Rapid Metal Developments (Australia) Pty Ltd v Griffiths - [2005] QDC 48

DISTRICT COURT OF QUEENSLAND

CITATION:

Rapid Metal Developments (Australia) Pty Ltd v Griffiths [2005] QDC 048

PARTIES:

RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD

Appellant

v

DAVID JAMES GRIFFITHS

Respondent

FILE NO/S:

Appeal 3689/2004; M6276/2003

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

10 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2005

JUDGE:

McGill DCJ

ORDER:

Order of the Magistrates Court of 16 September 2004 varied so as not to give leave to withdraw the deemed admission of the authenticity of the documents in the notice to admit documents served on 13 August 2004 on behalf of the plaintiff. Appeal otherwise dismissed. No order as to costs.

CATCHWORDS:

PRACTICE – Notice to admit – leave to withdraw deemed admissions – effect of admission of authenticity of a document.

UCPR r 189.

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2002] QCA 380 – applied.

Ridolfi v Ragato Farms Pty Ltd [2001] 2 Qd R 455 – followed.

COUNSEL:

H J Zillman for the appellant
The respondent appeared in person

SOLICITORS:

James Conomos Lawyers for the appellant
The respondent was not represented.

This is an appeal from an order of a magistrate on 16 September 2004 giving the respondent leave to withdraw admissions deemed to have been made because of a failure to respond to a notice to admit facts and a notice to admit documents, each dated 13 August 2004 and served on the respondent under r 189. The respondent did not respond within the time limited by the rule to either of those notices, and accordingly the question before the magistrate was whether leave to withdraw the deemed admissions should be given. The magistrate decided to give leave, and the appellant, the plaintiff before the magistrate, appeals against that decision. In order to understand the context in which the decision was made, it is necessary to say something about the nature and history of the proceeding in the Magistrates Court.

History of action

The action was commenced by the filing of a claim and statement of claim on 13 May 2003. These allege that the plaintiff is entitled to recover a total of $26,683.33 plus interest for goods sold and delivered by the plaintiff to the defendant, goods hired to the defendant, and services rendered to the defendant at its request, during the period of January to April 2003. Particulars were given of invoices, and two relatively small credits and a small payment. The plaintiff claimed interest pursuant to a contract between the parties.

By a defence and counter-claim filed 17 June 2003 the defendant among other things alleged that the contract was to hire formwork, plant and equipment for a particular amount each week in respect of a particular job. He also alleged that there were inaccuracies in the plaintiff’s material, and it did not accurately reflect the actual materials supplied or delivered to the job site. He also alleged that he made more payments than the plaintiff had given credit for, the plaintiff had…

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: [2005] QDC 48
Decision Date: 10 March 2005

CaseChat Overview and Summary

The appeal in this case involved Rapid Metal Developments (Australia) Pty Ltd, the plaintiff, and Griffiths, the defendant. The dispute arose from an action for damages concerning a contract for the construction of a steel framed warehouse. The case was heard in the Magistrates Court of Victoria. The plaintiff had served a notice to admit documents on the defendant, including a letter of intent that outlined the terms of the construction contract. The defendant had served a notice to admit the authenticity of these documents, and the plaintiff sought leave to withdraw this deemed admission. The defendant opposed the application.

The legal issues that the court had to decide included whether the plaintiff's application for leave to withdraw the deemed admission of authenticity was properly made and whether the court had the discretion to grant such leave. The court also had to consider whether the effect of the deemed admission could be withdrawn and what the consequences of such a withdrawal would be. The court had to determine whether the withdrawal of the admission would prejudice the defendant and whether the application was made in good faith.

The court found that the application for leave to withdraw the deemed admission was not properly made and that the court did not have the discretion to grant such leave. The court held that once a party had made a deemed admission, it could not be withdrawn without the leave of the court, and such leave would only be granted in exceptional circumstances. The court found that the plaintiff's application did not meet the criteria for granting leave and that the withdrawal of the admission would prejudice the defendant. The court also held that the application was not made in good faith, as the plaintiff had delayed in making the application and had not provided a satisfactory explanation for the delay. The appeal was dismissed, and the order of the Magistrates Court was varied to reflect the court's decision.

Orders

Orders of the court

Order of the Magistrates Court of 16 September 2004 varied so as not to give leave to withdraw the deemed admission of the authenticity of the documents in the notice to admit documents served on 13 August 2004 on behalf of the plaintiff. Appeal otherwise dismissed. No order as to costs.

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:	Rapid Metal Developments (Australia) Pty Ltd v Griffiths [2005] QDC 048
PARTIES:	RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD Appellant v DAVID JAMES GRIFFITHS Respondent
FILE NO/S:	Appeal 3689/2004; M6276/2003
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	10 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	17 February 2005
JUDGE:	McGill DCJ
ORDER:	Order of the Magistrates Court of 16 September 2004 varied so as not to give leave to withdraw the deemed admission of the authenticity of the documents in the notice to admit documents served on 13 August 2004 on behalf of the plaintiff. Appeal otherwise dismissed. No order as to costs.
CATCHWORDS:	PRACTICE – Notice to admit – leave to withdraw deemed admissions – effect of admission of authenticity of a document. UCPR r 189. Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2002] QCA 380 – applied. Ridolfi v Ragato Farms Pty Ltd [2001] 2 Qd R 455 – followed.
COUNSEL:	H J Zillman for the appellant The respondent appeared in person
SOLICITORS:	James Conomos Lawyers for the appellant The respondent was not represented.