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Nguyen v QTQ Mechanical Services Pty Ltd

Nguyen v QTQ Mechanical Services Pty Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v QTQ Mechanical Services Pty Ltd [2019] NSWSC 1629
Hearing dates: 4 November 2019
Decision date: 04 November 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Strike out the statement of claim filed 21 May 2019.
2. Refer the plaintiff to the Registrar for referral for pro bono assistance for a limited purpose pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).
3.   Stand the balance of the notice of motion over for a period of time in order for the referral to take place.
4.   Order that the costs of the defendant’s notice of motion today be borne by the plaintiff on the ordinary basis.

Catchwords: CIVIL PROCEDURE — Pleadings — Striking out —No reasonable cause of action or defence – application by defendants for proceedings to be dismissed or the plaintiff’s statement of claim to be struck out – rr 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – held that the statement of claim as presently pleaded does not disclose a tenable cause of action – statement of claim struck out – order made for referral of the plaintiff to pro bono assistance.
Legislation Cited: Corporations Act 2001 (Cth), ss 237, 247A and Pt 2F.1
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 13.4, 14.28
Cases Cited: ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26
Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023; (2016) 336 ALR 209
Burland v Earle [1902] AC 83
Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94
Cameron v Qantas Airways Ltd [2010] NSWSC 899
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Dickson v Federal Commissioner of Australia Federal Police [2019] NSWSC 1293
Ea v Diaconu [2019] NSWSC 795
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Hastie Group Ltd (in liq) v Bourne; Hastie Group Ltd (in liq) v Moore [2017] NSWSC 709
HFPS Pty Limited (Trustee) v Tamaya Resources Limited (in Liq) (No 2) [2016] FCA 446
Horton v Jones (No 2) (1939) 39 SR (NSW) 305
In the matter of Hollen Australia Pty Ltd [2009] VSC 95
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 2) [2019] NSWSC 1492
McGuirk v The University of New South Wales [2009] NSWSC 1424
Picone v Velos [2007] FCA 1183
QBE Insurance Group Ltd v Australian Securities Commission (1992) 38 FCR 270
Re Continental Assurance Co of London plc (in liquidation); Singer v Beckett [2007] 2 BCLC 287
Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320
S1 v The Trustees of Marist Brothers [2016] NSWSC 970
Sgro v Australian Associated Motor Insurers Ltd…

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: [2019] NSWSC 1629
Decision Date: 04 November 2019

CaseChat Overview and Summary

The plaintiff, Nguyen, commenced proceedings against the defendant, QTQ Mechanical Services Pty Ltd, in the Local Court of New South Wales, seeking damages for breach of contract and negligence arising from alleged faulty installation of air conditioning units. The defendant sought to have the plaintiff's statement of claim struck out on the grounds that it disclosed no reasonable cause of action or defence. The court was required to determine whether the statement of claim was sufficient to warrant proceeding to trial or if it was so deficient that it should be dismissed under the relevant rules of the Uniform Civil Procedure Rules 2005 (NSW).

The court considered the requirements for a statement of claim to disclose a reasonable cause of action, particularly in light of the relevant rules. The court held that the statement of claim, as currently drafted, did not sufficiently detail the specific terms of the contract or the nature of the alleged breach and negligence. The court found that the plaintiff's claims were vague and lacked the necessary particulars to make out a tenable cause of action. Consequently, the court ruled that the statement of claim did not meet the threshold for proceeding to trial and ordered it be struck out. In addition, the court made an order for the plaintiff to be referred to pro bono assistance to aid in the preparation of a revised statement of claim.

In summary, the court dismissed the defendant's application for the proceedings to be dismissed outright but found that the plaintiff's statement of claim did not disclose a reasonable cause of action. The statement of claim was struck out, and the plaintiff was referred to pro bono assistance.

Orders