Oasis JV Pty Ltd v Armstrong - [2017] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:

Oasis JV Pty Ltd v Armstrong & Anor [2017] QDC 142

PARTIES:

OASIS JV PTY LTD ACN 603 854 913
(plaintiff)

v

MARK ARMSTRONG
(first defendant)

and

TIARNA ARMSTRONG
(second defendant)

FILE NO/S:

BD3807/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2017

JUDGE:

Smith DCJA

ORDER:

1.   I dismiss the plaintiff’s application for judgment on admissions.

2.   I dismiss the plaintiff’s application for summary judgment against the defendants.

3.   I dismiss the defendants’ application for summary judgment against the plaintiff.

4.   I order the defence and counter-claim be struck out.

5.   I strike out the claim by the defendants against the plaintiff concerning alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd.

6.   I allow the defendants 28 days to re-plead

7.   I will hear the parties on the question of costs.

CATCHWORDS:

PRACTICE AND PROCEDURE- SUMMARY JUDGMENT – JUDGMENT ON ADMISSIONS- Whether summary judgment should be ordered – whether judgment on admissions should be ordered

Competition and Consumer Act 2010 (Cth) ss 18, 20, 87

Australian Consumer Law ss 18, 20

Retail Shop Leases Act 1994 (Q) ss 43, 46A

Uniform Civil Procedure Rules 1999 (Q) rr 166, 190, 293

Agar v Hyde (2000) 201 CLR 552

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256

Coco v Ord Minnett Ltd [2012] QSC 324

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83

Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25

Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq) [2011] QCA 162

Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455

Spencer v The Commonwealth (2010) 241 CLR 118

COUNSEL:

Mr S Lane for the plaintiff

Self-represented defendants

SOLICITORS:

HWL Ebsworth Lawyers for the plaintiff

Self-represented defendants

Introduction

[1] This is an application by the plaintiff for judgment pursuant to r 190 of the UCPR; alternatively that various parts of the amended defence be struck out ; alternatively, judgment be entered against the defendants pursuant to r 293 UCPR in respect of the defendants’ counter-claim or alternatively the whole of the amended counter-claim be struck out and costs.

[2] There is a cross application by the defendants for judgment on the counter-claim.

[3] When considering the strikeout application I bear in mind that which was stated by Fraser JA in Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq)[1] where his Honour said:

“Issues in proceedings should ordinarily be decided at trial and should not be decided summarily unless there is a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’ or a ‘demonstrated certainty of…

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.

Continue reading Oasis JV Pty Ltd v Armstrong

Details

AGLC: Oasis JV Pty Ltd v Armstrong [2017] QDC 142
Case: [2017] QDC 142
Decision Date: 2 June 2017

CaseChat Overview and Summary

The case of Oasis JV Pty Ltd v Armstrong involved a dispute between the plaintiff, Oasis JV Pty Ltd, and the defendants, Armstrong. The plaintiff sought a judgment on admissions and summary judgment against the defendants. In turn, the defendants also sought summary judgment against the plaintiff and filed a defence and counter-claim against the plaintiff for alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd. The case was heard by the Queensland Supreme Court.

The court was required to decide whether the plaintiff's application for judgment on admissions and summary judgment should be granted. It also needed to determine whether the defendants' application for summary judgment should be granted and whether the defence and counter-claim should be struck out. The court further needed to consider whether the plaintiff's claims against the defendants concerning alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd should be dismissed.

The court dismissed the plaintiff's application for judgment on admissions and summary judgment against the defendants. It also dismissed the defendants' application for summary judgment against the plaintiff. The court struck out the defence and counter-claim, as well as the claim by the defendants against the plaintiff concerning alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd. The court allowed the defendants 28 days to re-plead and scheduled a hearing on the question of costs. The court found that the plaintiff had not made out a case for judgment on admissions or summary judgment, and that the defence and counter-claim were not well-founded. The court also found that the claims concerning Sovereign Goldsea Pty Ltd were not properly before the court.

In summary, the court dismissed the plaintiff's application for judgment on admissions and summary judgment against the defendants, as well as the defendants' application for summary judgment against the plaintiff. The court struck out the defence and counter-claim, as well as the claim by the defendants against the plaintiff concerning alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd. The court allowed the defendants 28 days to re-plead and scheduled a hearing on the question of costs.

Orders

Orders of the court

1. I dismiss the plaintiff’s application for judgment on admissions.

2. I dismiss the plaintiff’s application for summary judgment against the defendants.

3. I dismiss the defendants’ application for summary judgment against the plaintiff.

4. I order the defence and counter-claim be struck out.

5. I strike out the claim by the defendants against the plaintiff concerning alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd.

6. I allow the defendants 28 days to re-plead

7. I will hear the parties on the question of costs.

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:	Oasis JV Pty Ltd v Armstrong & Anor [2017] QDC 142
PARTIES:	OASIS JV PTY LTD ACN 603 854 913 (plaintiff) v MARK ARMSTRONG (first defendant) and TIARNA ARMSTRONG (second defendant)
FILE NO/S:	BD3807/16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2017
JUDGE:	Smith DCJA
ORDER:	1. I dismiss the plaintiff’s application for judgment on admissions. 2. I dismiss the plaintiff’s application for summary judgment against the defendants. 3. I dismiss the defendants’ application for summary judgment against the plaintiff. 4. I order the defence and counter-claim be struck out. 5. I strike out the claim by the defendants against the plaintiff concerning alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd. 6. I allow the defendants 28 days to re-plead 7. I will hear the parties on the question of costs.
CATCHWORDS:	PRACTICE AND PROCEDURE- SUMMARY JUDGMENT – JUDGMENT ON ADMISSIONS- Whether summary judgment should be ordered – whether judgment on admissions should be ordered Competition and Consumer Act 2010 (Cth) ss 18, 20, 87 Australian Consumer Law ss 18, 20 Retail Shop Leases Act 1994 (Q) ss 43, 46A Uniform Civil Procedure Rules 1999 (Q) rr 166, 190, 293 Agar v Hyde (2000) 201 CLR 552 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Coco v Ord Minnett Ltd [2012] QSC 324 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83 Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq) [2011] QCA 162 Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 Spencer v The Commonwealth (2010) 241 CLR 118
COUNSEL:	Mr S Lane for the plaintiff Self-represented defendants
SOLICITORS:	HWL Ebsworth Lawyers for the plaintiff Self-represented defendants