Quilkey v Tractile Combined Pty Ltd - [2022] QDC 185

DISTRICT COURT OF QUEENSLAND

CITATION:

Quilkey & another v Tractile Combined Pty Ltd & others [2022] QDC 185

PARTIES:

STEVEN ROBERT QUILKEY AND Yukiko Nozaki
(Plaintiffs)

v

TRACTILE COMBINED PTY LTD ACN 627 772 212
(First Defendant)

v

TRACTILE PTY LTD ACN 142 809 381
(Second Defendant)

v

JASON DEAN PERKINS
(Third Defendant)

v

TRAC GROUP HOLDINGS PTY LTD ACN 115 007 540
(Fourth Defendant)

FILE NO:

794/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

18 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2022

JUDGE:

Porter QC DCJ

ORDER:

1.    Paragraphs 2(e), 3(f), and 5A(e) of the Further Amended Statement of Claim filed on 29 March 2022 [Court doc. 30] (“FASOC”) are struck out with leave to re-plead.

2.   The Defendants are deemed to admit the allegations contained in sub-paragraph 8(a) of the FASOC for the purpose of this proceeding.

3.   Sub-paragraph 9(a) of the Defence filed on 1 July 2022 [Court doc. 34] is struck out.

4.   To the extent the allegations are not admitted or denied in the Defence filed on 1 July 2022 [Court doc. 34], the Defendant has leave to withdraw the admissions the subject of the allegations contained in paragraphs 36(a),(b),(c)(i)-(iv) (but not sub-paragraphs 36(a)(i)-(ii)), 38, 38D, 38E, 38F, 39, 44, 61 and 62 of the FASOC.

5.   The Applications are otherwise dismissed.

6.   The Defendants pay the Plaintiffs’ costs of the Applications on the indemnity basis, fixed in the sum of $7,500.

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES 1999 – where the plaintiffs apply to the Court for a declaration that the defendants have admitted or deemed to have admitted various allegations in the statement of claim – where the defendants cross-apply for leave to withdraw their admissions or deemed admissions in their previously filed defence – where the defendants submit that leave is not required to withdraw any admission arising from earlier pleadings if they plead a ‘new’ defence under rule 385(1) in response to an amended statement of claim – where such a construction of that rule would be inconsistent with the philosophy and purpose of the UCPR.

LEGISLATION

Queensland Building and Construction Commission Act1991

Uniform Civil Procedure Rules 1999 rr 166, 168, 188, 189, 190, 382 & 385

CASES

Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116

Groves v Australian Liquor, Hospitality and Micellaneiouo Workers’ Union [2004] QSC 142

Kellehan v Hughes [2014] QDC 97

COUNSEL:

P. Travis for the Plaintiffs

S. Hogg for the Defendants

SOLICITORS:

Aitken Whyte Lawyers for the Plaintiffs

Celtic Legal for the Defendants

The plaintiffs have applied for declarations that certain allegations made in various statements of claim have been expressly admitted or deemed admitted. The defendants have variously disputed that admissions arise and/or have cross applied in the alternative for leave to withdraw any alleged admissions established by the plaintiffs. The defendants raised an argument which they relied upon as a…

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: [2022] QDC 185
Decision Date: 18 August 2022

CaseChat Overview and Summary

The case of Quilkey v Tractile Combined Pty Ltd involved the plaintiffs seeking a declaration from the court that the defendants had admitted or were deemed to have admitted certain allegations in the statement of claim. The defendants, in turn, cross-applied for leave to withdraw their admissions or deemed admissions in their previously filed defence. The defendants argued that they were entitled to withdraw any admission arising from earlier pleadings if they plead a ‘new’ defence under rule 385(1) in response to an amended statement of claim. However, the court found that such a construction of that rule would be inconsistent with the philosophy and purpose of the UCPR. The court was required to decide whether the defendants were entitled to withdraw their admissions or deemed admissions in their defence, and whether such a construction of the rule would be inconsistent with the philosophy and purpose of the UCPR.

The court found that the defendants were not entitled to withdraw their admissions or deemed admissions in their defence, as such a construction of the rule would be inconsistent with the philosophy and purpose of the UCPR. The court held that the defendants could not plead a ‘new’ defence under rule 385(1) in response to an amended statement of claim, as this would undermine the purpose of the UCPR, which is to ensure that cases are resolved efficiently and fairly. The court also found that the plaintiffs were entitled to a declaration that the defendants had admitted or were deemed to have admitted certain allegations in the statement of claim, and that the defendants were not entitled to withdraw their admissions or deemed admissions in their defence.

The court struck out certain paragraphs of the Further Amended Statement of Claim and the Defence, and deemed the defendants to admit certain allegations for the purpose of the proceeding. The court also granted the defendants leave to withdraw certain admissions, and dismissed the Applications otherwise. The court ordered the defendants to pay the plaintiffs’ costs of the Applications on the indemnity basis, fixed in the sum of $7,500.

In summary, the court found that the defendants were not entitled to withdraw their admissions or deemed admissions in their defence, as such a construction of the rule would be inconsistent with the philosophy and purpose of the UCPR. The court granted certain relief to the plaintiffs and ordered the defendants to pay the plaintiffs’ costs of the Applications.

Orders

Orders of the court

1. Paragraphs 2(e), 3(f), and 5A(e) of the Further Amended Statement of Claim filed on 29 March 2022 [Court doc. 30] (“FASOC”) are struck out with leave to re-plead.

2. The Defendants are deemed to admit the allegations contained in sub-paragraph 8(a) of the FASOC for the purpose of this proceeding.

3. Sub-paragraph 9(a) of the Defence filed on 1 July 2022 [Court doc. 34] is struck out.

4. To the extent the allegations are not admitted or denied in the Defence filed on 1 July 2022 [Court doc. 34], the Defendant has leave to withdraw the admissions the subject of the allegations contained in paragraphs 36(a),(b),(c)(i)-(iv) (but not sub-paragraphs 36(a)(i)-(ii)), 38, 38D, 38E, 38F, 39, 44, 61 and 62 of the FASOC.

5. The Applications are otherwise dismissed.

6. The Defendants pay the Plaintiffs’ costs of the Applications on the indemnity basis, fixed in the sum of $7,500.

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:	Quilkey & another v Tractile Combined Pty Ltd & others [2022] QDC 185
PARTIES:	STEVEN ROBERT QUILKEY AND Yukiko Nozaki (Plaintiffs) v TRACTILE COMBINED PTY LTD ACN 627 772 212 (First Defendant) v TRACTILE PTY LTD ACN 142 809 381 (Second Defendant) v JASON DEAN PERKINS (Third Defendant) v TRAC GROUP HOLDINGS PTY LTD ACN 115 007 540 (Fourth Defendant)
FILE NO:	794/21
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	18 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2022
JUDGE:	Porter QC DCJ
ORDER:	1. Paragraphs 2(e), 3(f), and 5A(e) of the Further Amended Statement of Claim filed on 29 March 2022 [Court doc. 30] (“FASOC”) are struck out with leave to re-plead. 2. The Defendants are deemed to admit the allegations contained in sub-paragraph 8(a) of the FASOC for the purpose of this proceeding. 3. Sub-paragraph 9(a) of the Defence filed on 1 July 2022 [Court doc. 34] is struck out. 4. To the extent the allegations are not admitted or denied in the Defence filed on 1 July 2022 [Court doc. 34], the Defendant has leave to withdraw the admissions the subject of the allegations contained in paragraphs 36(a),(b),(c)(i)-(iv) (but not sub-paragraphs 36(a)(i)-(ii)), 38, 38D, 38E, 38F, 39, 44, 61 and 62 of the FASOC. 5. The Applications are otherwise dismissed. 6. The Defendants pay the Plaintiffs’ costs of the Applications on the indemnity basis, fixed in the sum of $7,500.
CATCHWORDS:	PROCEDURE – DISTRICT COURT PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES 1999 – where the plaintiffs apply to the Court for a declaration that the defendants have admitted or deemed to have admitted various allegations in the statement of claim – where the defendants cross-apply for leave to withdraw their admissions or deemed admissions in their previously filed defence – where the defendants submit that leave is not required to withdraw any admission arising from earlier pleadings if they plead a ‘new’ defence under rule 385(1) in response to an amended statement of claim – where such a construction of that rule would be inconsistent with the philosophy and purpose of the UCPR.
LEGISLATION	Queensland Building and Construction Commission Act1991 Uniform Civil Procedure Rules 1999 rr 166, 168, 188, 189, 190, 382 & 385
CASES	Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 Groves v Australian Liquor, Hospitality and Micellaneiouo Workers’ Union [2004] QSC 142 Kellehan v Hughes [2014] QDC 97
COUNSEL:	P. Travis for the Plaintiffs S. Hogg for the Defendants
SOLICITORS:	Aitken Whyte Lawyers for the Plaintiffs Celtic Legal for the Defendants