Szendrey v Isles - [2020] QDC 53

DISTRICT COURT OF QUEENSLAND

CITATION:

Szendrey & Anor v Isles [2020] QDC 53

PARTIES:

STEVEN JAMES SZENDREY

(first plaintiff/applicant)

and

GAVIN STANLEY NEAL

(second plaintiff/applicant)

and

STEVEN JAMES ISLES

(defendant/respondent)

FILE NO:

D138 of 2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

9 April 2020

DELIVERED AT:

Cairns

HEARING DATE:

14 February 2020

JUDGE:

Morzone QC DCJ

ORDER:

The applications are adjourned to 9:00 am on 21 August 2020; 1.

The defendant must file and serve by 4:00 pm 21 July 2020 an amended or a separate application (Form 9) applying for leave to withdraw admissions to paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14 and/or 15 of the statement of claim (as applicable);2.

The defendant must file and serve by 4:00 pm 21 July 2020 an affidavit (Form 46) sworn by oath or affirmation in support of his application(s), which must:3.

Explain on oath by reference to a proposed draft defence (to be prepared and exhibited), and any other documents:(a)

For each denial (if any) in the defendant’s draft defence - the reasons for contesting each separate allegation and his belief as to why the allegation cannot be admitted.(i)

For each non-admission (if any) in the defendant’s draft defence - (ii)

A.   The reasonable inquiries he has made to find out whether the allegation is true or untrue; and

B.   Why he remains uncertain as to the truth or falsity of the allegation.

Exhibit the proposed draft defence (Form 17) upon which he intends to rely to defend the proceeding, which must:(b)

Plead separately and directly to each allegation in the plaintiff’s statement of claim filed 8 August 2019;(i)

For each pleaded denial or non-admission of an allegation of fact, provide a direct explanation for the defendant’s belief that the allegation is untrue or cannot be admitted;(ii)

Must comply with the rules for pleadings, especially: rr 149, 150(2) & (4), 151, 152, 153, 154, 157, 160, 165(1), 166 and 382(7) of the Uniform Civil Procedure Rules (Qld);1999 (iii)

Mark up all amendments by lining through those parts of the original defence filed 8 October 2019 that are deleted and underlining those parts of that defence that are added to the amended document.(iv)

Exhibit any other relevant documents relied upon to support the explanations in the affidavit.(c)

Costs reserved.4.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – APPLICATION – ADMISSIONS – WITHDRAWAL – where plaintiff applies for judgement – where the defendant cross-applies for leave to file an amended defence – where an amended defence seeks to withdraw express and deemed admissions – whether adequate explanation for how admissions came to be made – where defendant is of ill health – whether adequate explanation for delay – where possible merit in defence and prospect of evidence enlivening a serious question to be tried – where in the interests of justice more time and prescription of supporting a deficient application – costs reserved.

Legislation

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 Szendrey v Isles

Details

AGLC: Szendrey v Isles [2020] QDC 53
Case: [2020] QDC 53
Decision Date: 9 April 2020

CaseChat Overview and Summary

In the case of Szendrey v Isles, the plaintiff sought judgment against the defendant following admissions made by the defendant in relation to various allegations set out in the plaintiff's statement of claim. The defendant cross-applied for leave to amend his defence, seeking to withdraw the admissions made. The matter was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issue before the court was whether the defendant had provided an adequate explanation for the making of the admissions and for the delay in seeking to withdraw them. The court also considered the possible merits of the defendant's case and the prospect of evidence that could enliven a serious question to be tried. The court was required to balance the defendant's ill health and the interests of justice in determining whether to grant leave to amend the defence.

The court found that the defendant had not provided an adequate explanation for the making of the admissions or for the delay in seeking to withdraw them. However, the court also found that there was a possible merit in the defendant's case and that there was a prospect of evidence that could enliven a serious question to be tried. The court determined that it was in the interests of justice to grant leave to amend the defence, but that this should be subject to certain conditions. The court ordered that the defendant must file an amended or separate application and supporting affidavit by a specified date, which must explain the reasons for contesting each allegation and provide a proposed draft defence. The court also ordered that costs be reserved.

The court's final orders were that the applications be adjourned to a specified date, that the defendant must file an amended or separate application and supporting affidavit by a specified date, and that costs be reserved. The court emphasised the importance of the defendant providing a thorough and satisfactory explanation for the making of the admissions and for the delay in seeking to withdraw them, and warned that failure to comply with the orders could result in adverse consequences.

Orders

Orders of the court

The applications are adjourned to 9:00 am on 21 August 2020; 1.

The defendant must file and serve by 4:00 pm 21 July 2020 an amended or a separate application (Form 9) applying for leave to withdraw admissions to paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14 and/or 15 of the statement of claim (as applicable);2.

The defendant must file and serve by 4:00 pm 21 July 2020 an affidavit (Form 46) sworn by oath or affirmation in support of his application(s), which must:3.

Explain on oath by reference to a proposed draft defence (to be prepared and exhibited), and any other documents:(a)

For each denial (if any) in the defendant’s draft defence - the reasons for contesting each separate allegation and his belief as to why the allegation cannot be admitted.(i)

For each non-admission (if any) in the defendant’s draft defence - (ii)

A. The reasonable inquiries he has made to find out whether the allegation is true or untrue; and

B. Why he remains uncertain as to the truth or falsity of the allegation.

Exhibit the proposed draft defence (Form 17) upon which he intends to rely to defend the proceeding, which must:(b)

Plead separately and directly to each allegation in the plaintiff’s statement of claim filed 8 August 2019;(i)

For each pleaded denial or non-admission of an allegation of fact, provide a direct explanation for the defendant’s belief that the allegation is untrue or cannot be admitted;(ii)

Must comply with the rules for pleadings, especially: rr 149, 150(2) & (4), 151, 152, 153, 154, 157, 160, 165(1), 166 and 382(7) of the Uniform Civil Procedure Rules (Qld);1999 (iii)

Mark up all amendments by lining through those parts of the original defence filed 8 October 2019 that are deleted and underlining those parts of that defence that are added to the amended document.(iv)

Exhibit any other relevant documents relied upon to support the explanations in the affidavit.(c)

Costs reserved.4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Szendrey & Anor v Isles [2020] QDC 53
PARTIES:	STEVEN JAMES SZENDREY (first plaintiff/applicant) and GAVIN STANLEY NEAL (second plaintiff/applicant) and STEVEN JAMES ISLES (defendant/respondent)
FILE NO:	D138 of 2019
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Cairns
DELIVERED ON:	9 April 2020
DELIVERED AT:	Cairns
HEARING DATE:	14 February 2020
JUDGE:	Morzone QC DCJ
ORDER:	The applications are adjourned to 9:00 am on 21 August 2020; 1. The defendant must file and serve by 4:00 pm 21 July 2020 an amended or a separate application (Form 9) applying for leave to withdraw admissions to paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14 and/or 15 of the statement of claim (as applicable);2. The defendant must file and serve by 4:00 pm 21 July 2020 an affidavit (Form 46) sworn by oath or affirmation in support of his application(s), which must:3. Explain on oath by reference to a proposed draft defence (to be prepared and exhibited), and any other documents:(a) For each denial (if any) in the defendant’s draft defence - the reasons for contesting each separate allegation and his belief as to why the allegation cannot be admitted.(i) For each non-admission (if any) in the defendant’s draft defence - (ii) A. The reasonable inquiries he has made to find out whether the allegation is true or untrue; and B. Why he remains uncertain as to the truth or falsity of the allegation. Exhibit the proposed draft defence (Form 17) upon which he intends to rely to defend the proceeding, which must:(b) Plead separately and directly to each allegation in the plaintiff’s statement of claim filed 8 August 2019;(i) For each pleaded denial or non-admission of an allegation of fact, provide a direct explanation for the defendant’s belief that the allegation is untrue or cannot be admitted;(ii) *Must comply with the rules for pleadings, especially: rr 149, 150(2) & (4), 151, 152, 153, 154, 157, 160, 165(1), 166 and 382(7) of the Uniform Civil Procedure Rules* (Qld);1999 (iii) Mark up all amendments by lining through those parts of the original defence filed 8 October 2019 that are deleted and underlining those parts of that defence that are added to the amended document.(iv) Exhibit any other relevant documents relied upon to support the explanations in the affidavit.**(c) Costs reserved.4.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – APPLICATION – ADMISSIONS – WITHDRAWAL – where plaintiff applies for judgement – where the defendant cross-applies for leave to file an amended defence – where an amended defence seeks to withdraw express and deemed admissions – whether adequate explanation for how admissions came to be made – where defendant is of ill health – whether adequate explanation for delay – where possible merit in defence and prospect of evidence enlivening a serious question to be tried – where in the interests of justice more time and prescription of supporting a deficient application – costs reserved. Legislation