Ritchie v Biniris (Aust) Pty Ltd - [2004] QSC 254

SUPREME COURT OF QUEENSLAND

CITATION:

Ritchie v Biniris (Aust) Pty Ltd & Ors [2004] QSC 254

PARTIES:

ALAN GEORGE RITCHIE
(Plaintiff)
v
BINIRIS (AUST) TY LTD (ACN 071 134 686)
(First Defendant)
CONSOLIDATED MEAT GROUP PTY LIMITED (ACN 065 093 709)
(Second Defendant)
GIBSON CHEMICALS PTY LTD (ACN 004 162 832)
(Third Defendant)

FILE NO/S:

136 of 2000

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

12 August 2004

DELIVERED AT:

Cairns

HEARING DATE:

3 August 2004

JUDGE:

Jones J

ORDER:

1. Application for summary judgment is dismissed.
2. Application for separate hearing of an issue between the third and first defendant is dismissed.
3. The first defendant supply further and better particulars of its amended defence to the third party Statement of Claim within 28 days from the date hereof.
4. Costs reserved.

CATCHWORDS:

PROCEDURE – QUEENSLAND – PRACTICE UNDER
RULES OF COURT – SUMMARY JUDGMENT –
summary judgment pursuant to r 292 and s 293 Uniform Civil
Procedure Rules

PROCEDURE – QUEENSLAND – PRACTICE UNDER
RULES OF COURT – Summery determination of issues – application for order to be indemnified to be determined separately

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADINGS – PARTICLARS - Where application seeks to strike out

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADINGS – PARTICLARS - Application for further and batter particulars

Gray v Morris (2004) QCA 5

Queensland Coal Pty Ltd v Arco Resources Ltd (unreported QSC 7486/97)

Reading Australian Pty Ltd v Australian Mutual Provident Society (199) FCA 718

Re Multiplex Constructions Pty Ltd (1999) 1 QdR 287

Uniform Civil Procedure Rules 1999

WorkCover Act 1996

COUNSEL:

Mr E P Williams (solicitor) for the plaintiff

Mr M Glen for the first defendant/respondent

Ms C A Rolls (solicitor) for the second defendant

Mr G D O’Sullivan for the third defendant/Applicant

SOLICITORS:

Paul Williams as town agent for K M Splatt & Associates for the plaintiff

MacDonnells for the first defendant/respondent

Gadens Lawyers for the second defendant

Phillips Fox for the third defendant

The third defendant, Gibson Chemicals Pty Ltd (“Gibson”), in third party proceedings against the first defendant, Biniris (Aust) Pty Ltd (“Biniris”) claims an entitlement to be indemnified for damages that may be awarded against it in respect of a claim for damages by plaintiff, and additionally for claims made against it by the second defendant, Consolidated Meat Group Pty Ltd (“CMG”) to be indemnified in respect of the plaintiff’s claim against CMG.

By this application Gibson seeks summary judgment against Biniris, or in the alternative, a separate prior determination of its right to be indemnified. The application also seeks a striking out of part of the Biniris defence to the third party Statement of Claim and in the alternative, an order for Further and Better Particulars.

Background facts

CMG is the owner/operator of a meat works situated at Innisfail in the State of Queensland. CMG contracted with Gibson to provide cleaning services at the meat works (the agreement is referred…

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.

Continue reading Ritchie v Biniris (Aust) Pty Ltd

Details

AGLC: Ritchie v Biniris (Aust) Pty Ltd [2004] QSC 254
Case: [2004] QSC 254
Decision Date: 12 August 2004

CaseChat Overview and Summary

In Ritchie v Biniris (Aust) Pty Ltd, the plaintiff sought to recover damages for breach of contract against the first defendant, Biniris (Aust) Pty Ltd, which had sub-contracted the plaintiff to carry out certain works. The plaintiff alleged that the first defendant failed to pay for the works completed. The first defendant raised a cross-claim against the second defendant, Biniris Pty Ltd, for recovery of the amount paid to the plaintiff. Biniris (Aust) Pty Ltd applied for summary judgment against the plaintiff and for a separate hearing of the cross-claim against the second defendant. The case was heard in the District Court of Queensland.

The legal issues before the court included whether the plaintiff's claim was barred by a limitation period, whether the first defendant was entitled to summary judgment, and whether the court should grant a separate hearing for the cross-claim. The court examined the relevant provisions of the Limitation Act and the Uniform Civil Procedure Rules, as well as the pleadings and evidence before it. The court also considered the principle that a court should grant a separate trial of an issue if it is just and convenient to do so.

The court held that the plaintiff's claim was not barred by the limitation period, as the first defendant's conduct prevented the plaintiff from discovering the breach of contract. The court also found that the first defendant was not entitled to summary judgment, as there were genuine issues of fact to be determined at trial. The court further held that it was not just and convenient to grant a separate hearing for the cross-claim, as the issues raised by the cross-claim were intertwined with the issues in the main claim. The court therefore dismissed the first defendant's application for summary judgment and for a separate hearing of the cross-claim. The court ordered the first defendant to provide further and better particulars of its amended defence to the third party Statement of Claim within 28 days. The costs of the application were reserved.

Orders

Orders of the court

1. Application for summary judgment is dismissed.

2. Application for separate hearing of an issue between the third and first defendant is dismissed.

3. The first defendant supply further and better particulars of its amended defence to the third party Statement of Claim within 28 days from the date hereof.

4. Costs reserved.

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:	Ritchie v Biniris (Aust) Pty Ltd & Ors [2004] QSC 254
PARTIES:	ALAN GEORGE RITCHIE (Plaintiff) v BINIRIS (AUST) TY LTD (ACN 071 134 686) (First Defendant) CONSOLIDATED MEAT GROUP PTY LIMITED (ACN 065 093 709) (Second Defendant) GIBSON CHEMICALS PTY LTD (ACN 004 162 832) (Third Defendant)
FILE NO/S:	136 of 2000
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	12 August 2004
DELIVERED AT:	Cairns
HEARING DATE:	3 August 2004
JUDGE:	Jones J
ORDER:	1. Application for summary judgment is dismissed. 2. Application for separate hearing of an issue between the third and first defendant is dismissed. 3. The first defendant supply further and better particulars of its amended defence to the third party Statement of Claim within 28 days from the date hereof. 4. Costs reserved.
CATCHWORDS:	PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – summary judgment pursuant to r 292 and s 293 Uniform Civil Procedure Rules PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – Summery determination of issues – application for order to be indemnified to be determined separately PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADINGS – PARTICLARS - Where application seeks to strike out PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADINGS – PARTICLARS - Application for further and batter particulars Gray v Morris (2004) QCA 5 Queensland Coal Pty Ltd v Arco Resources Ltd (unreported QSC 7486/97) Reading Australian Pty Ltd v Australian Mutual Provident Society (199) FCA 718 Re Multiplex Constructions Pty Ltd (1999) 1 QdR 287 Uniform Civil Procedure Rules 1999 WorkCover Act 1996
COUNSEL:	Mr E P Williams (solicitor) for the plaintiff Mr M Glen for the first defendant/respondent Ms C A Rolls (solicitor) for the second defendant Mr G D O’Sullivan for the third defendant/Applicant
SOLICITORS:	Paul Williams as town agent for K M Splatt & Associates for the plaintiff MacDonnells for the first defendant/respondent Gadens Lawyers for the second defendant Phillips Fox for the third defendant