Realty
BROTHERS, David William trading as Doolan & Brothers (a firm)

FILE NO: 886/2014

DELIVERED ON:  8 September 2015
DELIVERED AT:  Hobart
HEARING DATE:  31 August 2015
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Pleadings – Generally – Striking out – Failure to disclose a reasonable cause of action.
Supreme Court Rules 2000 (Tas), r259.
Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
           Plaintiffs:  T Cox
           Third defendant:                B McTaggart SC
Solicitors:
           Plaintiffs:  Fairley + Associates
           Third defendant:                Wotton + Kearney

Judgment Number: [2015] TASSC 43
Number of paragraphs: 22

Serial No 43/2015
File No 886/2014

DAMIAN JAMES MIDGLEY and LANIKA LEE RADFORD v
BADEN JOHN WEEKS, SHARON NARELLE WEEKS,
J COLLINS & SON REALTY PTY LTD trading as COLLINS REALTY and
DAVID WILLIAM BROTHERS trading as DOOLAN & BROTHERS (A FIRM)

REASONS FOR JUDGMENT Holt AsJ
8 September 2015

On 10 October 2014 the plaintiffs issued a writ against several defendants in respect of the purchase by them of real estate at Spreyton in Tasmania. The vendors were named as first and second defendants. The vendors' real estate agent was named as third defendant. The plaintiffs' firm of solicitors in the conveyancing transaction was named as fourth defendant. The Council for the municipal area in which the real estate is situated was named as fifth defendant. The writ is endorsed with a claim for damages against the first three defendants for negligence, breach of contract and breach of statutory duty. It is endorsed with a claim for damages against the fourth defendant for negligence and breach of contract. The proceedings have since been discontinued against the fifth defendant.
The plaintiffs filed their statement of claim on 15 May 2015 and the third defendant, being the real estate company, has applied for an order striking out those paragraphs in the statement of claim (pars 9 – 16) which are specific to the claim against the third defendant.
The statement of claim includes the following allegations:
·On 30 October 2008 the plaintiffs entered into a contract for the purchase of land containing a dwelling at Spreyton for a purchase price of $158,000. (Paragraph 4)
·The contract contained implied terms that the dwelling was "capable of lawful occupation by the plaintiffs" and that the dwelling was "fit for the purpose of occupation by the plaintiffs" and an express term that at the date of the contract "there are no restrictions on the use of the property that may hinder or prevent the plaintiffs from using the property for the purpose of a residential dwelling". (Paragraph 5)
·The contract settled with the transfer of the real estate to the plaintiffs. (Paragraph 6)
·The dwelling was a converted…

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 Midgley v Weeks

Details

AGLC: Midgley v Weeks [2015] TASSC 43
Case: [2015] TASSC 43
Decision Date: 8 September 2015

CaseChat Overview and Summary

Midgley v Weeks was a case heard by the Supreme Court of Tasmania, which involved a dispute between the plaintiff, Midgley, and the defendant, Weeks. The plaintiff sought to recover damages for alleged breaches of contract and negligence. The defendant argued that the plaintiff's claim was without merit and sought to have the proceedings dismissed for failure to disclose a reasonable cause of action.

The legal issue before the court was whether the plaintiff's statement of claim disclosed a reasonable cause of action. The court had to consider whether the plaintiff had provided sufficient particulars in their statement of claim to establish a valid claim against the defendant. The defendant argued that the plaintiff had failed to provide adequate detail about the alleged breaches of contract and negligence, and that the claim should therefore be struck out.

The court found that the plaintiff's statement of claim was insufficient in that it failed to provide adequate detail about the alleged breaches of contract and negligence. The court held that the plaintiff had not disclosed a reasonable cause of action, and that the claim should be struck out. The court found that the plaintiff's statement of claim did not provide sufficient particulars to establish a valid claim against the defendant, and that the claim was therefore without merit.

The court ordered that the proceedings be dismissed and that the plaintiff pay the defendant's costs of the action. The court held that the plaintiff had failed to provide adequate detail about the alleged breaches of contract and negligence, and that the claim should therefore be dismissed. The court found that the plaintiff's statement of claim was insufficient in that it failed to provide adequate detail about the alleged breaches of contract and negligence, and that the claim should therefore be struck out.

Orders