Sandy's Swim Pty Ltd v Morgan - [2022] QDC 131

DISTRICT COURT OF QUEENSLAND

CITATION:

Sandy’s Swim Pty Ltd v Morgan [2022] QDC 131

PARTIES:

SANDY’S SWIM PTY LTD

(ABN 73 641 260 451)

(plaintiff)

v

LANCE MORGAN

(defendant)

FILE NO:

2508 of 2021

DIVISION:

Civil

PROCEEDING:

Applications

ORIGINATING COURT:

District Court

DELIVERED ON:

9 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2022

JUDGE:

Dearden DCJ

ORDER:

1.   The plaintiff’s application for summary judgment filed 11 April 2022 and the plaintiff’s application filed 21 April 2022 are dismissed.

2.   The defendant’s application for security for costs is granted.

3.   The parties are to participate in a mediation within 30 days of this order or such further period as the parties mutually agree, in writing, on the following terms:

(a)   The defendant’s solicitor is to provide the names of two counsel to the plaintiff within 7 days of this order.

(b) The plaintiff is to provide the names of two counsel to the defendant’s solicitors within 7 days of this order.

(c)   The parties are to use best endeavours to negotiate the selection of a mediator within 10 days of this order.

(d) The defendant’s solicitor is to notify the mediator in writing (copied to the plaintiff) within 14 days of this order.

(e)   7 days prior to mediation, the defendant’s solicitor is to prepare a brief to the mediator containing the pleadings and up to five documents selected by the plaintiff’s and up to five documents selected by the defendant.

(f)    The costs of the mediator is to be paid 3 days before the mediation in the following shares:

  (i)   50% - the plaintiff; and

  (ii) 50% - the defendant.

4.   If the proceedings do not settle by mediation, then within 30 days of the filing of a mediator’s certificate that parties have not resolved their dispute, the plaintiff shall give security for the defendant’s costs of the proceeding in the sum of $60,000 in a form acceptable to the Registrar of the District Court of Queensland.

5.   The plaintiff pay the defendant’s costs of the plaintiff’s applications filed 11 April 2022 and 21 April 2022 and the defendant’s application filed 19 April 2022.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – WHEN GRANTED OR REFUSED AND CONDITIONS – where the plaintiff seeks an order for summary judgment – where the defendant submits there is a dispute as to who the lessee is – where the defendant submits it has reasonable prospects of success

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – PLAINTIFF’S OR APPLICANT’S IMPECUNIOSITY – GENERALLY – where the defendant seeks security for costs of the proceeding – where the defendant submits there is a reasonable belief that the corporation would be unable to pay the defendant’s costs if ordered to pay them – where the plaintiff seeks the application be dismissed for abuse of process

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: [2022] QDC 131
Decision Date: 9 June 2022

CaseChat Overview and Summary

Sandy's Swim Pty Ltd was the plaintiff and Morgan was the defendant in a case before the District Court of Queensland. The plaintiff sought summary judgment on its claim, while the defendant opposed this application, arguing there was a genuine dispute regarding the identity of the lessee and that it had reasonable prospects of successfully defending the proceedings. Additionally, the defendant applied for security for the plaintiff's costs of the proceeding, asserting a reasonable belief that the plaintiff would be unable to pay the defendant's costs if ordered to do so.

The court had to determine whether there were genuine issues that needed to be resolved through a full trial, thereby negating the plaintiff's entitlement to summary judgment. The court also had to assess the defendant's application for security for costs, considering whether the plaintiff was impecunious and if the defendant had a reasonable belief that the plaintiff would be unable to pay the defendant's costs if ordered to do so. The court referenced the relevant rules and principles, including Deputy Commissioner of Taxation v Salcedo, to understand the application of UCPR r 292.

The court dismissed the plaintiff's application for summary judgment, finding that the defendant had raised genuine issues that required a full trial. The court granted the defendant's application for security for costs, concluding that the defendant had a reasonable belief that the plaintiff would be unable to pay the defendant's costs if ordered to do so. The court ordered the parties to participate in a mediation and mandated that if the proceedings did not settle by mediation, the plaintiff would need to provide security for the defendant's costs of the proceeding.

The court made several orders, including dismissing the plaintiff's applications for summary judgment and security for costs, ordering mediation between the parties, and requiring the plaintiff to provide security for the defendant's costs if the dispute was not resolved by mediation. The court also ordered the plaintiff to pay the defendant's costs of the proceedings.

Orders

Orders of the court

1. The plaintiff’s application for summary judgment filed 11 April 2022 and the plaintiff’s application filed 21 April 2022 are dismissed.

2. The defendant’s application for security for costs is granted.

3. The parties are to participate in a mediation within 30 days of this order or such further period as the parties mutually agree, in writing, on the following terms:

(a) The defendant’s solicitor is to provide the names of two counsel to the plaintiff within 7 days of this order.

(b) The plaintiff is to provide the names of two counsel to the defendant’s solicitors within 7 days of this order.

(d) The defendant’s solicitor is to notify the mediator in writing (copied to the plaintiff) within 14 days of this order.

(e) 7 days prior to mediation, the defendant’s solicitor is to prepare a brief to the mediator containing the pleadings and up to five documents selected by the plaintiff’s and up to five documents selected by the defendant.

(f) The costs of the mediator is to be paid 3 days before the mediation in the following shares:

(i) 50% - the plaintiff; and

(ii) 50% - the defendant.

4. If the proceedings do not settle by mediation, then within 30 days of the filing of a mediator’s certificate that parties have not resolved their dispute, the plaintiff shall give security for the defendant’s costs of the proceeding in the sum of $60,000 in a form acceptable to the Registrar of the District Court of Queensland.

5. The plaintiff pay the defendant’s costs of the plaintiff’s applications filed 11 April 2022 and 21 April 2022 and the defendant’s application filed 19 April 2022.

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

The application proceeds under UCPR r 292(2) which relevantly provides:-“292 Summary judgment for plaintiff(1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.(2)If the court is satisfied that—(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and(b) there is no need for a trial of the claim or the part of the claim;the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”[12][12]UCPR r 292(2). The leading case on the application of UCPR r 292 is Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, where Williams JA, with whom McMurdo P agreed, stated:[13]“[11] … rule 292 and r 293 brought about significant changes in the law and procedure relating to summary judgment. The wording of r 292 and r 293 is clearly based on the drafting used in part 24 of the Civil Procedure Rules (UK) which came into force in the United Kingdom in 1999. In Swain v Hillman [2001] 1 All ER 91, the Court of Appeal had to consider rule 24.2, the equivalent of rule 292. Lord Woolf MR said at 92:‘The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word real distinguishes fanciful prospects of success, or… they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.’"Later, again speaking of the rule, he said at 94: ‘It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.’” [Swain v Hillman [2001] 1 All ER 91].In his reasons at 95, Pill LJ accepted that the term “real” was used in contradistinction to “fanciful.” The third member of the court, Judge LJ, whilst recognising that summary judgment was a “serious step,” went on to say at 96:“This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable.”[14] [13]Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.[14]Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 [11]. In the same case, McMurdo P, in agreeing with Williams JA stated:[15]“[2]UCPR r 292 and r 293 should be applied using the clear and unambiguous language and keeping in mind the purpose of the UCPR to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.[3]Nothing in the UCPR, however, detracts from the well‑established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases.”[16][15]Ibid [2].[16]Ibid [2]-[3].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sandy’s Swim Pty Ltd v Morgan [2022] QDC 131
PARTIES:	SANDY’S SWIM PTY LTD (ABN 73 641 260 451) (plaintiff) v LANCE MORGAN (defendant)
FILE NO:	2508 of 2021
DIVISION:	Civil
PROCEEDING:	Applications
ORIGINATING COURT:	District Court
DELIVERED ON:	9 June 2022
DELIVERED AT:	Brisbane
HEARING DATE:	28 April 2022
JUDGE:	Dearden DCJ
ORDER:	1. The plaintiff’s application for summary judgment filed 11 April 2022 and the plaintiff’s application filed 21 April 2022 are dismissed. 2. The defendant’s application for security for costs is granted. 3. The parties are to participate in a mediation within 30 days of this order or such further period as the parties mutually agree, in writing, on the following terms: (a) The defendant’s solicitor is to provide the names of two counsel to the plaintiff within 7 days of this order. (b) The plaintiff is to provide the names of two counsel to the defendant’s solicitors within 7 days of this order. (c) The parties are to use best endeavours to negotiate the selection of a mediator within 10 days of this order. (d) The defendant’s solicitor is to notify the mediator in writing (copied to the plaintiff) within 14 days of this order. (e) 7 days prior to mediation, the defendant’s solicitor is to prepare a brief to the mediator containing the pleadings and up to five documents selected by the plaintiff’s and up to five documents selected by the defendant. (f) The costs of the mediator is to be paid 3 days before the mediation in the following shares: (i) 50% - the plaintiff; and (ii) 50% - the defendant. 4. If the proceedings do not settle by mediation, then within 30 days of the filing of a mediator’s certificate that parties have not resolved their dispute, the plaintiff shall give security for the defendant’s costs of the proceeding in the sum of $60,000 in a form acceptable to the Registrar of the District Court of Queensland. 5. The plaintiff pay the defendant’s costs of the plaintiff’s applications filed 11 April 2022 and 21 April 2022 and the defendant’s application filed 19 April 2022.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – WHEN GRANTED OR REFUSED AND CONDITIONS – where the plaintiff seeks an order for summary judgment – where the defendant submits there is a dispute as to who the lessee is – where the defendant submits it has reasonable prospects of success PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – PLAINTIFF’S OR APPLICANT’S IMPECUNIOSITY – GENERALLY – where the defendant seeks security for costs of the proceeding – where the defendant submits there is a reasonable belief that the corporation would be unable to pay the defendant’s costs if ordered to pay them – where the plaintiff seeks the application be dismissed for abuse of process