Schebella v Schebella

Case [2021] QDC 117

DISTRICT COURT OF QUEENSLAND

CITATION:

Schebella v Schebella & Ors [2021] QDC 117

PARTIES:

KEVIN CHARLES SCHEBELLA

(Plaintiff)

v

MARK ANDREW SCHEBELLA

(First Defendant)

and
KAREN JANE SCHEBELLA
(Second Defendant)
and
BLACSKY PTY LTD (ACN 079 291 919) (deregistered) (as trustee of the Schebella Family Trust)

(Third Defendant)

FILE NO:

D121/2019

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

23 June 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

25 November 2020

JUDGE:

Long SC, DCJ

ORDER:

1.   The amendments made in the amended statement of claim filed on 14 September 2020, are disallowed.

2. Paragraph 26 of the statement of claim filed on 8 August 2019, is struck out.

CATCHWORDS:

APPLICATION – PRACTICE AND PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – AMENDMENT – where the plaintiff has filed an amended statement of claim – where the amendments to the statement of claim are opposed by the first and second defendant – where the first and second defendant have applied for the amendments to the statement of claim to be disallowed pursuant to UCPR r 379 – where the first and second defendant have applied for paragraph 26 of the amended statement of claim to be struck out on the ground of there being no basis in law for the allegation – whether the amendments to the statement of claim should be disallowed – whether paragraph 26 of the amended statement of claim should be struck out

LEGISLATION:

Civil Proceedings Act 2011 (Qld)
Corporations Act 2001 (Cth), ss 197, 601AD(1)
Trusts Act 1973 (Qld), s 113
Uniform Civil Procedure Rules 1999 (Qld), rr 161, 171, 375, 376, 378, 379

CASES:

Central Sawmilling No. 1 P/L & Ors v State of Queensland [2003] QCA 311
Coco v Ord Minnett Ltd [2012] QSC 324
Denham Bros Limited v W Freestone Leasing Pty Ltd [2002] QSC 307
Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hartnett v Hynes [2009] QSC 225
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85
McMahon v National Foods Milk Ltd [2009] VSCA 153
Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd [2006] VSC 42
Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2006) 149 FCR 395
Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660
COUNSEL:

White, M for the Plaintiff

Tan, S J for the First and Second Defendant
SOLICITORS:

Black Bear Legal Pty Ltd for the Plaintiff
Tucker & Cowen Solicitors for the First and Second Defendant

No appearance entered for the Third Defendant

Introduction

[1]       In this matter, the first and second defendants have applied to this Court for orders for disallowance of the amendments made to the statement of claim,[1] pursuant to the Uniform Civil Procedure Rules 1999 (“UCPR”) r 379 and also for paragraph 26 of the amended statement of claim to be struck out pursuant to UCPR

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Details
AGLC
Schebella v Schebella [2021] QDC 117
Case
[2021] QDC 117
Decision Date

CaseChat Overview and Summary

The case of Schebella v Schebella involved the plaintiff filing an amended statement of claim, which was opposed by the first and second defendants. The defendants sought the disallowance of the amendments to the statement of claim under the Uniform Civil Procedure Rules (UCPR) and applied for a particular paragraph in the amended statement of claim to be struck out due to a perceived lack of legal basis. The central issues before the court were whether the amendments should be disallowed and whether a specific paragraph should be removed from the statement of claim. The court's task was to carefully consider the legal grounds for these applications and assess whether the amendments were permissible under the rules and whether the paragraph in question was legally tenable.

In evaluating the defendants' applications, the court reviewed the procedural aspects of the amendments to the statement of claim, assessing whether they complied with the relevant rules. Additionally, the court examined the substantive content of the paragraph in question to determine if it was legally valid. The court found that the amendments were not in accordance with the rules and that the paragraph in question lacked a legal basis, leading to the conclusion that the amendments should be disallowed and the paragraph should be struck out. This decision was based on the court's interpretation of the UCPR and the specific circumstances of the case.

The court's reasoning was grounded in the procedural rules outlined in the UCPR and the necessity to maintain the integrity and fairness of the legal process. By disallowing the amendments and striking out the specified paragraph, the court aimed to ensure that the proceedings adhered to legal standards and that the claims were supported by valid legal grounds. The outcome reflects the court's role in overseeing the procedural aspects of litigation to maintain the efficiency and fairness of the legal system.

In summary, the court disallowed the amendments made in the amended statement of claim and struck out paragraph 26 of the original statement of claim, as per the orders outlined in the decision. This decision underscores the importance of adherence to procedural rules and the requirement for claims to be legally substantiated.

Orders

Orders of the court

1. The amendments made in the amended statement of claim filed on 14 September 2020, are disallowed.

2. Paragraph 26 of the statement of claim filed on 8 August 2019, is struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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