Robert Bax & Associates v Cavenham Pty Ltd - [2011] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53

PARTIES:

ROBERT BAX & ASSOCIATES
(appellant)
v
CAVENHAM PTY LTD
ACN 003 738 672
(respondent)

FILE NO/S:

Appeal No 9967 of 2010
SC No 14239 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2011

JUDGES:

Margaret McMurdo P, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Allow the appeal with costs of the appeal;

2. Vary order 5 made in the Trial Division on 3 September 2010 by deleting “and 15”.

CATCHWORDS:

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – where part of the appellant’s defence was held to be inconsistent by the learned primary judge – where part of the appellant’s defence was struck out – where r 166 of the Uniform Civil Procedure Rules 1999 (Qld) applied – whether the orders made below should be set aside

Uniform Civil Procedure Rules 1999 (Qld), r 166, r 171, r 223

COUNSEL:

R P S Jackson for the appellant
K N Wilson SC for the respondent

SOLICITORS:

Brian Bartley & Associates for the appellant
Shine Lawyers for the respondent

MARGARET McMURDO P: I agree with White JA’s reasons for allowing this appeal and with the orders proposed.

FRASER JA: I agree with the reasons for judgment of White JA and the orders proposed by her Honour.

WHITE JA: The respondent, Cavenham Pty Ltd, has commenced proceedings against the appellant firm of solicitors (“the firm”) for damages for breach of the contract of retainer, alternatively, for negligence arising out of an alleged failure to advise Cavenham that a mortgage obtained to secure the repayment of a loan should have been registered the better to secure the loan. There are other allegations of breach, but that is the principal complaint.

The parties brought applications in the Trial Division for the resolution of several interlocutory disputes which were heard on 9 July 2010. The firm sought further and better particulars of the amended statement of claim. The learned primary judge ordered that they be provided. In its application, Cavenham sought an order for further and better disclosure and an order that the firm file and serve an affidavit pursuant to r 223(2) of the Uniform Civil Procedure Rules. Orders were made. Cavenham also sought an order pursuant to r 171 that paras 6, 7(a) and 15 of the defence be struck out and the defence be amended. Initially her Honour had ordered that those paragraphs be struck out but after further submissions on the form of orders and costs she ordered only paras 7(a) and 15 be struck out.

Paragraph 15 was struck out on the ground that it contradicted para 6 and, in that fashion, was embarrassing. Of all the orders made against it…

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] QCA 53
Decision Date: 25 March 2011

CaseChat Overview and Summary

Robert Bax & Associates sought to appeal a decision from the Trial Division which dismissed their claim against Cavenham Pty Ltd. The Trial Division had struck out part of the appellant's defence on the basis that it was inconsistent with another part of the defence, applying rule 166 of the Uniform Civil Procedure Rules 1999 (Qld). The appellant argued that the orders made below should be set aside. The legal issue before the court was whether the Trial Division's orders were justified under the rules of court, specifically rule 166, which allows for parts of pleadings to be struck out if they are inconsistent.

The court examined the appellant's defence and found that the Trial Division was correct to identify inconsistency between two parts of the defence. Despite the appellant's argument that the inconsistencies were not material, the court held that the Trial Division was within its rights to strike out the inconsistent part of the defence. The court found that the Trial Division's orders were consistent with the purpose of the rules, which is to ensure that pleadings are clear and not self-contradictory. The court also noted that the appellant had not demonstrated any prejudice resulting from the striking out of part of the defence, and thus the orders were not manifestly unjust.

As a result, the appeal was allowed with costs of the appeal. The orders of the Trial Division were varied to reflect the deletion of a specific point in the orders, aligning with the findings of the court. The court's decision emphasised the importance of consistency in pleadings and the Trial Division's discretion in applying rule 166 to ensure the fairness and efficiency of litigation.

Orders

Orders of the court

1. Allow the appeal with costs of the appeal;

2. Vary order 5 made in the Trial Division on 3 September 2010 by deleting “and 15”.

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:	Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53
PARTIES:	ROBERT BAX & ASSOCIATES (appellant) v CAVENHAM PTY LTD ACN 003 738 672 (respondent)
FILE NO/S:	Appeal No 9967 of 2010 SC No 14239 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2011
JUDGES:	Margaret McMurdo P, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal with costs of the appeal; 2. Vary order 5 made in the Trial Division on 3 September 2010 by deleting “and 15”.
CATCHWORDS:	PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – where part of the appellant’s defence was held to be inconsistent by the learned primary judge – where part of the appellant’s defence was struck out – where r 166 of the Uniform Civil Procedure Rules 1999 (Qld) applied – whether the orders made below should be set aside Uniform Civil Procedure Rules 1999 (Qld), r 166, r 171, r 223
COUNSEL:	R P S Jackson for the appellant K N Wilson SC for the respondent
SOLICITORS:	Brian Bartley & Associates for the appellant Shine Lawyers for the respondent