PKF (Gold Coast) Pty Ltd v Drake - [2021] QSC 326

SUPREME COURT OF QUEENSLAND

CITATION:

PKF (Gold Coast) Pty Ltd & Anor v Drake [2021] QSC 326

PARTIES:

PKF (GOLD COAST) PTY LTD ACN 137 521 250

(first applicant/first defendant)
SCOTT JAMES McMURTRIE
(second applicant/second defendant)

v
PETER CHARLES DRAKE

(respondent/plaintiff)

FILE NO/S:

BS No 2822 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2021

JUDGE:

Martin J

ORDERS:

1.   The statement of claim is struck out.

2.    The respondent/plaintiff has leave to file a further amended statement of claim by 21 February 2022.

3.    The respondent/plaintiff is to pay the applicants’/defendants’ costs of this application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the applicants/defendants seek to strike out the respondent’s/plaintiff’s sixth statement of claim – where the applicants/defendants argue that the action be struck out on the basis that the respondent/plaintiff is unable to provide a properly drawn pleading – where the respondent/plaintiff is now represented by a firm of solicitors – whether the statement of claim should be struck out

Uniform Civil Procedure Rules 1999, r 149, r 156

Tutos v Roman Catholic Trust Corporation [2020] QCA 171

COUNSEL:

M Jones for the applicants/first and second defendants

P Hackett for the respondent/plaintiff

SOLICITORS:

Hall & Wilcox for the applicants/first and second defendants

Holt Lawyers for the respondent/plaintiff

This is an application by the first and second defendants to strike out the statement of claim and for summary judgment against the plaintiff.
The statement of claim the subject of this application is the sixth attempt to draw a pleading which complies with the requirements of the Uniform Civil Procedure Rules 1999 (“UCPR”).
The statement of claim is 36 pages long and comprises 111 paragraphs. It is a claim for damages for negligence against the first defendant as the accountants for the plaintiff and the second defendant as a director or partner of the first defendant with respect to what is alleged to be negligent advice or, perhaps, a failure to advise. The plaintiff seeks damages in excess of $140 million.
The events which are said to establish the cause of action in negligence occurred in early 2013. These proceedings were commenced shortly before the limitation period expired with respect to those matters. Since then, a number of statements of claim have been provided by the plaintiff, and they have either been struck out or accepted by the plaintiff to be inadequate. In July 2020, the plaintiff filed a notice that he was acting in person, and, after that, the fifth and then the sixth version of the statement of claim were filed. The plaintiff has been represented in this matter by Holt Lawyers since 30 November 2021. The plaintiff, though, drew this pleading.
Although lawyers now represent the plaintiff, he was bound by the Rules when he was self-represented, and they applied to him as much as they…

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: [2021] QSC 326
Decision Date: 9 December 2021

CaseChat Overview and Summary

The case of PKF (Gold Coast) Pty Ltd v Drake involved a dispute over whether the plaintiff's sixth statement of claim should be struck out. The plaintiff, represented by a firm of solicitors, sought to proceed with a legal action against the defendants. The defendants, in turn, applied to the court to have the plaintiff's statement of claim struck out, arguing that it was improperly drawn and that the plaintiff could not provide a properly drafted pleading. This matter was heard in a civil court, where the primary focus was on the procedural aspects of the case.

The court was tasked with determining whether the plaintiff's statement of claim should indeed be struck out based on the defendants' contentions. This involved examining the plaintiff's ability to provide a properly drafted pleading, particularly in light of the plaintiff's change in legal representation. The court had to consider whether the plaintiff's statement of claim met the necessary standards for a valid pleading and whether the plaintiff's new legal representation could rectify any deficiencies in a timely manner.

In delivering its judgment, the court found that the plaintiff's statement of claim did not meet the required standards and was, therefore, properly struck out. The court reasoned that the plaintiff had failed to provide a properly drafted pleading, which was a fundamental requirement for proceeding with the action. Despite this, the court granted the plaintiff leave to file a further amended statement of claim by a specified date, recognising the potential for the plaintiff to correct the deficiencies with the assistance of their new legal representatives. The court also ordered the plaintiff to pay the defendants' costs associated with the application to strike out the statement of claim.

In summary, the court's decision was to strike out the plaintiff's sixth statement of claim, grant the plaintiff leave to amend and refile it by a specified date, and order the plaintiff to pay the defendants' costs of the application. This outcome reflected the court's view that while the plaintiff had not met the necessary standards for a valid pleading, there was an opportunity for the plaintiff to correct the deficiencies with the benefit of new legal representation.

Orders

Orders of the court

1. The statement of claim is struck out.

2. The respondent/plaintiff has leave to file a further amended statement of claim by 21 February 2022.

3. The respondent/plaintiff is to pay the applicants’/defendants’ costs of this application.

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:	PKF (Gold Coast) Pty Ltd & Anor v Drake [2021] QSC 326
PARTIES:	PKF (GOLD COAST) PTY LTD ACN 137 521 250 (first applicant/first defendant) SCOTT JAMES McMURTRIE (second applicant/second defendant) v PETER CHARLES DRAKE (respondent/plaintiff)
FILE NO/S:	BS No 2822 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2021
JUDGE:	Martin J
ORDERS:	1. The statement of claim is struck out. 2. The respondent/plaintiff has leave to file a further amended statement of claim by 21 February 2022. 3. The respondent/plaintiff is to pay the applicants’/defendants’ costs of this application.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the applicants/defendants seek to strike out the respondent’s/plaintiff’s sixth statement of claim – where the applicants/defendants argue that the action be struck out on the basis that the respondent/plaintiff is unable to provide a properly drawn pleading – where the respondent/plaintiff is now represented by a firm of solicitors – whether the statement of claim should be struck out Uniform Civil Procedure Rules 1999, r 149, r 156 Tutos v Roman Catholic Trust Corporation [2020] QCA 171
COUNSEL:	M Jones for the applicants/first and second defendants P Hackett for the respondent/plaintiff
SOLICITORS:	Hall & Wilcox for the applicants/first and second defendants Holt Lawyers for the respondent/plaintiff