Robielle Pty Ltd v Pilsack Pty Ltd (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Robielle Pty Ltd v Pilsack Pty Ltd & Ors (No 2) [2010] QDC 339

PARTIES:

ROBIELLE PTY LTD ACN 111 205 282

Plaintiff

v

PILSACK PTY LTD ACN 065 055 389

First Defendant

and

BARRY ROBERT FISHER

Second Defendant

and

AAA ACCOUNTING PTY LTD ACN 078 837 000

Third Defendant

and

RODNEY SOMERVILLE

Fourth Defendant

FILE NO:

304 of 2006

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

3 September 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

9 July 2010, 5 August and 20 August 2010

JUDGE:

K S Dodds, DCJ

ORDER:

I order the plaintiff’s application filed 8 June 2010, the subject of my reasons delivered 5 August 2010, be dismissed.

I order that the first and second defendants have leave to withdraw the deemed admissions identified in the reasons of the court in this proceeding, delivered on 5 August 2010.

I order that the first and second defendants have leave to file a second further amended defence of the first and second defendants in terms of exhibit 1 to the affidavit of Christopher Robert Sutton filed 18 August 2010.

I order the application by the first and second defendants for further and better particulars be dismissed.

CATCHWORDS:

APPLICATION – by defendant for leave to withdraw deemed admissions – application for leave to file an amended defence

Uniform Civil Procedure Rules 1999 r 5, r 166, r 188, r 190 r 292, r 375

Cases cited:

Cassie v Bogdan & Anor [2004] QSC 275
Coopers Brewery v Panfida Foods Ltd (1992) 26 NSWLR 738
Equuscorp Pty Ltd v Orazio [2000] QCA 117
Equuscorp Pty Ltd v Orazio [1999] QSC 354
House v the King (1936) 55 CLR 499
Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR
146

COUNSEL:

J W Lee for the plaintiff

S M Gerber for the first and second defendants

No appearance for the third and fourth defendants

SOLICITORS:

Adrian Hawkes Lawyers for the Plaintiff

Sutton’s Law for the first and second defendants

No appearance for the third and fourth defendants

1. On 5 August 2010 I published my reasons in the matter of an application by the plaintiff company for judgment against the first and second defendants (the defendants) for $93,000 for breach of a compromise agreement.  The application was based upon deemed admissions – rules 166 (4) and (5) of the Uniform Civil Procedure Rules 1999 (UCPR) with respect to the plaintiff’s pleading of the compromise agreement.

1. I concluded that the defendants were to be taken to have admitted certain allegations of fact:

   §the first and second defendants offered the plaintiff $93,000 in full and final settlement of the claim;

   §the plaintiff accepted the offer by executing an acceptance where required on the letter, signing it and returning it;

   §it was an implied term of the contract the sum of $93,000 would be paid within a reasonable time;

   §the first and second defendants had not…