Schneider v Alusa Pty Ltd

Case [2011] QSC 366


SUPREME COURT OF QUEENSLAND

CITATION:

Schneider v Alusa Pty Ltd & Ors [2011] QSC 366

PARTIES:

JOHANN JOSEF SCHNEIDER
(Plaintiff)
v
ALUSA PTY LTD (ACN 084 846 533)
(First Defendant)
ALAN ROSS GAYNOR
(Second Defendant)
URSULA JANE GAYNOR
(Third Defendant)

FILE NO/S:

324 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

7 October 2011

DELIVERED AT:

Cairns

HEARING DATE:

30 September 2011

JUDGE:

Henry J

ORDER:

1. The application to dismiss the plaintiff’s claim for want of prosecution is dismissed.
2. The application to strike out paragraphs 2-7 of the Statement of Claim is dismissed.
3. The respondent is to provide answer to the applicant’s request for further and better particulars of 5 July 2010 by way of an Amended Statement of Claim to be filed and served by 4 pm 21 October 2011.
4. In the absence of agreement between the parties, acceptable to the Registrar, as to the manner and date of argument as to costs, I will hear the parties as to costs at 9.30 am 21 October 2011.

CATCHWORDS:

PROCEDURE – UNIFORM CIVIL PROCEDURES RULES – APPLICATION TO DISMISS FOR WANT OF PROSECUTION – APPLICATION TO STRIKE OUT PLEADING – where the respondent failed to provide further and better particulars – where the applicant sought to dismiss for want of prosecution prior to filing a defence – where the applicant sought to strike out particulars as disclosing no reasonable cause of action.

COUNSEL:

T W Quinn for the applicant/defendants
J Trevino for the respondent/plaintiff

SOLICITORS:

Lyne & Co for the applicant/defendants
Preston Law for the respondent/plaintiff

  1. The applicant seeks an order dismissing the plaintiff’s claim for want of prosecution in the exercise of the Court’s inherent jurisdiction or alternatively striking out paragraphs 2 – 7 inclusive of the Statement of Claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and the inherent jurisdiction of the Court.

Background

  1. The plaintiff’s claim seeks the taking of an account of monies received in respect of cattle allegedly removed by the defendants from a property known as St Ronans and in respect of the progeny of such cattle.  In the alternative the plaintiff seeks $805,212.56 damages for conversion of the cattle and their progeny.

  1. The evidence filed on the application explains that St Ronans was one of three adjoining cattle properties, the other two being Springfield and Sundown, owned by a group of companies controlled by Donald Logan (“the Logan Group”).  The Logan Group ran cattle on all three properties, treating the properties as one.

  1. The Logan Group sold St Ronans to R & E Henry Pty Ltd by a contract dated 23 June 1997.  R & E Henry Pty Ltd then on-sold St Ronans by contract dated 3 December 1998 to Johann Schneider and Klaus Schneider as trustees of Schneider Property Trust (“the plaintiff” [1]).

    [1]Klaus Schneider is not named as a plaintiff in the proceeding because he retired as a trustee in 2009, whereupon Johann Schneider, the…

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AGLC
Schneider v Alusa Pty Ltd [2011] QSC 366
Case
[2011] QSC 366
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Schneider v Alusa Pty Ltd involved a dispute between the plaintiff, Schneider, and the defendant, Alusa Pty Ltd. Schneider filed a claim against Alusa, but Alusa sought to have the claim dismissed for want of prosecution and to strike out certain parts of the plaintiff's Statement of Claim. Alusa also requested that Schneider provide further and better particulars of their claim prior to filing a defence. The primary focus of the court was to determine whether the plaintiff's claim should be dismissed due to a lack of prosecution and whether specific parts of the Statement of Claim should be struck out as disclosing no reasonable cause of action.

The legal issues before the court included whether the plaintiff's failure to prosecute the claim warranted dismissal and whether the particulars in the Statement of Claim were sufficient to establish a reasonable cause of action. The court had to consider the procedural rules regarding applications to dismiss for want of prosecution and the criteria for striking out pleadings under the Uniform Civil Procedure Rules. Additionally, the court needed to assess whether the plaintiff had adequately responded to the defendant's request for further and better particulars.

The court dismissed the application to dismiss the claim for want of prosecution, noting that there were no significant delays that warranted such a sanction. Regarding the application to strike out, the court found that the particulars provided a sufficient basis for the plaintiff's claims and therefore denied this application as well. However, the court did order the plaintiff to provide further and better particulars in response to the defendant's request, to be filed and served by a specified date. Finally, the court set a date for a hearing to discuss the costs associated with the applications.

The final orders of the court were that the application to dismiss for want of prosecution and the application to strike out were both dismissed. The plaintiff was required to provide further and better particulars by a specified date and the parties were to attend a hearing to discuss the costs of the proceedings.

Orders

Orders of the court

1. The application to dismiss the plaintiff’s claim for want of prosecution is dismissed.

2. The application to strike out paragraphs 2-7 of the Statement of Claim is dismissed.

3. The respondent is to provide answer to the applicant’s request for further and better particulars of 5 July 2010 by way of an Amended Statement of Claim to be filed and served by 4 pm 21 October 2011.

4. In the absence of agreement between the parties, acceptable to the Registrar, as to the manner and date of argument as to costs, I will hear the parties as to costs at 9.30 am 21 October 2011.

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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