Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd - [2016] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION:

Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd & Anor [2016] QSC 1

PARTIES:

NICHOLS CONSTRUCTIONS PTY LTD
ACN 010 763 505
(plaintiff/respondent)

v

MT MARLOW PTY LTD
ACN 134 480 354
(first defendant/first applicant)

AND

LUTZ BERGER
(second defendant/second applicant)

FILE NO/S:

BS5714/14

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

15 January 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2015

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   Against the first defendant paragraph 15(b) of the amended statement of claim is struck out.

2.   Against both defendants paragraph 26 of the amended statement of claim is struck out.

3.   Paragraphs 2, 3, 8 and 9 of the claim for relief in the amended statement of claim are struck out.

4.   The plaintiff has leave to file a further amended statement of claim.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the respondent entered into a loan agreement with a company – where the second defendant was the sole director and shareholder of the company – where the loan agreement was secured by a mortgage debenture given by the company to the respondent – where the second defendant also gave an irrevocable authority as to the disposition of proceeds of sale of properties being sold by the first defendant – where the company did not repay the loan – where the respondent commenced proceedings alleging breaches of contract by the defendants – where the statement of claim alleges misleading or deceptive conduct in making the irrevocable authority – where damages claimed are measured in the amount as if the proceeds of sale were received – where the applicants apply for summary judgment or alternatively a strikeout of relevant paragraphs in the amended statement of claim – whether summary judgment should be granted – whether the amended statement of claim should be struck out

Uniform Civil Procedure Rules 1999 (Qld), rr 171, 293

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, followed
Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353;
Barnes v Forty Two International Pty Ltd (2014) 316 ALR 408; [2014] FCAFC 152, cited
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, cited
Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, followed
Bond Corporation Pty Ltd & Ors v Thiess Contractors Pty Ltd (1987) 14 FCR 215; (1987) 71 ALR 615, cited
Haggarty v Wood (No 2) [2015] QSC 244, referred to
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23, cited
Jamieson v Westpac Banking Corporation (2014) 98 ACSR 63; [2014] QSC 32, cited
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509, cited
Nichols Construction Pty Ltd v…

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: [2016] QSC 1
Decision Date: 15 January 2016

CaseChat Overview and Summary

Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd involved a legal dispute between the plaintiff, a loan provider, and two defendants, one of whom was the sole director and shareholder of the company that had taken out the loan. The plaintiff alleged breaches of contract and misleading or deceptive conduct by the defendants, claiming damages based on the amount of the loan that was not repaid. The defendants applied for summary judgment or alternatively a strikeout of certain parts of the plaintiff's amended statement of claim, arguing that the claims were legally untenable. The central legal issues revolved around the validity of the claims for summary judgment and the propriety of striking out specific parts of the amended statement of claim.

The court considered the appropriate criteria for granting summary judgment and the circumstances under which parts of a pleading could be struck out. It examined whether the claims were legally untenable and whether the plaintiff had any real prospect of succeeding in the proceedings. The court found that certain allegations in the amended statement of claim were unnecessary and did not support the claims for relief sought by the plaintiff. It concluded that these parts of the pleading could be struck out as they did not contribute to the plaintiff's case. The court also noted that the plaintiff had leave to file a further amended statement of claim to address the deficiencies identified.

In its decision, the court ruled that specific paragraphs of the amended statement of claim were to be struck out, including allegations related to the irrevocable authority given by the second defendant. The court further ordered that certain claims for relief be removed from the statement of claim as they were not substantiated by the allegations. The plaintiff was granted leave to amend the statement of claim to better align with the legal standards and evidence presented. The defendants' application for summary judgment was denied, but the court's orders regarding the strikeout of specific paragraphs and claims for relief effectively narrowed the scope of the plaintiff's claims.

Orders

Orders of the court

The order of the court is that:

1. Against the first defendant paragraph 15(b) of the amended statement of claim is struck out.

2. Against both defendants paragraph 26 of the amended statement of claim is struck out.

3. Paragraphs 2, 3, 8 and 9 of the claim for relief in the amended statement of claim are struck out.

4. The plaintiff has leave to file a further amended statement of claim.

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:	Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd & Anor [2016] QSC 1
PARTIES:	NICHOLS CONSTRUCTIONS PTY LTD ACN 010 763 505 (plaintiff/respondent) v MT MARLOW PTY LTD ACN 134 480 354 (first defendant/first applicant) AND LUTZ BERGER (second defendant/second applicant)
FILE NO/S:	BS5714/14
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	15 January 2016
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2015
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. Against the first defendant paragraph 15(b) of the amended statement of claim is struck out. 2. Against both defendants paragraph 26 of the amended statement of claim is struck out. 3. Paragraphs 2, 3, 8 and 9 of the claim for relief in the amended statement of claim are struck out. 4. The plaintiff has leave to file a further amended statement of claim.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the respondent entered into a loan agreement with a company – where the second defendant was the sole director and shareholder of the company – where the loan agreement was secured by a mortgage debenture given by the company to the respondent – where the second defendant also gave an irrevocable authority as to the disposition of proceeds of sale of properties being sold by the first defendant – where the company did not repay the loan – where the respondent commenced proceedings alleging breaches of contract by the defendants – where the statement of claim alleges misleading or deceptive conduct in making the irrevocable authority – where damages claimed are measured in the amount as if the proceeds of sale were received – where the applicants apply for summary judgment or alternatively a strikeout of relevant paragraphs in the amended statement of claim – whether summary judgment should be granted – whether the amended statement of claim should be struck out Uniform Civil Procedure Rules 1999 (Qld), rr 171, 293 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, followed Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353; Barnes v Forty Two International Pty Ltd (2014) 316 ALR 408; [2014] FCAFC 152, cited Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, cited Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, followed Bond Corporation Pty Ltd & Ors v Thiess Contractors Pty Ltd (1987) 14 FCR 215; (1987) 71 ALR 615, cited Haggarty v Wood (No 2) [2015] QSC 244, referred to Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23, cited Jamieson v Westpac Banking Corporation (2014) 98 ACSR 63; [2014] QSC 32, cited Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509, cited Nichols Construction Pty Ltd v…