Tremco Pty Ltd v Thomson - [2018] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

Tremco Pty Ltd v Thomson [2018] QDC 137

PARTIES:

TREMCO PTY LTD ACN 000 024 064 (Plaintiff)
V

CAROLYN MARY THOMSON (Defendant)

AND

BENTLEYS (SUNSHINE COAST) PTY LTD (formerly known as PWA FINANCIAL GROUP PTY LTD) ACN 010 527 876) (First Third Party)

AND

PETA WENDY GENFELL (Second Third Party)

AND

ULRIKE BENDLE (Third Third Party)

AND

CHERYL BLINCO (Fourth Third Party)

FILE NO/S:

DC No 3868 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Ex tempore on 17 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2018

JUDGE:

Porter QC DCJ

ORDER:

1. Application be dismissed.

2. Costs of the application be costs reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – GENERALLY – where the defendant applies for leave to amend the amended defence in the proceedings – where the application is brought on the first day of trial – where the amendment sought is directed to establishing a judgment was obtained by fraud – whether an arguable case of fraud arises on the proposed pleading and the supporting evidence relied on.

Cases
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Briginshaw v Briginshaw (1938) 60 CLR 336
Expense Reduction Analysts group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Hansen Yuncken Pty Ltd v Ericson [2011] QSC 327
McBride v ASK Funding [2013] QCA 130
McDonald v McDonald (1965) 113 CLR 529
Tremco P/L v Kadoe P/L trading as Kadoe Commercial Coatings [2015] QDC 40

COUNSEL:

M T De Waard for the plaintiff

Defendant, C M Thomson, appearing in person

SOLICITORS:

Mills Oakley for the plaintiff

This is an application for leave to amend the amended defence in these proceedings. The application was brought on the first day of trial, that is, yesterday. It seeks leave to add allegations directed to establishing that a judgment of Andrews DCJ given on 27 September 2015 was obtained by fraud. I first turn to the character of the judgment and its place in these proceedings.
The plaintiff, Tremco, is a creditor of a company known as Kadoe. Tremco supplies waterproofing material and Kadoe carried out waterproofing work. Tremco sued Kadoe for some $146,000 in respect of goods sold and delivered over the period between late 2009 and December 2010. Precise dates of unpaid invoices are not particularly relevant for present purposes but it appears they were incurred in the period between March and December 2010. At the trial the key issue was articulated by his Honour Judge Andrews in Tremco P/L v Kadoe P/L trading as Kadoe Commercial Coatings [2015] QDC 40 in these terms:
[1] The plaintiff’s claim is for $146,210.28 and for interest for moneys due and owing for goods allegedly sold and delivered to the defendant. The issues are whether goods for which payment is demanded were not ordered, not delivered, not picked up, already paid…

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 Tremco Pty Ltd v Thomson

Details

AGLC: Tremco Pty Ltd v Thomson [2018] QDC 137
Case: [2018] QDC 137
Decision Date: 17 April 2018

CaseChat Overview and Summary

Tremco Pty Ltd initiated proceedings against Thomson in a state court, seeking to enforce a judgment obtained against Thomson in another jurisdiction. Thomson applied for leave to amend the amended defence during the first day of trial, aiming to establish that the prior judgment was obtained through fraud. The court had to determine whether the proposed amendment and the accompanying evidence presented a valid case of fraud.

The court considered the legal principles governing amendments in civil proceedings, particularly the need for leave when an application is made late. It assessed whether the proposed amendment, if allowed, would establish an arguable case of fraud. Given that the application came on the first day of trial, the court weighed the impact of any potential delay against the importance of allowing amendments that could affect the outcome of the case. Ultimately, the court concluded that the proposed pleading did not establish an arguable case of fraud based on the evidence provided.

In dismissing the application, the court held that the defendant had not demonstrated a sufficient basis for the amendment, particularly considering the timing of the application and the lack of a convincing case of fraud. The court reserved the costs of the application, indicating that the defendant would bear the costs incurred by the plaintiff in opposing the late amendment.

Orders

Orders of the court

1. Application be dismissed.

2. Costs of the application be costs reserved.

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:	Tremco Pty Ltd v Thomson [2018] QDC 137
PARTIES:	TREMCO PTY LTD ACN 000 024 064 (Plaintiff) V CAROLYN MARY THOMSON (Defendant) AND BENTLEYS (SUNSHINE COAST) PTY LTD (formerly known as PWA FINANCIAL GROUP PTY LTD) ACN 010 527 876) (First Third Party) AND PETA WENDY GENFELL (Second Third Party) AND ULRIKE BENDLE (Third Third Party) AND CHERYL BLINCO (Fourth Third Party)
FILE NO/S:	DC No 3868 of 2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Ex tempore on 17 April 2018
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2018
JUDGE:	Porter QC DCJ
ORDER:	1. Application be dismissed. 2. Costs of the application be costs reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – GENERALLY – where the defendant applies for leave to amend the amended defence in the proceedings – where the application is brought on the first day of trial – where the amendment sought is directed to establishing a judgment was obtained by fraud – whether an arguable case of fraud arises on the proposed pleading and the supporting evidence relied on. Cases Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Briginshaw v Briginshaw (1938) 60 CLR 336 Expense Reduction Analysts group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 Hansen Yuncken Pty Ltd v Ericson [2011] QSC 327 McBride v ASK Funding [2013] QCA 130 McDonald v McDonald (1965) 113 CLR 529 Tremco P/L v Kadoe P/L trading as Kadoe Commercial Coatings [2015] QDC 40
COUNSEL:	M T De Waard for the plaintiff Defendant, C M Thomson, appearing in person
SOLICITORS:	Mills Oakley for the plaintiff