Reid & Smith v Hall & Petrie

[2011] QDC 222

[2011] QDC 222

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 179 of 2011

KEVIN JOHN REID AND HEATHER MARGARET SMITH	Applicants/Plaintiffs
and
BRUCE HALL AND MELISSA ANNEL PETRIE	Respondents/Defendants

SOUTHPORT

DATE 22/08/2011

ORDER

HIS HONOUR:  In this matter there is no law that provides for a stay of today's application merely because the defendants have appointed a controlling trustee.  The application is for an amended defence and counterclaim to be struck out in whole or in part.  The application has been on foot since the 18th of July 2011 and it was last Friday, the 19th of August 2011, that the controlling trustee was appointed.

It seems to me that I should proceed with the application, there being no other good reason, in my opinion, not to.  Therefore I refuse the defendant's application for an adjournment of today's application and I will proceed with the application.

...

HIS HONOUR:  The defendant's defence and counterclaim, filed herein, be struck out.  The defendants have until 12 September 2011 to file and serve any further defence and counterclaim.  In default of filing and serving a further defence by 12 September 2011, the plaintiffs be at liberty to enter judgment against the defendants for the plaintiff's claim.

...

HIS HONOUR:  The plaintiff's claim is for $185,140 for equitable contribution from the defendants as co-sureties.  There seems to be no dispute that the plaintiffs and the defendants jointly and severely borrowed a sum of money from the ANZ Bank.  Default occurred and the bottom line is that the plaintiffs have paid more than their share.

The co-sureties defence does not plead with particularity the basis for any defence and the counterclaim discloses no reasonable cause of action against the plaintiffs.  It may be that upon some of the allegations being made by the defendants, in the notice of intention to defend and counterclaim, that other parties may have a liability to the defendants as to which I do not give a concluded opinion.  Nevertheless those possible claims are not raised properly against the plaintiffs in the pleading.  Therefore I have come to the view that the application should be acceeded to, that is, the defence and counterclaim should be struck out. 

I order the defendant's defence and counterclaim filed herein be struck out. 

I order the defendants have until the 12th of September 2011 to file and serve any further defence and counterclaim. 

I also order in default of the defendants filing and serving a further defence by that date, the 12th of September 2011, the plaintiffs be at liberty to seek to enter judgment before the Registrar against the defendants for the plaintiff's claim herein under Rule 283 and for the costs and interest.

I order the defendants pay the plaintiff's costs of this application on the standard basis.