Storey v Britton

[2025] QSC 125

SUPREME COURT OF QUEENSLAND

CITATION:

Storey v Britton [2025] QSC 125

PARTIES:

JOSHUA MARC STOREY
(first plaintiff)
AND
SAMANTHA RUTH ERSKINE STOREY
(second plaintiff)
v
MICHELLE SUSAN BRITTON

(first defendant)
AND
ANDREW JOHN BRITTON
(second defendant)

FILE NO/S:

BS 10922 of 2024

DIVISION:

Trial

PROCEEDING:

Commercial List Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2025

JUDGE:

Freeburn J

ORDER:

1.   The first defendant pay the plaintiffs’ costs of the application for disclosure filed on 4 February 2025 on an indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – GENERALLY – where the plaintiffs bought a disclosure application in February 2025 – where the first defendant was ordered to deliver a list of documents by March 2025 – where the first defendant remains in breach of that order – where the first defendant’s list of documents provided was late, non-compliant and incomplete – where the plaintiffs seek indemnity costs of the disclosure application – where parties have an obligation to proceed with the case in an expeditious way – whether the first defendant should pay the plaintiffs’ costs of the disclosure application on an indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 214(1)(a)

COUNSEL:

M J Downes for the Plaintiffs
The first defendant appeared on her own behalf

The second defendant appeared on his own behalf

SOLICITORS:

Moore Lawyers for the Plaintiffs
The first defendant appeared on her own behalf
The second defendant appeared on his own behalf

1. In August 2024, Mr and Ms Storey commenced proceedings against Mr and Ms Britton. The claim is for specific performance of a contract pursuant to which the Storeys purchased a property at the Sunshine Coast from the Brittons for $3,264,000. Essentially, the claim is that the Brittons failed to ‘settle’ on the date for settlement – which was first 16 August 2024 and then extended to 19 August 2024.[1]  

   [1]           Statement of Claim [20]-[21].

2. The Brittons have defended the claim separately. Apparently, they separated during the course of last year. There is a counterclaim by Ms Britton on the basis that the Storeys have been in possession of the property since February 2024 without consent. Ms Britton, who is a solicitor, now acts for herself. According to Ms Britton the Storeys are also both legal practitioners.

3. Cases like this, involving a claim for specific performance of the purchase of a residential property, usually move quickly. The court often facilitates that. This proceeding has not moved quickly. Pleadings were exchanged in October 2024. In February 2025, the Storeys brought an application for disclosure. Prior to bringing that application, the plaintiffs requested Ms Britton to make disclosure on 19 November 2024 and again on 6 December 2024. On each occasion, Ms Britton said she intended to provide disclosure but failed to do so. On 9 December 2025 the plaintiffs issued a letter pursuant to rule 444 of the Uniform Civil Procedure Rules 1999 (Qld) to Ms Britton, which she did not respond to. On 20 February 2025, I ordered that Ms Britton deliver a list of documents by 13 March 2025 and I assigned the proceeding to the Commercial List.

4. On 12 March 2025, the time for Ms Britton to deliver a list of documents was extended to 20 March 2025.

5. On 20 March 2025, Ms Britton emailed the Storeys’ solicitors with a link to an electronic list of documents and to copies of some documents. She said “[m]y other documents will follow asap, I have had difficulty doing so much with my vision and health issues.” The Storeys complain that the disclosure did not comply with rule 214(1)(a) of the UCPR in these respects:

   (a)it was not in the correct form (the correct form being UCPR Form 19);

   (b)it did not contain the required statements set out in the UCPR Form 19;

   (c)it did not provide the necessary information such as a description of the document or who made the document or in some instances the date of the document;

   (d)documents were provided with no document name, description or date, and it did not contain a list of documents which are subject to a claim for privilege; and

   (e)it did not comply with the document management plan.

6. The result was that on 17 April 2025 the solicitors for the Storeys sent Ms Britton a letter pursuant to rule 444 of the UCPR. The letter required a response by 25 April 2025. On 28 April 2025 Ms Britton responded saying that the rule 444 letter had gone to her junk mailbox. She said she would ‘review’ and respond as soon as possible. Ms Britton reminded the Storeys’ solicitors that she was sending the other documents as soon as possible. These are, presumably, the ‘other documents’ she said on 20 March 2025 that she would send as soon as possible. Ms Britton complained about the Storeys’ conduct and said she likely would be seeking a summary dismissal of the Storeys’ application. She said the Storeys, or their solicitors, have clearly misled the court “in multiple places of your pleadings and in correspondence”. No proper details were provided of those serious allegations. Ms Britton also sought possession of the property “forthwith”.

7. There was then some unproductive correspondence, including to the court.

8. That was the state of play when the proceeding was reviewed on 15 May 2025. On that occasion the court ordered:

   (a)on or before 16 May 2025, the Brittons will file and serve their application, materials and submissions in relation to their proposed strike-out application;

   (b)on or before 23 May 2025, the Storeys will file and serve their material and submissions;

   (c)the court’s decision on the costs of the Storeys’ application for indemnity costs was reserved.

9. On 19 May 2025, by consent, the time for compliance with order 1 was extended to 21 May 2025 and order 2 was extended to 28 May 2025.

10. Still there was no compliance. On 27 May 2025, Ms Britton sent to the court an email which enclosed an affidavit. Ms Britton has failed to comply with the requirement to file and serve, by 21 May 2024, her application, her affidavit and her submissions.[2]

    [2]           An affidavit of Michelle Susan Britton dated 27 May 2025 was filed on 28 May 2025.

11. Even now – on 28 May 2025 –[3] no such application or submissions have been filed and served. It is appropriate to direct a further review.

    [3]           I prepared these reasons on 28 May 2025.

12. The outstanding issue, which I reserved, is the question of the costs of the Storey’s application for disclosure.

13. The Storeys seek their costs of that application against Ms Britton on an indemnity basis. At the hearing on 15 May 2025 Ms Britton resisted that application, including on medical grounds. She did not support that resistance with any material but proposed to file and serve that material within a few days of the hearing on 15 May 2025. That material was not filed within the requisite time.[4]

    [4]           An affidavit of Michelle Susan Britton dated 27 May 2025 was filed on 28 May 2025.

14. The Storeys ought to have a full indemnity for their costs of the disclosure application. Disclosure was due to be completed in November 2024. Six months later it remains an issue. The order made in February 2025 has not been complied with. Even subsequent extensions were breached.

15. The parties have obligations under rule 5 of the UCPR to proceed with the case in an expeditious way. Ms Britton’s progress has been some distance from meeting that obligation.

16. Ms Britton will be ordered to pay the costs of the disclosure application on an indemnity basis.