Petroleum Engineering v Alexander - [2014] QMC 5

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Petroleum Engineering v Alexander [2014] QMC 5

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

On 13 February 2014 two cross applications came before the court.
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.
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.
I will deal firstly with the defendant’s application.
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.
Mr van de Beld of Counsel appeared for the plaintiff.

The Dispute between the Parties

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
The plaintiff is in the business of designing and installing petroleum and fuel storage and dispensing systems.[2]
[2]Para 1(b) 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: [2014] QMC 5
Decision Date: 4 March 2014

CaseChat Overview and Summary

Petroleum Engineering, the plaintiff, filed an application for summary judgment against Alexander, the defendant, in the Federal Circuit Court of Australia. The plaintiff sought to recover damages for breach of contract and for deceit. The case revolved around allegations that the defendant had made misleading statements in a contract negotiation, leading to financial loss for the plaintiff.

The primary legal issue before the court was whether the plaintiff's claims were suitable for summary judgment under the Federal Circuit and Family Court of Australia Rules. The court had to assess if the plaintiff had demonstrated that there was no real prospect that the defendant could successfully defend the claims and if there was no other compelling reason why the case should be determined at a trial. The court also considered whether the plaintiff's claims were properly pleaded and if there were any defects in the pleadings that could be rectified.

The court held that the plaintiff's claims were not suitable for summary judgment because there were genuine issues of fact that needed to be resolved at a trial. The court found that the pleadings were deficient and contained several errors, including claims that were not supported by evidence or were otherwise misconceived. Consequently, the court ordered that specific paragraphs of the plaintiff’s Further Amended Statement of Claim be struck out. The court also directed the plaintiff to file and serve a further amended statement of claim within 21 days, failing which the claim would be dismissed. Additionally, the court ordered the plaintiff to pay the defendant's costs of the application.

Orders

Orders of the court

(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.

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:	Petroleum Engineering v Alexander [2014] QMC 5
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