Petersen v Corby - [2013] QDC 211

DISTRICT COURT OF QUEENSLAND

CITATION:

Petersen & Anor v Corby [2013] QDC 211

PARTIES:

Tanya Gay Petersen

(first plaintiff/applicant)

And

Stephen Heath Petersen

(second plaintiff/applicant)

v

Gregory Thomas Corby

(defendant/respondent)

FILE NO/S:

Toowoomba No 36 of 2012

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

18 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2013

JUDGE:

Devereaux SC DCJ

ORDER:

The application is dismissed;

Costs are reserved;

The court directs that:

the defendant deliver a list of documents by 27 September 2013;

each party provide copies of any requested documents, or permit inspection of documents by 4 October 2013;

the plaintiff file any amended statement of claim by 11 October 2013;

the defendant file any amended defence by 18 October 2013;

the plaintiff file any reply by 25 October 2013;

the parties are to file any application in the proceeding by 8 November 2013 for the earliest available hearing date, and any such application must, in addition to any other relief, seek directions for the future conduct of the proceeding;

in the event that there is no application in the proceeding filed as contemplated by order 8, the plaintiffs are to serve on the defendant a completed and signed request for trial date by 15 November 2013;

the defendant is to sign and return the request for trial date served upon him under order 9 by 22 November 2013, or file by that date an application seeking directions for the future conduct of the proceeding; and

if the defendant does not sign and return the request for trial date, or file an application, in accordance with order 10, the requirement for the defendant’s signature is dispensed with, and the plaintiff is to file the request for trial date by 26 November 2013.

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – where claim arose from an uncompleted contract for the sale of house and land near Toowoomba – where there was a dispute on the pleadings as to the contract settlement date and the date for delivery of vacant possession - where despite extensions of settlement date buyer does not complete – where buyer purports to terminate for sellers’ failure to deliver vacant possession - where sellers claim damages for breach of contract – where sellers applied for judgment on their claim pursuant to rule 292 Uniform Civil Procedure Rules 1999 – whether at trial the defendant will have no reasonable prospect of successfully defending the claim - where possible issues for adjudication at trial include contract settlement date and the date for delivery of vacant possession - whether judgment can be given without the need for a trial

Uniform Civil Procedure Rules 1999 (Qld), r 166, r 292

RB Lease Pty Ltd v Heron [2013] QCA 181
Thornton v Bassett [1975] VR 407

Tropical Traders Ltd v Goonan (1963-1964) 111 CLR 41

COUNSEL:

P Travis for the plaintiff/applicant

No appearance for the defendant/respondent

SOLICITORS:

Aden lawyers for the plaintiff/applicant

No appearance for…

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 Petersen v Corby

Details

AGLC: Petersen & Anor v Corby [2013] QDC 211
Case: [2013] QDC 211
Decision Date: 18 September 2013

CaseChat Overview and Summary

The case of Petersen v Corby concerns a dispute arising from an uncompleted contract for the sale of a house and land near Toowoomba. The sellers, Petersen, brought an action against the buyers, Corby, for breach of contract and damages, following the buyers' failure to complete the purchase. The sellers applied for judgment under rule 292 of the Uniform Civil Procedure Rules 1999, asserting that the buyers had no reasonable prospect of successfully defending the claim. The primary legal issues were the contract settlement date, the date for delivery of vacant possession, and the buyers' purported termination of the contract due to the sellers' failure to deliver vacant possession.

The court considered whether judgment could be given without the need for a trial, focusing on the pleadings and potential issues for adjudication at trial. The court noted that there were disputed facts concerning the contract settlement date and the date for delivery of vacant possession. Despite the extensions of the settlement date, the buyers did not complete the purchase, and subsequently, they attempted to terminate the contract. The sellers sought damages for breach of contract, claiming that the buyers were in default. The court found that there were genuine issues of fact and law to be determined at trial, and therefore, the application for judgment was dismissed. The court directed that specific documents be exchanged and deadlines be set for the filing of pleadings and requests for trial dates, reserving costs for later determination.

In summary, the court dismissed the sellers' application for judgment, finding that there were material issues to be resolved at trial, particularly regarding the contract settlement date and the date for delivery of vacant possession. The court issued directions for the exchange of documents and set deadlines for the filing of amended pleadings and requests for trial dates. Costs were reserved for a later determination.

Orders

Orders of the court

1. The application is dismissed;

2. Costs are reserved;

The court directs that:

1. the defendant deliver a list of documents by 27 September 2013;

2. each party provide copies of any requested documents, or permit inspection of documents by 4 October 2013;

3. the plaintiff file any amended statement of claim by 11 October 2013;

4. the defendant file any amended defence by 18 October 2013;

5. the plaintiff file any reply by 25 October 2013;

6. the parties are to file any application in the proceeding by 8 November 2013 for the earliest available hearing date, and any such application must, in addition to any other relief, seek directions for the future conduct of the proceeding;

7. in the event that there is no application in the proceeding filed as contemplated by order 8, the plaintiffs are to serve on the defendant a completed and signed request for trial date by 15 November 2013;

8. the defendant is to sign and return the request for trial date served upon him under order 9 by 22 November 2013, or file by that date an application seeking directions for the future conduct of the proceeding; and

9. if the defendant does not sign and return the request for trial date, or file an application, in accordance with order 10, the requirement for the defendant’s signature is dispensed with, and the plaintiff is to file the request for trial date by 26 November 2013.

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:	Petersen & Anor v Corby [2013] QDC 211
PARTIES:	Tanya Gay Petersen (first plaintiff/applicant) And Stephen Heath Petersen (second plaintiff/applicant) v Gregory Thomas Corby (defendant/respondent)
FILE NO/S:	Toowoomba No 36 of 2012
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	18 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 May 2013
JUDGE:	Devereaux SC DCJ
ORDER:	The application is dismissed; Costs are reserved; The court directs that: the defendant deliver a list of documents by 27 September 2013; each party provide copies of any requested documents, or permit inspection of documents by 4 October 2013; the plaintiff file any amended statement of claim by 11 October 2013; the defendant file any amended defence by 18 October 2013; the plaintiff file any reply by 25 October 2013; the parties are to file any application in the proceeding by 8 November 2013 for the earliest available hearing date, and any such application must, in addition to any other relief, seek directions for the future conduct of the proceeding; in the event that there is no application in the proceeding filed as contemplated by order 8, the plaintiffs are to serve on the defendant a completed and signed request for trial date by 15 November 2013; the defendant is to sign and return the request for trial date served upon him under order 9 by 22 November 2013, or file by that date an application seeking directions for the future conduct of the proceeding; and if the defendant does not sign and return the request for trial date, or file an application, in accordance with order 10, the requirement for the defendant’s signature is dispensed with, and the plaintiff is to file the request for trial date by 26 November 2013.
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – where claim arose from an uncompleted contract for the sale of house and land near Toowoomba – where there was a dispute on the pleadings as to the contract settlement date and the date for delivery of vacant possession - where despite extensions of settlement date buyer does not complete – where buyer purports to terminate for sellers’ failure to deliver vacant possession - where sellers claim damages for breach of contract – where sellers applied for judgment on their claim pursuant to rule 292 Uniform Civil Procedure Rules 1999 – whether at trial the defendant will have no reasonable prospect of successfully defending the claim - where possible issues for adjudication at trial include contract settlement date and the date for delivery of vacant possession - whether judgment can be given without the need for a trial Uniform Civil Procedure Rules 1999 (Qld), r 166, r 292 RB Lease Pty Ltd v Heron [2013] QCA 181 Thornton v Bassett [1975] VR 407 Tropical Traders Ltd v Goonan (1963-1964) 111 CLR 41
COUNSEL:	P Travis for the plaintiff/applicant No appearance for the defendant/respondent
SOLICITORS:	Aden lawyers for the plaintiff/applicant No appearance for…