Mohareb v Lambert and Rehbein (SEQ) Pty Ltd - [2009] QSC 324

SUPREME COURT OF QUEENSLAND

CITATION:

Mohareb v Lambert & Rehbein (SEQ) Pty Ltd & Ors [2009] QSC 324

PARTIES:

NADER MOHAREB
(plaintiff/respondent)
v
LAMBERT & REHBEIN (SEQ) PTY LTD ACN 126 939 768
(first defendant/applicant)
ASHLEY PETER RUFFIN
(second defendant/applicant)
STEVE ALAN WILLIAMS
(third defendant/applicant)
BRENT FRANCIS WOOLGAR

(fourth defendant/applicant)

FILE NO/S:

BS 4544 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

7 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2009

JUDGE:

White J

ORDER:

1.         The plaintiff’s Further Amended Statement of Claim amended pursuant to the order of Daubney J of 16 June 2009 and varied by the order of White J on 9 July 2009 filed on 28 July 2009 be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld).

2.         The plaintiff have leave to file and serve a Second Further Amended Statement of Claim on or before 4.00pm on 28 October 2009.

3.         In default of compliance with paragraph 2 the plaintiff’s proceedings be stayed.

4.         The plaintiff’s claim in contract against the second, third and fourth defendants be permanently stayed.

5.         The plaintiff to pay the defendants’ costs of and incidental to the application on the indemnity basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – whether the plaintiff’s Further Amended Statement of Claim should be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149, r 150, r 152, r 157, r 162, r 171

Bruce v Odhams Press Ltd [1936] 1 KB 697
Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559

Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209

COUNSEL:

No appearance for the plaintiff/respondent

JW Merrell for the defendants/applicants

SOLICITORS:

No appearance for the plaintiff/respondent

Courtice Neilsen for the defendants/applicants

By application filed 26 August 2009 the defendants seek orders that the plaintiff’s Further Amended Statement of Claim filed 28 July 2009 be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”); that the plaintiff’s claims against the second, third and fourth defendants be permanently stayed; that if the plaintiff fails to file and serve a Second Further Amended Statement of Claim against the first defendant within seven days the plaintiff’s claims against the first defendant be permanently stayed; and other ancillary orders.

The first defendant is a company which carries on the business of engineers. The plaintiff was employed by the first defendant from 15 September 2008 as a Senior Structural Engineer in its Brisbane office. His employment was terminated on 5 November 2008. The employment agreement was in writing and executed on 17 July 2008.

On 16 June 2009 Daubney J struck out the plaintiff’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: [2009] QSC 324
Decision Date: 7 October 2009

CaseChat Overview and Summary

The matter of Mohareb v Lambert and Rehbein (SEQ) Pty Ltd was considered by the Supreme Court of Queensland. The plaintiff, Mohareb, sought to pursue claims against several defendants, including Lambert and Rehbein (SEQ) Pty Ltd. The primary issue before the court was whether the plaintiff's Further Amended Statement of Claim should be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld). The defendants argued that the plaintiff's pleading was fundamentally deficient and did not comply with the requirements of the rules.

The court examined the nature and content of the plaintiff's Further Amended Statement of Claim, assessing whether it disclosed a reasonable cause of action. It considered the amendments made to the pleading and the directions provided by earlier orders of the court. The court noted the deficiencies in the pleading, including lack of particularity and non-compliance with the directions provided. Based on these factors, the court determined that the plaintiff's Further Amended Statement of Claim did not meet the necessary standards and should be struck out.

The court granted the defendants' application to strike out the Further Amended Statement of Claim, ordered that it be amended and varied in accordance with earlier orders, and allowed the plaintiff leave to file a Second Further Amended Statement of Claim by a specified date. The court also stayed the plaintiff's claim against certain defendants permanently and ordered the plaintiff to pay the defendants' costs on an indemnity basis. Failure to comply with the orders would result in the plaintiff's proceedings being stayed.

Orders

Orders of the court

1. The plaintiff’s Further Amended Statement of Claim amended pursuant to the order of Daubney J of 16 June 2009 and varied by the order of White J on 9 July 2009 filed on 28 July 2009 be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld).

2. The plaintiff have leave to file and serve a Second Further Amended Statement of Claim on or before 4.00pm on 28 October 2009.

3. In default of compliance with paragraph 2 the plaintiff’s proceedings be stayed.

4. The plaintiff’s claim in contract against the second, third and fourth defendants be permanently stayed.

5. The plaintiff to pay the defendants’ costs of and incidental to the application on the indemnity basis.

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:	Mohareb v Lambert & Rehbein (SEQ) Pty Ltd & Ors [2009] QSC 324
PARTIES:	NADER MOHAREB (plaintiff/respondent) v LAMBERT & REHBEIN (SEQ) PTY LTD ACN 126 939 768 (first defendant/applicant) ASHLEY PETER RUFFIN (second defendant/applicant) STEVE ALAN WILLIAMS (third defendant/applicant) BRENT FRANCIS WOOLGAR (fourth defendant/applicant)
FILE NO/S:	BS 4544 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	7 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2009
JUDGE:	White J
ORDER:	1. The plaintiff’s Further Amended Statement of Claim amended pursuant to the order of Daubney J of 16 June 2009 and varied by the order of White J on 9 July 2009 filed on 28 July 2009 be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld). 2. The plaintiff have leave to file and serve a Second Further Amended Statement of Claim on or before 4.00pm on 28 October 2009. 3. In default of compliance with paragraph 2 the plaintiff’s proceedings be stayed. 4. The plaintiff’s claim in contract against the second, third and fourth defendants be permanently stayed. 5. The plaintiff to pay the defendants’ costs of and incidental to the application on the indemnity basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – whether the plaintiff’s Further Amended Statement of Claim should be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149, r 150, r 152, r 157, r 162, r 171 Bruce v Odhams Press Ltd [1936] 1 KB 697 Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559 Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209
COUNSEL:	No appearance for the plaintiff/respondent JW Merrell for the defendants/applicants
SOLICITORS:	No appearance for the plaintiff/respondent Courtice Neilsen for the defendants/applicants