Noosa Retail Pty Ltd v. Ritter - [2008] QDC 258

DISTRICT COURT OF QUEENSLAND

CITATION:	Noosa Retail v Ritter [2008] QDC 258
PARTIES:	Noosa Retail Pty Ltd Trading As Michael Ridley Basics (ACN 093 089 939) (Plaintiff) And Barry Ritter (Defendant)
FILE NOS:	515/06
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	31.10.2008
DELIVERED AT:	Maroochydore
HEARING DATE:	17.10.08
JUDGE:	Judge J.M. Robertson
ORDER:	Application for further disclosure (filed by Plaintiff 19.9.08) dismissed. In relation to that application, I order the Plaintiff to pay the Defendant’s costs of and incidental to the disclosure application to be assessed on the standard basis, or agreed, but limited to his costs of and incidental to the hearing on the 17^th October 2008. The application for declarations and other orders filed by the plaintiff on the 23^rd September 2008 is dismissed, and I order the Plaintiff to pay the Defendant’s costs of and incidental to that application as assessed on the standard basis, or agreed. Application for security for costs (filed by Defendant 23.9.08): I order as follows: 1. Within 14 days of the date of this order, the plaintiff give security for any costs awarded to be paid by the plaintiff to the defendant in the sum of $46,448.85 to be (i) paid into Court; or (ii) secured by a Bank guarantee in a form to be settled by the Registrar. 2. In the event that the plaintiff fails to provide such security then the proceeding is stayed until the order for security for costs has been complied with. 3. Liberty to apply. And in relation to that application, I order that the costs be costs in the cause.
CATCHWORDS:	[1] Practice: whether first amended defence contains implied admissions by reason of r.166(1)(a) UCPR; whether leave required to amend. [2] Security for Costs: where plaintiff corporation admits impecuniosity; whether delay in making application and other factors are such as to require discretionary dismissal of the application. Legislation: *Corporations Act (Cth) 2001* *Uniform Civil Procedure Rules (Qld) 1999* Cases Considered: Bryan E V Fencott v Eretta Pty Ltd (1987) 16 FCR at 514 Combined Property Industries (Qld) Pty Ltd v Pullenvale Estates Pty Ltd [2001] QSC 73 Gould v Mt. Oxide Mines Ltd (in Liq) (1916) 22 CLR 490 Harpur v Ariadne Australia Limited (No 2) [1984] 2 Qd R 523 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 Ridolfi v Rigato Farms Pty Ltd [2001} 2 Qd R 455 Siyan Pty Ltd v Nillumbik Shire Council [2002] VSC 285
COUNSEL:	Mr. Turnbull for the plaintiff Mr. Wilson for the defendant
SOLICITORS:	Short Punch & Greatorix for the Plaintiff Cogill Legal Services for the Defendant

Introduction

In 2000 Mr. Ridley and Mr. Ritter agreed to open and operate a retail clothing store in Hastings Street Noosa. The plaintiff company was formed for that purpose. The business operated until 2006 with Mr. Ritter essentially responsible for the day to day running of the shop and Mr. Ridley’s company providing stock and expertise. The claim before the Court…

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: [2008] QDC 258
Decision Date: 31 October 2008

CaseChat Overview and Summary

Noosa Retail Pty Ltd, the plaintiff, brought proceedings against Ritter, the defendant, in the Queensland District Court. The case involves a dispute over a property lease and subsequent litigation. The plaintiff sought various declarations, orders, and security for costs, while the defendant filed a first amended defence. The defendant also applied for security for costs due to the plaintiff's admitted financial difficulties. The court considered whether the first amended defence contained implied admissions under rule 166(1)(a) UCPR and whether leave was required for the amendment. Additionally, the court had to determine whether the plaintiff's delay in applying for security for costs and other factors warranted the dismissal of the application.

The primary legal issues the court addressed were whether the first amended defence implied admissions under rule 166(1)(a) UCPR and whether leave was necessary for the amendment. The court also had to decide whether the plaintiff's delay in applying for security for costs and other factors warranted the dismissal of the application. The court considered the authorities of Bryan E V Fencott v Eretta Pty Ltd, Combined Property Industries (Qld) Pty Ltd v Pullenvale Estates Pty Ltd, Gould v Mt. Oxide Mines Ltd, Harpur v Ariadne Australia Limited, Idoport Pty Ltd v National Australia Bank Ltd, Ridolfi v Rigato Farms Pty Ltd, and Siyan Pty Ltd v Nillumbik Shire Council to assist in its determination.

The court ruled that the first amended defence did not contain implied admissions under rule 166(1)(a) UCPR, and no leave was required for the amendment. Regarding the application for security for costs, the court found that the plaintiff's delay in making the application and other factors did not warrant the dismissal of the application. The court ordered the plaintiff to provide security for costs in the sum of $46,448.85 within 14 days of the date of the order, either by paying it into court or securing it by a bank guarantee in a form to be settled by the Registrar. If the plaintiff failed to provide such security, the proceeding would be stayed until the order for security for costs had been complied with.

The court also dismissed the plaintiff's application for further disclosure and the application for declarations and other orders. In relation to these applications, the plaintiff was ordered to pay the defendant's costs of and incidental to the disclosure application and the other application, as assessed on the standard basis or agreed, but limited to the defendant's costs of and incidental to the hearing on 17 October 2008. The court granted liberty to apply for the costs in relation to the security for costs application, which were to be costs in the cause.

Orders

Orders of the court

1. Application for further disclosure (filed by Plaintiff 19.9.08) dismissed. In relation to that application, I order the Plaintiff to pay the Defendant’s costs of and incidental to the disclosure application to be assessed on the standard basis, or agreed, but limited to his costs of and incidental to the hearing on the 17th October 2008.

2. The application for declarations and other orders filed by the plaintiff on the 23rd September 2008 is dismissed, and I order the Plaintiff to pay the Defendant’s costs of and incidental to that application as assessed on the standard basis, or agreed.

3. Application for security for costs (filed by Defendant 23.9.08):

I order as follows:

1. Within 14 days of the date of this order, the plaintiff give security for any costs awarded to be paid by the plaintiff to the defendant in the sum of $46,448.85 to be

(i) paid into Court; or

(ii) secured by a Bank guarantee in a form to be settled by the Registrar.

2. In the event that the plaintiff fails to provide such security then the proceeding is stayed until the order for security for costs has been complied with.

3. Liberty to apply. And in relation to that application, I order that the costs be costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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