Oberto v Ferguson - [2012] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

Oberto v Ferguson [2012] QDC 39

PARTIES:

CLAUDE OBERTO
(Plaintiff)

v

RICHARD FERGUSON
(Defendant)

FILE NO/S:

1592 of 2009

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 December 2011

JUDGE:

Long SC, DCJ

ORDER:

The application of the plaintiff for summary judgment is dismissed.

CATCHWORDS:

PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – UNIFORM CIVIL PROCEDURE RULE 292 – where plaintiff brought an application for summary judgment – whether the defendant has no real prospect of defending the claim under r 292 – whether the plaintiff is entitled to summary judgment.

PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – PLEADING– DEFENCE – where the plaintiff has made an application to strike out the defence pursuant to r 171 Uniform Civil Procedure Rules.

LEGISLATION:

Cheques Act 1986 (Cth), s 3, 10, 25, 26, 27, 28, 36, 37, 58, 71, 76.

Uniform Civil Procedure Rules 1999, r 149, 157, 171, 292.

CASES:

Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135.

Cebora SNC v SIP (Industrial Products) Ltd 1976 1 Lloyd’s REP 271.

Clyde Contractors Pty Ltd v Northern Beaches Developments Pty Ltd [2001] QCA 314.

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

Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GMBH [1977] 1 WLR 713.

Qld Pork Pty Ltd v Lott [2003] QCA 271

COUNSEL:

E.J. Sweeney, solicitor, on behalf of the plaintiff.

D. Topp on behalf of the defendant.

SOLICITORS:

Cooper Grace Ward on behalf of the plaintiff.

Porter Law Pty Ltd on behalf of the defendant.

Introduction

In this matter the plaintiff makes application for summary judgment on its claim and alternatively for the defence, or parts of it, to be struck out.[1]
[1]The application filed on 12 December 2011 also contained a request for leave to proceed pursuant to UCPR 389(2) but it was common ground, at the hearing of this application, that no necessity for such an order had arisen and also that the plaintiff had complied with UCPR 389(1). Also, on the day before the hearing of this application, the defendant filed a cross-application for security for costs, which was, at the hearing, adjourned by consent and subsequently the subject of a consent order dismissing that application.

The plaintiff’s claim was filed on 10 June 2009. In essence the claim is for the payment of:

(a) Liquidated damages:

(i) in the sum of $150,000 (being the sum of two cheques delivered in the respective amounts of $50,000 and $100,000), pursuant to section 76 of the Cheques Act 1986 (Cth) (“Cheques Act”); and

(ii) Interest from the respective date of dishonour of each cheque, to the date of filing of the claim (alternatively at a rate of 10% per annum pursuant to section 47 of the Supreme Court Act 1995 (Qld) or 7.8% per annum pursuant to section 76 of 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] QDC 39
Decision Date: 16 March 2012

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Oberto, for summary judgment against the defendant, Ferguson. The plaintiff sought to have their claim resolved without a trial, on the basis that the defendant had no real prospect of successfully defending it. Additionally, the plaintiff moved to strike out the defendant's defence under rule 171 of the Uniform Civil Procedure Rules. The central legal issue was whether the defendant had any viable defence that could be pursued at trial, thus precluding the plaintiff's entitlement to summary judgment.

In examining the application, the court assessed the merits of the defence presented by the defendant. The court considered the evidence and arguments provided by both parties, focusing on whether the defendant had raised any genuine issues of fact or law that would warrant a trial. The court found that the defendant had provided sufficient grounds to suggest that there were matters in dispute that needed to be explored in a trial. Consequently, the court determined that the defendant had a real prospect of defending the claim, thereby negating the plaintiff's entitlement to summary judgment.

The court dismissed the plaintiff's application for summary judgment, ruling that the defendant's defence was not frivolous or untenable. The court also declined the plaintiff's motion to strike out the defendant's defence, as it found that the defence contained arguable points that deserved consideration at a trial. The application for summary judgment was thus denied, and the case was to proceed to trial to resolve the substantive issues between the parties.

Orders

Orders of the court

The application of the plaintiff for summary judgment 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:	Oberto v Ferguson [2012] QDC 39
PARTIES:	CLAUDE OBERTO (Plaintiff) v RICHARD FERGUSON (Defendant)
FILE NO/S:	1592 of 2009
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	16 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 December 2011
JUDGE:	Long SC, DCJ
ORDER:	The application of the plaintiff for summary judgment is dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – UNIFORM CIVIL PROCEDURE RULE 292 – where plaintiff brought an application for summary judgment – whether the defendant has no real prospect of defending the claim under r 292 – whether the plaintiff is entitled to summary judgment. PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – PLEADING– DEFENCE – where the plaintiff has made an application to strike out the defence pursuant to r 171 Uniform Civil Procedure Rules.
LEGISLATION:	Cheques Act 1986 (Cth), s 3, 10, 25, 26, 27, 28, 36, 37, 58, 71, 76. Uniform Civil Procedure Rules 1999, r 149, 157, 171, 292.
CASES:	Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135. Cebora SNC v SIP (Industrial Products) Ltd 1976 1 Lloyd’s REP 271. Clyde Contractors Pty Ltd v Northern Beaches Developments Pty Ltd [2001] QCA 314. Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232 Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GMBH [1977] 1 WLR 713. Qld Pork Pty Ltd v Lott [2003] QCA 271
COUNSEL:	E.J. Sweeney, solicitor, on behalf of the plaintiff. D. Topp on behalf of the defendant.
SOLICITORS:	Cooper Grace Ward on behalf of the plaintiff. Porter Law Pty Ltd on behalf of the defendant.