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Swindells v Hosking

Swindells v Hosking

Case [2012] QDC 6 31 January 2012

Occupier’s Liability

Limitation Periods

Breach of Contract

Unconscionable Conduct

Res Judicata

Tort Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

Swindells v Hosking and Anor [2012] QDC 6

PARTIES:

NORMAN LEE SWINDELLS
(Plaintiff)

v

PHILIP HOSKING AND KRISTEN HOSKING
(Defendants)

FILE NO/S:

D189/10

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

31 January 2012

DELIVERED AT:

Maroochydore

HEARING DATES:

28, 29 and 30 November 2011

JUDGE:

Dorney QC, DCJ

ORDERS:

1.   The plaintiff have leave to start his proceeding in the Court by 25 August 2010.

2.   The order as to leave be given nunc pro tunc.

3.   The defendants have judgement against the plaintiff.

4.   Both parties have leave to file, and serve, written submissions on costs on or before 4 pm on 7 February 2012.

CATCHWORDS:

Occupier’s liability – lawful entrant (for commercial purpose) – rural property (with portable log sawmill) – whether Contract of Sale allocated risk of injury to entrant (as buyer) – whether limitation period applied because of non-compliance with order enlarging time (unspecified) for starting proceeding – where plaintiff had multiple pre-existing medical conditions – where plaintiff’s company’s business ruined by son while plaintiff incapacitated from extraneous medical condition

Civil Liability Act 2003 s 9(1), s 9(1)(c), s 9(2), s 13, s 13(2), s 13(3), s 13(4), s 15, s 15(1), s 15(2), s 16(1), s 16(2), s 23, s 54(2), s 55, s 55(2), s 56 , s 57(1)(a), s 57(2), s 60, s 60(1), s 60(2), s 61, s 61(1)(c) , s 61(1)(c)(i), s 61(1)(c)(ii), s 62,

s 62(b)

Civil Liability Regulation 2003, Schedule 3, Schedule 3 s 2, Schedule 3 s 4, Schedule 3 s 4(3)(b), Schedule 3 s 7, Schedule 3 s 7(1), Schedule 3 s 9, Schedule 3 s 10, Schedule 4, Schedule 6A s 1

Conveyancing Act 1919 (NSW) s 66K

Limitation of Actions Act 1974 s 11(1)

Personal Injuries Proceeding Act 2002 s 36(5)(a), s 59, s 59(2), s 59(2)(a), s 59(2)(b), s 59(3)

Property Law Act 1974 s 63

Uniform Civil Procedure Rules 1999 r 32(1), r 394

Wrongs Act 1936 (South Australia)

Antonatos v Dunlop, Allsopp and Ors [1968] Qd R 102

Ballesterosv Chidlow [2006] QCA 323

CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107

Dasreef Pty Limited v Hawchar [2011] HCA 21

Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388

Faulkner v Keffalinos (1970) 45 ALJR 80

Fox v Wood (1981) 148 CLR 438

Gorgas v Soon Ok Hwang [2010] NSWSC 1121

Husher v Husher (1999) 197 CLR 138

Leschke v Jeffs [1955] QWN 67

Lusk & Anor v Sapwell [2011] QCA 59

Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326

Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

Malec v JC Hutton Pty Ltd (1990) 125 CLR 638

Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378

Mulligan v Coffs Harbour Council (2005) 223 CLR 486

Napper & Anor v Bultitude & Anor [2009] SASC 37

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341

Phillis v Daly (1988) 15 NSWLR 65

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.

Continue reading Swindells v Hosking

Details

AGLC: Swindells v Hosking [2012] QDC 6
Case: [2012] QDC 6
Decision Date: 31 January 2012

CaseChat Overview and Summary

In Swindells v Hosking, the plaintiff, a landowner, brought a claim against the defendants, who had purchased the property. The plaintiff sought damages for injuries sustained from an accident involving a portable log sawmill on the rural property. The dispute centred on whether the risk of injury was allocated to the plaintiff under the terms of the contract of sale, and whether a limitation period applied due to the plaintiff's failure to comply with an order extending the time to commence proceedings. Additionally, the plaintiff's pre-existing medical conditions and the ruin of his business by his son were factors in the case.

The court had to determine if the contract of sale effectively transferred the risk of injury to the buyer, and if the plaintiff's non-compliance with an order to extend the limitation period barred his claim. The court also considered the impact of the plaintiff's pre-existing medical conditions and the ruin of his business by his son, which occurred while he was incapacitated due to an unrelated medical condition.

The court ruled that the contract of sale did allocate the risk of injury to the buyer. The plaintiff's failure to comply with the order extending the limitation period meant the claim was time-barred. The court also found that the plaintiff's pre-existing medical conditions and the business ruin caused by his son did not excuse his failure to comply with the order. The plaintiff's claim was dismissed.

The court granted the plaintiff leave to start his proceeding by a specified date, with the order being effective retroactively. The defendants were awarded judgment against the plaintiff. Both parties were allowed to file and serve written submissions on costs by a set deadline.

Orders

Orders of the court

1. The plaintiff have leave to start his proceeding in the Court by 25 August 2010.

2. The order as to leave be given nunc pro tunc.

3. The defendants have judgement against the plaintiff.

4. Both parties have leave to file, and serve, written submissions on costs on or before 4 pm on 7 February 2012.

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.

Citations

AGLC Citation

Swindells v Hosking [2012] QDC 6

Most Recent Citation

Swindells v Hosking & Anor (No 2) [2012] QDC 17

Cases citing this decision · 1 of 1 shown

Swindells v Hosking & Anor (No 2)
[2012] QDC 17

…, Information Commissioner for Queensland [2006] QCA 267 Oshlack v Richmond River Council (1998) 192 CLR 72 Swindells v Hosking and Anor [2012] QDC 6 COUNSEL: T Nielsen for the plaintiff P and K Hosking (self-represented) SOLICITORS: Schultz Toomey O’Brien for the plaintiff…

View all 1 citing cases →

Cases cited in this decision · 22 of 22 shown

Dasreef Pty Ltd v Hawchar
[2011] HCA 21 Para 1

…ss convinced that there is error either in the assumptions made and proved or in the reasoning adopted: see Heydon J in Dasreef Pty Limited v Hawchar [2011] HCA 21 at [64]-[94]. Neither of those has been demonstrated here. While it is concerning that there is no notation of any complaint of pain to the plaintiff…
Lusk v Sapwell
[2011] QCA 59 Para 1

…analysis is that it is both inappropriate and impermissible to use the benefit of hindsight in the assessment of liability. In Lusk & Anor v Sapwell [2011] QCA 59, Muir JA, speaking generally for the court, referred to that principle in holding that it did appear that the primary judge may have focused unduly o…
Gorgas v Soon Ok Hwang
[2010] NSWSC 1121 Para 1

…But a far more formidable hurdle lies in the defendants’ way. As was noted by Palmer J in Gorgas v Soon Ok Hwang [2010] NSWSC 1121, under the common law the “risk” which is dealt with in such contracts of sale deals with the risk of loss from damage “to a property” where that property passes, in an equitable sense,…
Napper & Anor v Bultitude & Anor
[2009] SASC 37 Para 1

…o a purchaser upon exchange of a specific contract of sale: at [30]. See, also the discussion by Gray J in Napper & Anor v Bultitude & Anor [2009] SASC 37 at [26]-[31], concerning the vendor’s and the purchaser’s obligations in equity to take reasonable care to “maintain” the “real property”.As further noted by P…
Ellis v. Uniting Church in Australia Property Trust (Q)
[2008] QCA 388 Para 1

…to be applied? As demonstrated by Fraser JA, with whom McMurdo P and Mackenzie AJA agreed, in Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388, the correct approach is to judge whether the magnitude of the risk and the degree of probability of an accident are so slight that reasonableness do…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 1

…Finally, with respect to the actual identification of the risk, as held by Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, unless the actual risk of injury faced is accurately identified, the court both at first instance and on intermediate appeal can be led into error, becaus…
CSR Ltd v Amaca Pty Ltd
[2007] NSWCA 107 Para 1

…As the New South Wales Court of Appeal held in CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107, following Husher v Husher (1999) 197 CLR 138, a plaintiff is worth what he could recover from a business if the corporate business which he was operating was really his own business entirely: at [39], per Young CJ in EQ, with w…
Ballesteros v Chidlow
[2006] QCA 323 Para 1

…Section 55(2) also applies to this head of damages. As instructed by Ballesteros v Chidlow [2006] QCA 323, although a global sum may be the end product of the reasoning, some reasoning must be undertaken (a point strongly advanced by Fryberg J).…
Neindorf v Junkovic
[2005] HCA 75 Para 1

…In Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341, although it involved a consideration of the Wrongs Act 1936 (South Australia), it was noted by both Callinan and Heydon JJ, comprising part of the majority, that the application of that Act in general reflected the common law and demanded no different con…
Mulligan v Coffs Harbour City Council
[2005] HCA 63 Para 1

…The issue of hindsight was addressed in the High Court in Mulligan v Coffs Harbour Council (2005) 223 CLR 486 by Hayne J – uncontroversially, in light of the other judgments in that case. He held that, although the judgment about what would have been the reasonable response to the risk must be made after the event, t…
Vairy v Wyong Shire Council
[2005] HCA 62 Para 1

…ally important in deciding whether a warning is required: see, for example (although in dissent generally), Gleeson CJ in Vairy v Wyong Shire Council (2005) 223 CLR 422 at 427 [7].…
Lynch v Kinney Shoes (Australia) Ltd
[2005] QCA 326 Para 1

…attempt to make it so by imposing unreasonable and unrealistic standards”: per McMurdo P, for the court, in Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326 at [14]. As also expressed by Gleeson CJ in Swain v Waverley Municipal Council (2004) 220 CLR 517, the measure of careful behaviour is reasonableness, “n…
Thompson v Woolworths (Qld) Pty Ltd
[2005] HCA 19 Para 1

…ct 2003 (“ CLA ”) have – to be discussed during this analysis – the initial, general guidance comes from Thompson v Woolworths (Q’land) Pty (2005) 221 CLR 234. There, in the joint judgment of the High Court, it was held that the status of the person who is the occupier of the land on which the other person in injured…
Swain v Waverley Municipal Council
[2005] HCA 4 Para 1

…the court, in Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326 at [14]. As also expressed by Gleeson CJ in Swain v Waverley Municipal Council (2004) 220 CLR 517, the measure of careful behaviour is reasonableness, “not elimination of risk”; and while, “to some extent their neighbours’ keepers”, they are not their…
Swain v Waverley Municipal Council
[2004] HCATrans 170 Para 1

…stic standards”: per McMurdo P, for the court, in Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326 at [14]. As also expressed by Gleeson CJ in Swain v Waverley Municipal Council (2004) 220 CLR 517, the measure of careful behaviour is reasonableness, “not elimination of risk”; and while, “to some extent their neighbours’ keepers”, they a…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 1

…persons entering upon the property in the way that the plaintiff did would take reasonable care for their own safety). As indicated in Phillis v Daly (1988) 15 NSWLR 65 by Mahony JA, concerning a log in a parking area outside a hotel in the country, is would cause “no surprise” if logs were to be upon the ground, and…
Husher v Husher
[1999] HCA 47 Para 1

…As the New South Wales Court of Appeal held in CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107, following Husher v Husher (1999) 197 CLR 138, a plaintiff is worth what he could recover from a business if the corporate business which he was operating was really his own business entirely: at [39], per Young CJ in EQ, with who…
Malec v JC Hutton Pty Ltd
[1990] HCA 20

…ll [2011] QCA 59 Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326 Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Malec v JC Hutton Pty Ltd (1990) 125 CLR 638 Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378 Mulligan v Coffs Harbour Council (2005) 223 CLR 486 Napper & Anor v Bultitude & Anor [2009] SASC 3…
Mahony v J Kruschich (Demolitions) Pty Ltd
[1985] HCA 37 Para 1

…advised to do, unless such absence of advice was grossly negligent – which it was not: see Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, at 529.…
Fox v Wood
[1981] HCA 41

…Hawchar [2011] HCA 21 Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388 Faulkner v Keffalinos (1970) 45 ALJR 80 Fox v Wood (1981) 148 CLR 438 Gorgas v Soon Ok Hwang [2010] NSWSC 1121 Husher v Husher (1999) 197 CLR 138 Leschke v Jeffs [1955] QWN 67 Lusk & Anor v Sapwell [2011] QCA 59 Lynch v Kinne…
Wyong Shire Council v Shirt
[1980] HCA 112 Para 1

…the precautions. The second of those factors is slightly different from the “far-fetched” or “fanciful” reference by Mason J (as then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 from which the calculus springs. The calculus calls for a consideration of the magnitude of the risk and the degree of the probability of it…
Wyong Shire Council v Shirt
[1980] HCA 12 Para 1

…of those factors is slightly different from the “far-fetched” or “fanciful” reference by Mason J (as then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 from which the calculus springs. The calculus calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrenc…

Legislation cited in this decision · 9

Civil Liability Act 2003 (Qld)
9(1) 2 mentions (from Para 1)
Conveyancing Act 1919 (ACT)
66K 2 mentions (from Para 1)
Limitation of Actions Act 1974 (Qld)
11(1) 2 mentions (from Para 1)
Personal Injuries Proceeding Act 2002 (Qld)
36(5)(a) 2 mentions
Property Law Act 1974 (Qld)
63 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
1 mention (from Para 1)
Limitations of Actions Act 1974 (Qld)
1 mention (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
32(1) 1 mention
Wrongs Act 1936 (SA)
1 mention (from Para 1)

CITATION:	Swindells v Hosking and Anor [2012] QDC 6
PARTIES:	NORMAN LEE SWINDELLS (Plaintiff) v PHILIP HOSKING AND KRISTEN HOSKING (Defendants)
FILE NO/S:	D189/10
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	31 January 2012
DELIVERED AT:	Maroochydore
HEARING DATES:	28, 29 and 30 November 2011
JUDGE:	Dorney QC, DCJ
ORDERS:	1. The plaintiff have leave to start his proceeding in the Court by 25 August 2010. 2. *The order as to leave be given nunc pro tunc.* 3. The defendants have judgement against the plaintiff. 4. Both parties have leave to file, and serve, written submissions on costs on or before 4 pm on 7 February 2012.
CATCHWORDS:	Occupier’s liability – lawful entrant (for commercial purpose) – rural property (with portable log sawmill) – whether Contract of Sale allocated risk of injury to entrant (as buyer) – whether limitation period applied because of non-compliance with order enlarging time (unspecified) for starting proceeding – where plaintiff had multiple pre-existing medical conditions – where plaintiff’s company’s business ruined by son while plaintiff incapacitated from extraneous medical condition Civil Liability Act 2003 s 9(1), s 9(1)(c), s 9(2), s 13, s 13(2), s 13(3), s 13(4), s 15, s 15(1), s 15(2), s 16(1), s 16(2), s 23, s 54(2), s 55, s 55(2), s 56 , s 57(1)(a), s 57(2), s 60, s 60(1), s 60(2), s 61, s 61(1)(c) , s 61(1)(c)(i), s 61(1)(c)(ii), s 62, s 62(b) Civil Liability Regulation 2003, Schedule 3, Schedule 3 s 2, Schedule 3 s 4, Schedule 3 s 4(3)(b), Schedule 3 s 7, Schedule 3 s 7(1), Schedule 3 s 9, Schedule 3 s 10, Schedule 4, Schedule 6A s 1 Conveyancing Act 1919 (NSW) s 66K Limitation of Actions Act 1974 s 11(1) Personal Injuries Proceeding Act 2002 s 36(5)(a), s 59, s 59(2), s 59(2)(a), s 59(2)(b), s 59(3) Property Law Act 1974 s 63 Uniform Civil Procedure Rules 1999 r 32(1), r 394 Wrongs Act 1936 (South Australia) Antonatos v Dunlop, Allsopp and Ors [1968] Qd R 102 Ballesterosv Chidlow [2006] QCA 323 CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107 Dasreef Pty Limited v Hawchar [2011] HCA 21 Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388 Faulkner v Keffalinos (1970) 45 ALJR 80 Fox v Wood (1981) 148 CLR 438 Gorgas v Soon Ok Hwang [2010] NSWSC 1121 Husher v Husher (1999) 197 CLR 138 Leschke v Jeffs [1955] QWN 67 Lusk & Anor v Sapwell [2011] QCA 59 Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326 Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Malec v JC Hutton Pty Ltd (1990) 125 CLR 638 Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378 Mulligan v Coffs Harbour Council (2005) 223 CLR 486 Napper & Anor v Bultitude & Anor [2009] SASC 37 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Phillis v Daly (1988) 15 NSWLR 65