O'Brien v Hillcrown Pty Ltd - [2012] QSC 114

SUPREME COURT OF QUEENSLAND

CITATION:

O’Brien v Hillcrown Pty Ltd and Anor [2012] QSC 114

PARTIES:

JOHN CHARLES JOSEPH O’BRIEN and STANLEY WILLIAM O’BRIEN
(Plaintiffs)

v

HILLCROWN PTY LTD (ACN 092 155 701)
(First Defendant)

and

GRAEME ANGUS INGLES
(Second Defendant)

FILE NO/S:

BS 113 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

30 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2012

JUDGE:

Boddice J

ORDER:

1. The defendants’ application is dismissed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendants make application for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants allege the plaintiffs’ evidence does not support their claims – whether the application should be granted

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the defendants make application to strike out parts of the amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the application should be granted

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – where the defendants seek judgment by default pursuant to r 280 of the Uniform Civil Procedure Rules 1999 (Qld) for alleged repeated failures by the plaintiffs to comply with court orders – whether judgment by default should be granted

Uniform Civil Procedure Rules1999 (Qld)

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Coldham-Fussell v Commissioner of Taxation [2011] QCA 45

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Frikton v Plastiras [2010] QSC 5

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119

Quinlan v Rothwell [2002] 1 Qd R 647

Robertson v Holling and Ors [2009] QCA 303

Royalene Pty Ltd v Registrar of Titles [2007] QSC 59

Spencer v The Commonwealth (2010) 241 CLR 118

COUNSEL:

M Bland for the plaintiffs

D O’Brien for the first and second defendants

SOLICITORS:

QBM Lawyers for the plaintiffs

Brian Bartley & Associates for the first and second defendants

The defendants make application for summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules1999 (Qld) (“UCPR”) or, in the alternative, to strike out paragraphs 8 and 9 of the amended statement of claim pursuant to rr 171(1) and (2), UCPR. In the further alternative, the defendants seek judgment by default pursuant to r 280, UCPR, for alleged repeated failures by the plaintiffs to comply with court orders.

The plaintiffs oppose the making of any such orders. They also seek leave to rely on a further expert report by Cardno Lawson Treloar dated 12 March 2012 (“the Cardno report”).

The claim

The plaintiffs’ claim arises out of agreements entered into between the plaintiffs and the…

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: [2012] QSC 114
Decision Date: 30 April 2012

CaseChat Overview and Summary

The case of O'Brien v Hillcrown Pty Ltd concerns a dispute under the Uniform Civil Procedure Rules 1999 (Qld) where the defendants, Hillcrown Pty Ltd, sought summary judgment, an order to strike out parts of the amended statement of claim, and judgment by default against the plaintiffs, O'Brien. The defendants argued that the plaintiffs' evidence did not support their claims and that the plaintiffs had failed to comply with court orders. The matter was heard in the Supreme Court of Queensland.

The court was required to determine whether the defendants' application for summary judgment should be granted, whether the application to strike out parts of the amended statement of claim should be allowed, and whether judgment by default should be entered against the plaintiffs. The court's analysis focused on whether the defendants had demonstrated that there was no real prospect that the plaintiffs could succeed on their claims. Additionally, the court examined whether the parts of the amended statement of claim sought to be struck out were legally or factually irrelevant or otherwise improper. Lastly, the court assessed whether the plaintiffs' repeated failures to comply with court orders justified judgment by default.

The court found that the defendants had not shown that there was no real prospect of the plaintiffs succeeding on their claims. The court held that the evidence presented by the plaintiffs was sufficient to justify proceeding to a trial. Additionally, the court determined that the parts of the amended statement of claim sought to be struck out were relevant and properly pleaded. Consequently, the application to strike out was dismissed. Regarding the application for judgment by default, the court found that the plaintiffs' failures to comply with court orders did not warrant such a severe penalty. Therefore, the application for judgment by default was also dismissed.

Orders

Orders of the court

1. The defendants’ application is dismissed.

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:	O’Brien v Hillcrown Pty Ltd and Anor [2012] QSC 114
PARTIES:	JOHN CHARLES JOSEPH O’BRIEN and STANLEY WILLIAM O’BRIEN (Plaintiffs) v HILLCROWN PTY LTD (ACN 092 155 701) (First Defendant) and GRAEME ANGUS INGLES (Second Defendant)
FILE NO/S:	BS 113 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	30 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2012
JUDGE:	Boddice J
ORDER:	1. The defendants’ application is dismissed.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendants make application for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants allege the plaintiffs’ evidence does not support their claims – whether the application should be granted PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the defendants make application to strike out parts of the amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the application should be granted PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – where the defendants seek judgment by default pursuant to r 280 of the Uniform Civil Procedure Rules 1999 (Qld) for alleged repeated failures by the plaintiffs to comply with court orders – whether judgment by default should be granted Uniform Civil Procedure Rules1999 (Qld) Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Coldham-Fussell v Commissioner of Taxation [2011] QCA 45 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Frikton v Plastiras [2010] QSC 5 Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119 Quinlan v Rothwell [2002] 1 Qd R 647 Robertson v Holling and Ors [2009] QCA 303 Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 Spencer v The Commonwealth (2010) 241 CLR 118
COUNSEL:	M Bland for the plaintiffs D O’Brien for the first and second defendants
SOLICITORS:	QBM Lawyers for the plaintiffs Brian Bartley & Associates for the first and second defendants