Millhouse IAG Pty Ltd v Environautics Pty Ltd - [2000] QDC 196

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 – followed

COUNSEL: D.A. Savage for the defendant
S. Collins (Solicitor) for the third party

SOLICITORS: 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…

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.

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Details

Case: [2000] QDC 196
Decision Date: 7 June 2000

CaseChat Overview and Summary

Millhouse IAG Pty Ltd, a plaintiff, sought to recover damages against Environautics Pty Ltd, the defendant, on claims of fraud, misrepresentation, and undue influence. The dispute was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant, through its director, engaged in fraudulent activities, misrepresentations, and undue influence, leading to financial losses. The defendant filed a defence, which the plaintiff sought to have struck out for failing to comply with specific requirements under the Uniform Civil Procedure Rules.

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

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:	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 – followed
COUNSEL:	D.A. Savage for the defendant S. Collins (Solicitor) for the third party
SOLICITORS:	Quinn and Box for the defendant Clarke and Kann for the third party