Schneider v Alusa Pty Ltd

[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…