Pattinson v Shortman

[2010] QDC 475

DISTRICT COURT OF QUEENSLAND

CITATION:

Pattinson v Shortman [2010] QDC 475

PARTIES:

YVONNE MAUREEN PATTINSON

Plaintiff

v

DONALD CLAUDE SHORTMAN

and

DOROTHY CATHERINE SHORTMAN

Defendants

FILE NO:

89 of 2009

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

7 December 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

3 December 2010

JUDGE:

K S Dodds, DCJ

ORDER:

The application is dismissed.  The amended defence filed without leave in its present form cannot be sustained.  Leave to file the amended defence is refused. 

I order the defendants pay the plaintiff’s costs of the application.

CATCHWORDS:

APPLICATION – by defendants for leave to withdraw deemed admissions and to file amended defence – need for sworn evidence to support application – evidence inadequate

Uniform Civil Procedure Rules 1999 r 188

Cases cited:

Equuscorp Pty Ltd v Orazio [1999] QSC 354

Equuscorp Pty Ltd v Orazio[2000] QCA 117

Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QSC 34

Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246

Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292

COUNSEL:

B van de Beld for the plaintiff

D Castle (sol) for the defendants

SOLICITORS:

Ferguson Cannon Lawyers for the plaintiff

Forbes Dowling Lawyers for the defendants

1. This application, filed 16 November 2010 by defendants, seeks an order pursuant to rule 188 Uniform Civil Procedure Rules 1999 (UCPR) for leave to withdraw admissions in a defence, specifically paragraphs 1, 2 and 3 of the defence and for leave to amend the defence.

1. The application is opposed by the plaintiff/respondent. 

1. The proceeding in this Court is a claim for damages consequent upon non completion of a contract for sale of land by the plaintiff to the defendants, dated 29 May 2008.  Paragraphs 1, 2 and 3 of the statement of claim allege that by that contract the plaintiff sold the land to the defendants, that it was sold subject to an easement, there was a deposit of $5000, provisions for a building and pest inspection and report by a certain date, for settlement 90 days after the date of the contract and that the terms of the contract were those in the form approved by the Real Estate Institute of Queensland (REIQ) and the Queensland Law Society (QLS) for a contract for houses and residential land.  Particular terms of the contract were set out. 

1. On 26 August 2008 the defendants’ solicitor wrote to the plaintiff’s solicitor advising that the defendants were terminating the contract.  The letter asserted:

   §  prior to the contract, there was no discussion of any easements;

   §  when inspecting the property with the real estate agent, the female defendant received a passing indication that there was an easement along the side of the property.  As there was a driveway along the side of the property, she understood the reference to easement to mean an access easement, being the driveway on the other side of the fence.  There was no suggestion to her there was a drainage easement…