OSM Group Pty Ltd v Holden

DISTRICT COURT OF QUEENSLAND

CITATION:

OSM Group Pty Ltd v Holden [2013] QDC 151

PARTIES:

OSM GROUP PTY LTD

(Plaintiff)

v

Jody William HOLDEN

(Defendant )

FILE NO:

TSV 316/2012

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2013

JUDGE:

Durward SC DCJ

ORDERS:

1.   Application refused

2.   The defendant is to file and serve an Amended Defence within 14 days of the date of delivery of this judgment.

3.   Costs of and incidental to the application are reserved.

CATCHWORDS:

PROCEDURE – DISTRICT COURTS - CIVIL - JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS - application for judgment on admissions – application for summary judgment - Uniform Civil Procedure Rules 1999 (Qld) - r190 - r292 – r166 - pleadings - denials and non admissions - requirement for direct explanation – requirement to plead - where allegations of mixed fact and law – where material facts pleaded as particulars - whether defence is substantially responsive - application refused

LEGISLATION

Uniform Civil Procedure Rules 1999 5, 149, 166, 169, 190, 292 and 385.

CASES

Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116; Ballesteros v Chidlow [2005] QSC 285; Thomas v The King (1937) 59 CLR 279; Dovuro Pty Ltd v Wilkins [2003] 215 CLR 317; Grey v Australian Motorists & General Insurance Co. Pty. Ltd. [1976] 1 NSWLR 669; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Arnold Electrical and Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100; Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455; Robinson v Laws [2003] 1 Qd R 81; Dominus Pty Ltd v Daydream Island Resort Investments Pty Ltd [2003] QSC 44; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.

COUNSEL:

T Matthews for the applicant/plaintiff

M D Martin for the respondent/defendant

SOLICITORS:

Boulton Cleary & Kern Lawyers for the applicant/plaintiff

Emanate Legal Lawyers for the respondent/defendant

Background

1. The proceeding arises from an agreement between the plaintiff and the defendant in relation to the day to day operations of OSM Innovative Training Solutions (“ITS”), a registered training organisation. 

1. The plaintiff asserts that it and the defendant expressly agreed to the manner in which and powers with which the defendant would assume responsibility for the day to day operations of ITS and how he would be remunerated. 

1. The plaintiff also relies upon implied terms of the agreement and fiduciary duties alleged to have arisen by reason of the relationship between it and the defendant. It pleads that by specific conduct, the defendant demonstrated an intention not to be bound by the agreement. That conduct is asserted to amount to a repudiation of the agreement and the plaintiff says that it accepted that repudiation and terminated the agreement. It also asserts that the defendant, in breach of a number of both express…