Petroleum Engineering v Alexander

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Petroleum Engineering v Alexander [2014] QMC 16

PARTIES:

PETROLEUM ENGINEERING & CONSTRUCTIONS COMPANY PTY LTD

(plaintiff)

v

IAN ALEXENDER

(defendant)

FILE NO/S:

M296/12

DIVISION:

Magistrates Courts

PROCEEDING:

Claim – Application for summary judgment – Cross applications

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

4 March 2014

DELIVERED AT:

Toowoomba

HEARING DATE:

13 February 2014

MAGISTRATE:

Carroll JD

ORDER:

(i)        Paragraphs 2C, 2E, 3, 4, 5 and 5A of the plaintiff’s Further Amended Statement of Claim be struck out;

(ii)       The plaintiff pay the defendant’s costs of the defendant’s application to be assessed or agreed;

(iii)      That within 21 days from today, the plaintiff file and serve a Further Amended Statement of Claim, failing which it’s claim is struck out;

(iv)      The plaintiff pays the defendant’s costs of the plaintiff’s application to be assessed or agreed.

CATCHWORDS:

CIVIL LAW – PRACTICE AND PROCEDURE – Application for summary judgment

Uniform Civil Procedure Rules 1999, r 292, r293, r 171

Building and Construction Industry Payments Act 2004, s 19(4)

COUNSEL:

Van de Beld for the plaintiff

Handran for the defendant

SOLICITORS:

BM Law for the plaintiff

Murdoch Lawyers for the defendant

The Applications

1. On 13 February 2014 two cross applications came before the court.

2. The application filed first in time, on 16 August 2013, is by the defendant seeking the following orders:-

   (i) That pursuant to Rule 293 of the Uniform Civil Procedure Rules 1999 there be judgment for the defendant against the plaintiff.

   (ii) In the alternative, that pursuant to Rule 171 of the Uniform Civil Procedure Rules 1999:

   (a)Statement of Claim filed 13 December 2012 (SOC) be struck out; or

   (b)Alternatively, that paragraphs 2, 3, 4, 5, 6 and 7 of the SOC be struck out.

   (iii)The application also sought an order for costs against the plaintiff.

3. The second or cross application filed by the plaintiff on 3 February 2014 seeks orders that the defendant’s application filed on 16 August 2013 be dismissed. Secondly, that pursuant to Rule 292 of the Uniform Civil Procedure Rules 1999 and or s 19(4) of the Building and Construction Industry Payments Act 2004, judgment be entered in favour of the plaintiff against the defendant for all of the plaintiff’s claim.  The plaintiff also sought a cost order against the defendant.

4. I will deal firstly with the defendant’s application.

5. Mr Handran, for the defendant, read the following material:-

   (i)      Application filed 16 August 2013;

   (ii)     Affidavit of Craig John SHEPPARD filed 23 September 2013;

   (iii)     Further amended Statement of Claim (Further Amended Statement of Claim) filed 3 November 2013;

   (iv)    Amended Defence file 24 July 2013.

6. Mr van de Beld of Counsel appeared for the plaintiff.

The Dispute between the Parties

1. The plaintiff’s claim is for $43,477.50 for services provided by it to the defendant at the defendant’s request, and interest thereon.[1]

   [1]Claim filed 13 Dec 2012

2. The plaintiff is in the business of designing and installing petroleum and fuel storage and dispensing systems.[2]

   [2]Para 1(b) of the…