Miller v Loel - [2016] QSC 135

SUPREME COURT OF QUEENSLAND

CITATION:

Miller & Anor v Loel & Anor [2016] QSC 135

PARTIES:

PETER JOHN FRANCIS MILLER

(first plaintiff)
SUSAN MARY MILLER
(second plaintiff)

v
JAMES BERESFORD LOEL
(first defendant)
PAUL BERNARD MAHAN
(second defendant)

FILE NO:

BS989 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for summary judgment

DELIVERED ON:

15 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2016

JUDGE:

Mullins J

ORDER:

1. The application by the first defendant for summary judgment is dismissed.

2. The application by the second defendant for summary judgment is adjourned to a date to be fixed.

3. Paragraphs 20, 25, 50(d), 50(e), 50(j), 51(z), 51(aa), 51(bb), 51(dd), 55(d)(vi), and 57 to 68 of the amended statement of claim filed on 2 March 2016 are struck out with no liberty to re-plead those allegations.

4. Paragraphs 54 and 69C (including the particulars) together with the claim for relief against the first defendant for damages on an indemnity basis in respect of abuse of process is struck out with no liberty to re-plead those allegations.

5. Any further amended statement of claim is to be filed and served by the plaintiffs on or before 1 July 2016.

6. The question of the costs of application filed on 23 May 2016 is adjourned to a date to be fixed.

7. Liberty to either party to apply on two days’ notice in writing to the other party.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALING – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE – where a company lodged a caveat over the land registered in the name of a joint venture party where the joint venture parties were in dispute – where litigation in respect of that dispute was determined by the court and the caveat removed – where the plaintiffs claim to have suffered loss as a result of the caveat – where the plaintiffs seek to recover that loss against the solicitor who acted for the caveator and a director of the caveator – whether it is arguable that the solicitor and/or the director is a person who lodged or continued a caveat under s 130 of the Land Title Act 1994 (Qld)

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the defendants apply to strike out paragraphs of the plaintiffs’ claim – whether paragraphs of the claim are unnecessary or irrelevant

Land Title Act 1994 (Qld), s 130
Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293

Re Brooks’ Caveat [2014] QSC 76, considered
Devren Pty Ltd v Old Coach Developments Pty Ltd [2015] QSC 53, related
Farvet Pty Ltd v Frost [1997] 2 Qd R 39, considered
Gordon v Treadwell Stacey Smith (1997) ANZ ConvR 68, considered
White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 29 ACSR 21; [1998] FCA 806, considered

COUNSEL:

The first…

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 Miller v Loel

Details

AGLC: Miller v Loel [2016] QSC 135
Case: [2016] QSC 135
Decision Date: 15 June 2016

CaseChat Overview and Summary

The plaintiffs brought an action against two defendants, one of whom was a director of the company who lodged a caveat over the land registered in the name of a joint venture party, and the other, a solicitor who acted for the company. The plaintiffs claimed to have suffered loss due to the lodging of the caveat and sought to recover that loss against the solicitor and the director. The defendants applied to strike out certain paragraphs of the plaintiffs’ amended statement of claim and for summary judgment. The case was heard in the Supreme Court of Queensland.

The primary legal issues were whether it was arguable that the solicitor and/or the director is a person who lodged or continued a caveat under section 130 of the Land Title Act 1994 (Qld) and whether certain paragraphs of the amended statement of claim were unnecessary or irrelevant. The court had to decide whether the claims against the defendants were valid and whether the allegations were relevant to the action.

The court dismissed the application for summary judgment by the first defendant but adjourned the application by the second defendant. The court found that paragraphs 20, 25, 50(d), 50(e), 50(j), 51(z), 51(aa), 51(bb), 51(dd), 55(d)(vi), and 57 to 68 of the amended statement of claim were unnecessary or irrelevant and struck them out with no liberty to re-plead. The court also struck out paragraphs 54 and 69C together with the claim for relief against the first defendant for damages on an indemnity basis in respect of abuse of process. The court ordered that any further amended statement of claim be filed and served by the plaintiffs by 1 July 2016.

The court adjourned the question of the costs of the application filed on 23 May 2016 and granted liberty to either party to apply on two days’ notice in writing to the other party.

Orders

Orders of the court

1. The application by the first defendant for summary judgment is dismissed.

2. The application by the second defendant for summary judgment is adjourned to a date to be fixed.

3. Paragraphs 20, 25, 50(d), 50(e), 50(j), 51(z), 51(aa), 51(bb), 51(dd), 55(d)(vi), and 57 to 68 of the amended statement of claim filed on 2 March 2016 are struck out with no liberty to re-plead those allegations.

4. Paragraphs 54 and 69C (including the particulars) together with the claim for relief against the first defendant for damages on an indemnity basis in respect of abuse of process is struck out with no liberty to re-plead those allegations.

5. Any further amended statement of claim is to be filed and served by the plaintiffs on or before 1 July 2016.

6. The question of the costs of application filed on 23 May 2016 is adjourned to a date to be fixed.

7. Liberty to either party to apply on two days’ notice in writing to the other party.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Miller & Anor v Loel & Anor [2016] QSC 135
PARTIES:	PETER JOHN FRANCIS MILLER (first plaintiff) SUSAN MARY MILLER (second plaintiff) v JAMES BERESFORD LOEL (first defendant) PAUL BERNARD MAHAN (second defendant)
FILE NO:	BS989 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application for summary judgment
DELIVERED ON:	15 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2016
JUDGE:	Mullins J
ORDER:	1. The application by the first defendant for summary judgment is dismissed. 2. The application by the second defendant for summary judgment is adjourned to a date to be fixed. 3. Paragraphs 20, 25, 50(d), 50(e), 50(j), 51(z), 51(aa), 51(bb), 51(dd), 55(d)(vi), and 57 to 68 of the amended statement of claim filed on 2 March 2016 are struck out with no liberty to re-plead those allegations. 4. Paragraphs 54 and 69C (including the particulars) together with the claim for relief against the first defendant for damages on an indemnity basis in respect of abuse of process is struck out with no liberty to re-plead those allegations. 5. Any further amended statement of claim is to be filed and served by the plaintiffs on or before 1 July 2016. 6. The question of the costs of application filed on 23 May 2016 is adjourned to a date to be fixed. 7. Liberty to either party to apply on two days’ notice in writing to the other party.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALING – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE – where a company lodged a caveat over the land registered in the name of a joint venture party where the joint venture parties were in dispute – where litigation in respect of that dispute was determined by the court and the caveat removed – where the plaintiffs claim to have suffered loss as a result of the caveat – where the plaintiffs seek to recover that loss against the solicitor who acted for the caveator and a director of the caveator – whether it is arguable that the solicitor and/or the director is a person who lodged or continued a caveat under s 130 of the Land Title Act 1994 (Qld) PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the defendants apply to strike out paragraphs of the plaintiffs’ claim – whether paragraphs of the claim are unnecessary or irrelevant Land Title Act 1994 (Qld), s 130 Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293 Re Brooks’ Caveat [2014] QSC 76, considered Devren Pty Ltd v Old Coach Developments Pty Ltd [2015] QSC 53, related Farvet Pty Ltd v Frost [1997] 2 Qd R 39, considered Gordon v Treadwell Stacey Smith (1997) ANZ ConvR 68, considered White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 29 ACSR 21; [1998] FCA 806, considered
COUNSEL:	The first…