Probert v Ericson

[2014] QSC 4

SUPREME COURT OF QUEENSLAND

CITATION:

Probert & Anor v Ericson [2014] QSC 4

PARTIES:

SHARON PROBERT   
(first plaintiff/defendant by counterclaim/first applicant)
DAVID PROBERT
(second plaintiff/defendant by counterclaim/second applicant)
v
DAN ERICSON

(defendant/plaintiff by counterclaim/respondent)

FILE NO:

SC No 3524 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

22 January 2014

DELIVERED AT:

Cairns

HEARING DATE:

25 October 2013

JUDGE:

Henry J

ORDERS:

1.      Summary judgment for the applicants on part of the claim in the amount of $469,742.38. 

2.      The counterclaim is struck out. 

3.      It is directed no further counterclaim may be filed in the proceeding without the leave of the court.

4.      I will hear the parties as to:

(a)     interest;

(b)     costs;

(c)     directions for the further conduct of the proceeding in respect of those components of the debt claimed but not finalised by the summary judgment.  

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendant failed to reach practical completion under a building contract in relation to the construction of a house for the plaintiffs – where the parties entered into a deed about completion of the project – where the plaintiffs claim a liquidated debt under the deed – where the plaintiffs make application for summary judgment – whether the defendant has no real prospect of successfully defending the plaintiffs’ claim 

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM – where the defendant counterclaims against the plaintiffs – where the defendant has not particularised material facts relating to the counterclaim – whether the counterclaim should be struck out

Uniform Civil Procedure Rules 1999 (Qld) r 166, r 292, r 293, r 295, r 296
Bustfree Pty Ltd v Llewellyn & Anor [2013] QCA 103, cited
Chen v Australian and New Zealand Banking Group Limited & Anor [2001] QSC 43, cited
Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40, considered
LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105, cited
The Commonwealth v Verwayen (1990) 170 CLR 394, cited

COUNSEL:

C Taylor for the first and second plaintiff

The defendant appeared on his own behalf

SOLICITORS:

Kaden Boriss Brisbane for the first and second plaintiff

The defendant appeared on his own behalf

1. The applicants are plaintiffs in a proceeding before the Supreme Court in which they claim money owing under a deed of agreement and in which the respondent counterclaims for damages to his reputation, business and health.  

1. The dispute between the parties arose in the course of the respondent building a house for the applicants at Palm Cove near Cairns.

1. In the present application the applicants seek summary judgment in respect of their claim and the counterclaim of the respondent.  The applicants seek lesser orders in the alternative.

Background  

1. The applicants claim $1,165,172.14[1] as a liquidated…