Superformance Pty Ltd v Vaughan

[2013] QDC 99

DISTRICT COURT OF QUEENSLAND

CITATION:

Superformance Pty Ltd v Vaughan  [2013] QDC 99

PARTIES:

SUPERFORMANCE PTY LTD
(Applicant)

v

MICHAEL VAUGHAN
(Respondent)

FILE NO/S:

2378/07

DIVISION:

PROCEEDING:

Applications

ORIGINATING COURT:

District Court

DELIVERED ON:

24/04/2013

DELIVERED AT:

Brisbane

HEARING DATE:

24/04/2013

JUDGE:

Samios DCJ

ORDER:

1. Order strike out the amended statement of claim.
2. The Plaintiff given leave to re-plead its case within twenty eight days from today.
3. The plaintiff’s solicitor to return to the defendant’s solicitor any documents in the plaintiff’s solicitor’s possession deemed irrelevant by the plaintiff’s solicitor. In addition, any copies that may be in the plaintiff’s possession which are also deemed to be irrelevant must also be returned within seven days of today.
4. The Plaintiff pay the Defendant’s costs of this application and costs thrown away from the striking out of the Plaintiff’s amended statement of claim on the standard basis.

CATCHWORDS:

Practice - amended statement of claim - striking out - the amended statement of claim is so deficient that it should be struck out - those deficiencies could have led to difficulties at a later point in time in the proceedings.

COUNSEL:

Dr Jenson (Sol) for the Applicant

Mr Gardener for the Respondent

SOLICITORS:

Dr Craig Jensen Lawyers for the Applicant
MTM Lawyers and Attorneys for the Respondent  

1. In this matter I would have made the orders sought in the defendant’s application filed by leave today.  Those orders are in paragraphs 1, 2, 3 and 4 of that application.  That is, that the plaintiff supply the particulars sought and that the discrete questions be tried in advance of a trial and that any further disclosure by the defendant be deferred until the questions were determined.  However, and I should say for the record that I accept Dr Jensen’s submissions, however that is subject to this.  Having considered making those orders, I have come to the view that the amended statement of claim is so deficient that it should be struck out.  Those deficiencies, in my view, could have led to difficulties at a later point in time in the proceedings between the parties, probably not when the separate questions were being determined but certainly at a later date.

1. Now, it might be said, as it was submitted by Dr Jensen, that the trying of the separate questions may have led to an end of the proceedings.  I am not so sure about that.  That is because the deficiencies in the amended statement of claim lead me to think that the plaintiff may have argued that there was still liability matters to be tried between the parties.  I think Dr Jensen’s approach, of course, is to be commended in trying to straighten this case up.  I think the defendant has been doing a valiant job at trying to do that, however the plaintiff has continued to persist in an inadequate presentation of the issues to be decided.  That has left the defendant not in a position to be able to meet the plaintiff’s claims.

1. I think the plaintiff must go back and start again and properly plead its case so that it can properly be determined what particulars are necessary and what disclosure may be required.  I appreciate that that can lead to cost and delay, however it just seems to me that the allegations are just not being properly alleged.  Therefore I strike out the amended statement of claim.  I give the plaintiff leave to re-plead its case within 21 days from today.  I order the plaintiff’s solicitor to return to the defendant’s solicitor any documents in the plaintiff’s solicitor’s possession deemed irrelevant by the plaintiff’s solicitor.  In addition, any copies that may be in the plaintiff’s possession, and by the plaintiff I mean Superformance Proprietary Limited, which are also deemed to be irrelevant must also be returned within seven days of today. 

1. Finally on the question of costs, I’ve come to the view that even though I have proceeded and made different orders than were sought, the defendant in my view has the merits.  If it had not been for the conclusion that I made about the state of the amended statement of claim, I would have made the orders sought by the defendant.  I consider therefore the order that I will make is that the plaintiff pay the defendant’s costs of this application and costs thrown away from the striking out of the plaintiff’s amended statement of claim on the standard basis. 

1. But nevertheless I’ll extend that – I’ll give leave to the plaintiff to re-plead its case within 28 days from today.