Stegman v Glanville - [2008] QDC 317

DISTRICT COURT OF QUEENSLAND

CITATION:

Stegman v Glanville [2008] QDC 317

PARTIES:

MARK STEGMAN
Plaintiff
V
NICHOLAS GLANVILLE
First Defendant
And
GAIL ANN GLANVILLE
Second Defendant

FILE NO/S:

4236/05

DIVISION:

Civil

PROCEEDING:

Applications

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

30/10/2008

DELIVERED AT:

Brisbane

HEARING DATE:

15/10/2008

JUDGE:

Devereaux SC ADCJ

ORDER:

1. Leave be granted under UCPR r. 72(1) to the defendants to file and pursue the application filed 23 September 2008.

2.   The plaintiff’s claim be dismissed.

3.   The deposit monies paid into court in the proceeding be paid out to the defendants along with accretions if any.

4.   The plaintiff pay the defendants’ costs of and incidental to the proceeding fixed in the sum of $19,946.[^7]

5.   These orders be stayed for 14 days from the date of these orders.

6.   The defendants serve a copy of these orders and the affidavit of Mr Byres sworn on 14 October 2008, exhibiting the estimate of recoverable costs on the standard basis, on the plaintiff and the trustee in bankruptcy of the plaintiff forthwith.

There be liberty to the plaintiff and the trustee in bankruptcy of the plaintiff to apply.

CATCHWORDS:

PROCEDURE – application by defendants to dismiss claim for want of prosecution and breach of rules – where plaintiff bankrupt – where defendants counterclaim for deposit monies paid into court

Uniform Civil Procedure Rules r222, r72, r445, r214, r211, r5, r371, r280
Bankruptcy Act 1966 (Cth) s.58, s60, s82,
Supreme Court Act 1991 s.85

Foots v Southern Cross Mine Management Pty Ltd (2007) 241 ALR 32
Finikiotis v Knight Frank (SA) Pty Ltd [2001] FCA 1733
Quinlan v Rothwell [2002] 1 Qd R 647
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

COUNSEL:

No Appearance for the plaintiff
G Beacham for the defendants

SOLICITORS:

Corrs Chambers Westgarth for the defendants

[7]Order made pursuant to Practice Direction No 3 of 2007 on reliance of the affidavit of the defendants’/applicants’ solicitor.

The defendants have applied to strike out or dismiss the plaintiff's claim and for judgment in terms of their counterclaim, essentially on the basis of extended delay and failure to comply with several of the Uniform Civil Procedure Rules (the UCPR). The application was heard on 15 October 2008.

The contract and the proceedings.

In early 2005, the defendants entered into a contract by which they agreed to purchase from the plaintiff a unit at Spring Hill.

By letter dated 7 February 2005, the defendants’ solicitor purported to terminate the contract. In the defence and counterclaim, it is pleaded that the termination was justified because:

(a)it took place within the cooling off period, within the meaning of s.368(1) of the Property Agents and Motor Dealers Act 2000;

(b)the body corporate records for Centrepoint Apartments recorded liabilities that were not part of the body corporate's normal operating expenses, and which were not disclosed in the contract, in breach of s.223 of the Body Corporate and Community Management Act 1997.

For reasons set out below, I need…

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: [2008] QDC 317
Decision Date: 30 October 2008

CaseChat Overview and Summary

The case of Stegman v Glanville involved the plaintiff, Stegman, who sought to dismiss a claim against the defendants, Glanville, due to a lack of prosecution and a breach of rules. The plaintiff, Stegman, was also declared bankrupt. The defendants, Glanville, filed a counterclaim for deposit monies paid into court. This matter was heard in a relevant Australian court. The defendants argued that the plaintiff's claim was not being pursued diligently and that it was in breach of court rules. They sought to have the plaintiff's claim dismissed and for the deposit monies paid into court to be returned to them, along with any accrued interest.

The court was required to determine whether the plaintiff's failure to prosecute the claim amounted to a want of prosecution and whether this warranted dismissal of the claim. Additionally, the court needed to consider whether the plaintiff's bankruptcy affected the defendants' counterclaim for the deposit monies and whether the dismissal should result in the return of these monies to the defendants. The court also had to address the defendants' request for an order that the plaintiff pay their costs of and incidental to the proceeding.

In reaching its decision, the court found that the plaintiff's claim was indeed not being pursued diligently and that there had been a breach of court rules. Consequently, the court granted leave to the defendants to file and pursue their application, dismissed the plaintiff's claim, and ordered that the deposit monies paid into court be paid out to the defendants, along with any accretions. The court also ordered that the plaintiff pay the defendants' costs of and incidental to the proceeding, fixed at $19,946. These orders were to be stayed for 14 days from the date of the orders, allowing time for the plaintiff and the trustee in bankruptcy to consider and potentially apply to set aside the orders. Finally, the defendants were directed to serve a copy of these orders and an affidavit on the plaintiff and the trustee in bankruptcy forthwith.

Orders

Orders of the court

1. Leave be granted under UCPR r. 72(1) to the defendants to file and pursue the application filed 23 September 2008.

2. The plaintiff’s claim be dismissed.

3. The deposit monies paid into court in the proceeding be paid out to the defendants along with accretions if any.

4. The plaintiff pay the defendants’ costs of and incidental to the proceeding fixed in the sum of $19,946.[7]

5. These orders be stayed for 14 days from the date of these orders.

6. The defendants serve a copy of these orders and the affidavit of Mr Byres sworn on 14 October 2008, exhibiting the estimate of recoverable costs on the standard basis, on the plaintiff and the trustee in bankruptcy of the plaintiff forthwith.

1. There be liberty to the plaintiff and the trustee in bankruptcy of the plaintiff to apply.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stegman v Glanville [2008] QDC 317
PARTIES:	MARK STEGMAN Plaintiff V NICHOLAS GLANVILLE First Defendant And GAIL ANN GLANVILLE Second Defendant
FILE NO/S:	4236/05
DIVISION:	Civil
PROCEEDING:	Applications
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	30/10/2008
DELIVERED AT:	Brisbane
HEARING DATE:	15/10/2008
JUDGE:	Devereaux SC ADCJ
ORDER:	1. Leave be granted under UCPR r. 72(1) to the defendants to file and pursue the application filed 23 September 2008. 2. The plaintiff’s claim be dismissed. 3. The deposit monies paid into court in the proceeding be paid out to the defendants along with accretions if any. 4. The plaintiff pay the defendants’ costs of and incidental to the proceeding fixed in the sum of $19,946.[^7] 5. These orders be stayed for 14 days from the date of these orders. 6. The defendants serve a copy of these orders and the affidavit of Mr Byres sworn on 14 October 2008, exhibiting the estimate of recoverable costs on the standard basis, on the plaintiff and the trustee in bankruptcy of the plaintiff forthwith. There be liberty to the plaintiff and the trustee in bankruptcy of the plaintiff to apply.
CATCHWORDS:	PROCEDURE – application by defendants to dismiss claim for want of prosecution and breach of rules – where plaintiff bankrupt – where defendants counterclaim for deposit monies paid into court Uniform Civil Procedure Rules r222, r72, r445, r214, r211, r5, r371, r280 Bankruptcy Act 1966 (Cth) s.58, s60, s82, Supreme Court Act 1991 s.85 Foots v Southern Cross Mine Management Pty Ltd (2007) 241 ALR 32 Finikiotis v Knight Frank (SA) Pty Ltd [2001] FCA 1733 Quinlan v Rothwell [2002] 1 Qd R 647 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
COUNSEL:	No Appearance for the plaintiff G Beacham for the defendants
SOLICITORS:	Corrs Chambers Westgarth for the defendants