DISTRICT COURT OF QUEENSLAND
CITATION: Millhouse IAG Pty Ltd v. Environautics Pty Ltd & Anor [2000] QDC 196 PARTIES: MILLHOUSE IAG PTY LTD (Plaintiff)
v.
ENVIRONAUTICS PTY LTD (Defendant)
&
EM MACTEC PTY LTD (Third Party)FILE NO/S: D439 of 2000 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court Brisbane DELIVERED ON: 7 June 2000 DELIVERED AT: Brisbane HEARING DATE: 30 May 2000 JUDGE: McGill D.C.J. ORDER: OrdOrder that the defence of the third party filed 17 May 2000 be struck out, but with liberty to the third part to replead.
Direct that, unless an amended defence is filed in the registry by midday on 23 June 2000, the defendant may be at liberty to sign judgment in default for:
a declaration that the third party is liable to indemnify the defendant in respect of such amount as the defendant may be found liable to the plaintiff in the proceedings; (a)
an order that the third party pay to the plaintiff the amount found in the proceeding to be the liability of the defendant to the plaintiff, including any liability in respect of costs. (b)
Order that the costs of each party of the application be that party’s costs in the third party proceeding
CATCHWORDS: FRAUD, MISREPRESENTATION and UNDUE INFLUENCE – pleading – content of specific plea of fraud – Uniform Civil Procedure Rules r.150(1)(f)
PRACTICE – pleading – fraud – content of specific plea – whether need to plead facts demonstrating existence of knowledge – Uniform Civil Procedure Rules r.150(1)(f), (k)
PRACTICE – pleading – damages – need for pleading of particulars of claim – whether pleading to be struck out – Uniform Civil Procedure Rules r.155
PRACTICE – application to strike out pleading – letter before application – whether substantial compliance – Uniform Civil Procedure Rules r.144.
Meredith v. Palmcam Pty Ltd & Anor [2000] QCA 113 – applied
McGarrigle v. Miller (1878) 1 SCR NS(NSW) 5 – considered
Middleton v. O’Neill (1943) 43 SR(NSW) 178 – considered
O’Keefe v. Taylor Estates Co Ltd [1916] St.R.Qd 301 – considered
Australian and Commercial Research and Development Ltd v. Commonwealth of Australia [1995] 2 Qd.R. 336 – followedCOUNSEL: D.A. Savage for the defendant
S. Collins (Solicitor) for the third partySOLICITORS: Quinn and Box for the defendant
Clarke and Kann for the third party
This is an application by the defendant to strike out the defence of the third party. The action was commenced by a claim filed on 4 February 2000; a Notice of Intention to Defend was filed by the defendant on 13 March 2000, and a third party notice issued on 29 March 2000. A Notice of Intention to Defend attaching a defence on behalf of the third party was filed on 4 May 2000. This application was filed on 17 May 2000.
Preliminary Point : R.444 Letter
This rule requires that before making an application of the kind listed in r.443, the applicant must write to the respondent specifying the following matters –
(a) the applicant’s…
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- Case
- [2000] QDC 196
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the defendant's defence adequately pleaded the elements of fraud and misrepresentation, including whether the defendant needed to plead facts demonstrating the existence of knowledge. The court also considered whether the pleading of damages required particulars of claim and if the pleading should be struck out. Furthermore, the court examined if the letter before the application substantially complied with the rules.
The court found that the defendant's defence did not sufficiently plead the elements of fraud and misrepresentation, particularly the knowledge component. The court held that particulars of claim were necessary for the pleading of damages. The letter before the application did not substantially comply with the rules. Consequently, the court ordered that the defence be struck out but granted the defendant liberty to replead. If an amended defence was not filed by a specified date, the defendant could face default judgment in favour of the plaintiff.
The court ordered that the defence of the third party be struck out but allowed the third party to replead. The court directed that unless an amended defence was filed by midday on 23 June 2000, the defendant could be at liberty to sign judgment in default. This judgment would declare the third party liable to indemnify the defendant for any amount the defendant might be found liable to the plaintiff. Additionally, the court ordered that the third party pay the plaintiff the amount found to be the defendant's liability, including any liability in respect of costs. The costs of each party of the application were to be that party's costs in the third party proceeding.
Orders
Orders of the court
OrdOrder that the defence of the third party filed 17 May 2000 be struck out, but with liberty to the third part to replead.
Direct that, unless an amended defence is filed in the registry by midday on 23 June 2000, the defendant may be at liberty to sign judgment in default for:
a declaration that the third party is liable to indemnify the defendant in respect of such amount as the defendant may be found liable to the plaintiff in the proceedings; (a)
an order that the third party pay to the plaintiff the amount found in the proceeding to be the liability of the defendant to the plaintiff, including any liability in respect of costs. (b)
Order that the costs of each party of the application be that party’s costs in the third party proceeding
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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