Morais v. Mills
[2009] QDC 251
•24 June 2009
[2009] QDC 251
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1308 of 2009
| EDWARD MORAIS and VIRGINIA MORAIS | Plaintiff |
| and | |
| JAMES MILLS | Defendant |
BRISBANE
..DATE 24/06/2009
ORDER
CATCHWORDS: In plaintiffs' claim for moneys owing (for rent, storage etc). Consent order on defendant's application for return by plaintiffs of some items of personal property of his - no need for separate claim in detinue or counter-claim.
HIS HONOUR: By consent of the parties, the Court orders as follows:
The plaintiffs deliver up to the defendant items of personal property as identified in paragraph 24 of the affidavit of J R Mills filed the 18th of June, 2009. 1C, 1D, 1E, 1L, 2G, 2K and 2R, on a date to be agreed by the parties, otherwise 12 noon on Saturday, 27 June, 2009, at 12 Front Court, Marsden. Removal to be at the defendant's cost.
The defendant file and serve its defence and counter-claim no later than Tuesday, 30 June, 2009.
The matter be referred to mediation to occur within 30 days of the close of pleadings (in default of agreement otherwise), for the purposes of which:
(i) the defendant will propose a list of three mediators, one of which is to be the Dispute Resolution Service under the aegis of the Attorney General for the purposes of the plaintiff selecting one;
(ii) the mediator's fee will be paid by the plaintiffs and the defendant in equal shares, that is half each, in the first sense.
Costs reserved.
Liberty to apply.
...
The Court congratulates the parties on reaching this resolution, the context is an unfortunate one, in which the erstwhile romantic interest in each other of the plaintiff's daughter and the defendant has come to an end unhappily, with the defendant vacating the premises where they formerly resided.
The plaintiffs make financial claims against him in respect of his use of that property, and other matters such as monies advanced for various purposes on his behalf.
The original statement of claim, although now shorn of it, contained the following in paragraph 6: "On vacating the plaintiff's Marsden property referred to in paragraph 2 hereof, in which the defendant had resided, the defendant left certain furniture, chattels and effects in the Marsden property which the defendant had used while residing in the said property, which the plaintiffs have stored since then and retained as security for the monies which the defendant owes the plaintiffs. He now refuses to pay the plaintiffs."
It is in the circumstances thus described that the defendant filed his application returnable before the Court today on the 18th of June, 2009, which happens to have been the date of filing of the amended statement of claim.
The defendant is making a claim in detinue, in effect, which in my experience, at least, is unusual to encounter in a proceeding which hasn't otherwise gone beyond the stage of claim and statement of claim.
One would ordinarily expect such relief to be sought by counter-claim if not in a separate proceeding, the latter of which courses would involve the parties in the expense they can probably ill afford.
The plaintiffs have taken no point of a procedural nature, doubtless accepting the reality that at some stage they would have to face Mr Mills' claim.
In the interim, the return of some of the contentious items has been agreed upon. One of the items is not the property of Mr Mills but rather his Great-Grandmother's engagement ring. I daresay that having gotten into possession of it through the claimant who asserts title, namely his mother, he would be in a position to pursue a detinue-type claim, as against the plaintiffs. The ring is not among the items described in the Court's order.
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