Surfrider Investments Pty Ltd v Todd - [2019] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

Surfrider Investments Pty Ltd v Todd & Anor [2019] QDC 167

PARTIES:

SURFRIDER INVESTMENTS PTY LTD
(plaintiff)

v

TRUDY TODD
(first defendant)

and

CHRISTY LEIGH CONETTA
(second defendant)

FILE NO/S:

D2007/2015

DIVISION:

PROCEEDING:

Civil trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2019

JUDGE:

McGill SC DCJ

ORDER:

Judgment that the defendants pay the plaintiff $243,264.59. Order the defendants to pay the plaintiff’s costs of the proceeding, assessed on the indemnity basis.

CATCHWORDS:

LANDLORD AND TENANT – Termination of lease – damages – property remaining vacant – liability of guarantors.

PRACTICE – Pleading – defendant not appearing at trial – application to amend statement of claim – whether allowed – whether plaintiff able to recover amounts not claimed in pleading even if proved to be owing.

Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 – considered.
Chan v Cresdon Pty Ltd (1989) 168 CLR 242 - distinguished.
Holli Managed Investments Pty Ltd v Australian Securities Commission (1998) 90 FCR 341 – cited.
Platinum United II Pty Ltd v Secured Mortgage Management Ltd [2011] QCA 229 – applied.
Robertson Street Properties Pty Ltd v RPM Promotions Pty Ltd [2005] QCA 389 – applied.
Sandtara Pty Ltd v Abigroup Ltd (1996) 42 NSWLR 491 – cited.
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 – considered.
The Union Bank of Australia Ltd v Puddy [1949] VLR 242 – cited.
Wharf St Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256 – considered.
White v Baycorp Advantage Business Information Services Ltd (2006) 200 FLR 125 – cited.
Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316 – applied.

COUNSEL:

M Doyle for the plaintiff

No appearance for the defendants

SOLICITORS:

Shand Taylor Lawyers for the plaintiff

The defendants were not represented

This is an action on a guarantee by the defendants of the obligations under a lease of a company which has since been dissolved. The proceeding was commenced by a claim and statement of claim filed on 18 May 2015. A notice of intention to defend and defence and counterclaim were filed by the defendants on 1 July 2015, and a reply and answer filed on 28 July 2015. At that stage the defendants had legal representation, but each of them subsequently filed a notice that the party is acting in person.[1] On 4 July 2018 an application to strike out the defendants’ counterclaim came before me, but was dismissed with no order as to costs; however, on 4 December 2018 another judge did make such an order. The defendants’ signature on the request for trial date was dispensed with, by consent, by another judge on 9 March 2016. Nevertheless, it was not until 21 December 2018 that a request for trial date, signed only on behalf of the plaintiff, was filed. When the trial came on before me for hearing, the defendants did not appear, and the…

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: [2019] QDC 167
Decision Date: 5 September 2019

CaseChat Overview and Summary

Surfrider Investments Pty Ltd, a property investment company, brought proceedings against Todd and others, seeking damages for breaches of a lease agreement. The defendants, who were guarantors of the lease, did not appear at trial, leading to the plaintiff applying to amend its statement of claim to include additional claims. The primary legal issues were whether the court should allow the amendment of the statement of claim and whether the plaintiff could recover amounts not initially claimed in the pleading if they were proven to be owing. The court considered the principles outlined in Banque Commerciale SA v Akhil Holdings Ltd, which establish the circumstances under which a party may be permitted to amend their pleadings.

The court found that the amendment of the statement of claim was permissible, as the additional claims were directly related to the same transaction as the original claims and the defendants were not prejudiced by the amendment. The court held that the plaintiff could indeed recover amounts not initially claimed in the pleading if those amounts were proven to be owing. The court applied the principle that justice and fairness dictated that the plaintiff should not be deprived of a remedy because of the procedural oversight. The court determined that the defendants were liable for the damages claimed by the plaintiff due to the breach of the lease agreement, which left the property vacant.

Following this decision, the court ordered the defendants to pay the plaintiff Surfrider Investments Pty Ltd the sum of $243,264.59 as damages for the breaches of the lease agreement. Additionally, the court ordered the defendants to pay the plaintiff's costs of the proceeding, assessed on the indemnity basis. This comprehensive judgment addressed both the procedural aspect of amending the statement of claim and the substantive issue of the liability for damages in a landlord and tenant dispute.

Orders

Orders of the court

Judgment that the defendants pay the plaintiff $243,264.59. Order the defendants to pay the plaintiff’s costs of the proceeding, assessed on the indemnity basis.

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:	Surfrider Investments Pty Ltd v Todd & Anor [2019] QDC 167
PARTIES:	SURFRIDER INVESTMENTS PTY LTD (plaintiff) v TRUDY TODD (first defendant) and CHRISTY LEIGH CONETTA (second defendant)
FILE NO/S:	D2007/2015
DIVISION:
PROCEEDING:	Civil trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2019
JUDGE:	McGill SC DCJ
ORDER:	Judgment that the defendants pay the plaintiff $243,264.59. Order the defendants to pay the plaintiff’s costs of the proceeding, assessed on the indemnity basis.
CATCHWORDS:	LANDLORD AND TENANT – Termination of lease – damages – property remaining vacant – liability of guarantors. PRACTICE – Pleading – defendant not appearing at trial – application to amend statement of claim – whether allowed – whether plaintiff able to recover amounts not claimed in pleading even if proved to be owing. Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 – considered. Chan v Cresdon Pty Ltd (1989) 168 CLR 242 - distinguished. Holli Managed Investments Pty Ltd v Australian Securities Commission (1998) 90 FCR 341 – cited. Platinum United II Pty Ltd v Secured Mortgage Management Ltd [2011] QCA 229 – applied. Robertson Street Properties Pty Ltd v RPM Promotions Pty Ltd [2005] QCA 389 – applied. Sandtara Pty Ltd v Abigroup Ltd (1996) 42 NSWLR 491 – cited. Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 – considered. The Union Bank of Australia Ltd v Puddy [1949] VLR 242 – cited. Wharf St Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256 – considered. White v Baycorp Advantage Business Information Services Ltd (2006) 200 FLR 125 – cited. Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316 – applied.
COUNSEL:	M Doyle for the plaintiff No appearance for the defendants
SOLICITORS:	Shand Taylor Lawyers for the plaintiff The defendants were not represented