QIC Logan Hyperdome Pty Ltd v Briridge Pty Ltd - [2011] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

QIC Logan Hyperdome Pty Ltd & Anor v Briridge Pty Ltd & Anor [2011] QSC 43

PARTIES:

QIC LOGAN HYPERDOME PTY LTD
ACN 076 279 699
(first applicant)
JOHN CLIFFORD LONGHURST
(second applicant)
v
BRIRIDGE PTY LTD
ACN 104 378 225
(first respondent)
GREGORY BRITT

(second respondent)

FILE NO/S:

SC No 13671 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

18 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2011

JUDGE:

Chief Justice

ORDER:

1. That the third amended defence and counter claim filed 2 July 2010 be struck out;

2. That the defendants have leave to deliver a fourth amended defence and counter claim within 60 days; and

3. That the defendants pay the plaintiffs’ costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE –

QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – where application made under r 171 to strike out pleadings – where the pleadings demonstrate shortcomings – where it cannot be concluded plaintiffs have an no arguable claims – whether counter-claim and defence were pleaded with sufficient particularity – whether the pleadings sufficiently complied with the UCPR – whether the pleadings were so substantially flawed so as to be struck out with leave granted to re-plead

Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75, cited

Yorke v Lucas (1985) 158 CLR 661, cited

Retail Shop Leases Act 1994 (Qld), s 43(1)(c)
Trade Practice Act 1974 (Cth), s 52

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 150(1)(k)

COUNSEL:

G D Sheahan for the applicants

L C Alford for the respondents

SOLICITORS:

Allens Arthur Robinson for the applicants

Neumann & Tourner Lawyers for the respondents

CHIEF JUSTICE: The plaintiffs apply for an order under Rule 171 of the Uniform Civil Procedure Rules striking out the third amended defence and counter claim filed on 2 July 2010.

The original defence and counter claim was filed on 31 July 2009. The plaintiffs objected to it on the grounds particularized in their solicitors’ letter of 15 September 2009, and that led to the filing of an amended defence and counter claim of 7 October 2009. A further amended pleading was filed following further complaint. That was filed on 23 November 2009. The defendants then changed their solicitors, and after further communications between solicitors, the defendants filed the current third amended defence and counter claim on 2 July 2010.
The plaintiffs refuse to accept that third amended defence and counter claim as being adequate, and their application for the striking out of that pleading was preceded by the requisite letter under Rule 444 which the defendants have resisted.
The plaintiffs claim rent and outgoings due under a lease over premises within the Logan Hyperdome Shopping Centre, used as a video store. The term of the lease was six years from 2 June 2003. The second defendant is the guarantor of the first defendant’s obligations…

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: [2011] QSC 43
Decision Date: 18 March 2011

CaseChat Overview and Summary

QIC Logan Hyperdome Pty Ltd sought to have the third amended defence and counter-claim filed by Bribridge Pty Ltd struck out. The basis of the application was that the pleadings demonstrated shortcomings and it could not be concluded that the plaintiffs had any arguable claims. The dispute centred on the sufficiency of the pleadings in light of the Uniform Civil Procedure Rules, particularly whether the counter-claim and defence were pleaded with sufficient particularity and whether the pleadings complied with the requirements of the UCPR. The matter was heard in the Supreme Court of Queensland.

The court was required to decide whether the pleadings were so substantially flawed that they warranted being struck out, and if so, whether leave should be granted to the defendants to re-plead. The court considered the pleadings in the context of the statutory and rule requirements, particularly under rule 171 of the Uniform Civil Procedure Rules. The court examined whether the pleadings provided enough detail to frame the issues between the parties and to allow the plaintiffs to respond effectively.

The court found that the pleadings did not sufficiently comply with the UCPR, and as such, were substantially flawed. The pleadings did not provide the necessary particularity to frame the issues between the parties, and it could not be concluded that the plaintiffs had any arguable claims. The court granted the application to strike out the pleadings and allowed the defendants to file a fourth amended defence and counter-claim within 60 days. Additionally, the defendants were ordered to pay the plaintiffs’ costs of and incidental to the application, to be assessed on the standard basis.

The orders of the court were that the third amended defence and counter-claim filed by the defendants be struck out, that the defendants have leave to deliver a fourth amended defence and counter-claim within 60 days, and that the defendants pay the plaintiffs’ costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

1. that the third amended defence and counter claim filed 2 July 2010 be struck out;

2. that the defendants have leave to deliver a fourth amended defence and counter claim within 60 days; and

3. that the defendants pay the plaintiffs’ costs of and incidental to the application, to be assessed on the standard basis.

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:	QIC Logan Hyperdome Pty Ltd & Anor v Briridge Pty Ltd & Anor [2011] QSC 43
PARTIES:	QIC LOGAN HYPERDOME PTY LTD ACN 076 279 699 (first applicant) JOHN CLIFFORD LONGHURST (second applicant) v BRIRIDGE PTY LTD ACN 104 378 225 (first respondent) GREGORY BRITT (second respondent)
FILE NO/S:	SC No 13671 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	18 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2011
JUDGE:	Chief Justice
ORDER:	1. That the third amended defence and counter claim filed 2 July 2010 be struck out; 2. That the defendants have leave to deliver a fourth amended defence and counter claim within 60 days; and 3. That the defendants pay the plaintiffs’ costs of and incidental to the application, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – where application made under r 171 to strike out pleadings – where the pleadings demonstrate shortcomings – where it cannot be concluded plaintiffs have an no arguable claims – whether counter-claim and defence were pleaded with sufficient particularity – whether the pleadings sufficiently complied with the UCPR – whether the pleadings were so substantially flawed so as to be struck out with leave granted to re-plead Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75, cited Yorke v Lucas (1985) 158 CLR 661, cited Retail Shop Leases Act 1994 (Qld), s 43(1)(c) Trade Practice Act 1974 (Cth), s 52 Uniform Civil Procedure Rules 1999 (Qld), r 171, r 150(1)(k)
COUNSEL:	G D Sheahan for the applicants L C Alford for the respondents
SOLICITORS:	Allens Arthur Robinson for the applicants Neumann & Tourner Lawyers for the respondents