Steel Farming System Pty Ltd v Wakeling
[2012] QDC 281
•23 August 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Steel Farming System Pty Ltd v Wakeling [2012] QDC 281
PARTIES:
STEEL FARMING SYSTEM PTY LTD
(Plaintiff)
v
PETER ROY WAKELING
(Defendant)
FILE NO:
2171/2011
DIVISION:
PROCEEDING:
Application for further and better particulars
ORIGINATING COURT:
Brisbane
DELIVERED ON:
23 August 2012
DELIVERED AT:
Brisbane
HEARING DATE:
23 August 2012
JUDGE:
Samios DCJ
ORDER:
Order that the defendant file and serve within 14 days of today further and better particulars of the defence as requested by the plaintiff. 1.
Order that the defendant is to pay the plaintiff's costs of the application on the indemnity basis.2.
CATCHWORDS:
COUNSEL:
B. Codd for the Plaintiff.
Solicitor for the Defendant.
SOLICITORS:
Colville Johnston Lawyers for the Plaintiff.
Clarke Cann Lawyers for the Defendant.
This matter has a history. The proceedings appear to have commenced in the Supreme Court and then have been transferred to the District Court, as I can see from the index in the file. The proceedings were commenced on the 21st of June 2010 by way of claim and statement of claim seeking inter alia recovery of an outstanding debt.
The defendant filed and served the defence on or about 2 November 2010. On 5 December 2011 the plaintiff served upon the defendant a request for particulars of the defence. On 19 December 2011 the defendant, through his solicitors, indicated that a response to the request would be forthcoming on or before 9 January 2012. No response was received by the plaintiff. On 28 May 2012 the plaintiff served upon the defendant a further request for particulars of the defence. The plaintiff has not received a response to this second request.
The application for further and better particulars before me was filed on 25 July 2012. No particulars have been forthcoming even now that the matter has come on for hearing today. However, the defendant accepts he does have an obligation to provide further and better particulars and the first order I make is that the defendant file and serve within 14 days of today further and better particulars of the defence as requested by the plaintiff.
The issue that has been the centre of today's application is whether a guillotine order should be made, that is that in the event the defendant fails to comply with my order there be judgment against the defendant in favour of the plaintiff. While the plaintiff has had to push the defendant along in this litigation with respect to particulars being provided, I'm not persuaded that a guillotine order should be made. Such an order should only be made where it is clear the defendant in this case is failing to comply with Court orders.
I do note, though, that the defendant has simply not responded to these requests and has given no reason for why it has been unable to provide further and better particulars to date. I consider that is a relevant consideration that I will bear in mind when I hear further submissions as to the costs of today. I note the correspondence that has been placed before me as Exhibit 1. Offers have been made to provide the particulars and pay the costs, but I think the issue is a bit broader than those letters would make out.
I consider the defendant has failed with respect to its obligations under the rules. The defendant has been prepared to not provide the particulars until ordered to do so. I consider in those circumstances this is a case where indemnity costs should follow.
The plaintiff, having been put to the costs of having to come to the Court for an order, the plaintiff had an arguable case for a guillotine order, but I have not been persuaded in the end to make that order. I think that might be an order that a Judge might make another time.
I therefore order the defendant to pay the plaintiff's costs of the application on the indemnity basis.
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