Truran & Storey v. Peekhrst Pty Ltd - [2008] QDC 180

[2008] QDC 180

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2407 of 2006

GUI ARNOLD TRURAN AND PHILIP ARTHUR STOREY	Plaintiffs
and
PEEKHRST PTY LTD	Defendant

BRISBANE

..DATE 02/07/2008

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 374 - judgment against defendant where it failed to comply with an order for disclosure

HIS HONOUR: This is an unusual proceeding. The Court has come to the end of its list for the day. Mr Whelan, the applicant's solicitor is not here. Apparently he was engaged to appear in another court. However, Mr Catchpoole as the solicitor on the record for the defendant company is here, suggesting, as an officer of the Court, that the matter can be dealt without waiting for the arrival of Mr Whelan about which there can't be any confidence that it will occur reasonably soon.

The basis of the application is rule 374 and the defendant's admitted failure to comply with an order made by Judge Kingham on the 29th of February 2008 for disclosure.

The Court record indicates that Mr Catchpoole appeared before her Honour, that's correct?

MR CATCHPOOLE: Yes, your Honour, by consent.

HIS HONOUR: Was Mr Whelan there too?

MR CATCHPOOLE: No, your Honour.

HIS HONOUR: That's, again, an oddity that Mr Whelan did not, although the order sheet shows that he had appeared on an earlier aspect of the matter before Judge Noud on the 20th of December 2007.

The claim is for declarations by the Court to confirm the plaintiffs' view that they terminated a contract to purchase a residential unit and a boat mooring from the defendant "off the plan". It also sought an injunction to restrain the calling-up of some $131,000 to stand as a deposit in the transaction, which was provided by way of a bank guarantee.

As events turned out, the guarantee was called up.
Mr Catchpoole indicates he's not in any position to defend the taking of that step.

In my view, it's a much stronger thing to use rule 374 to enter a judgment against a defendant, than it is to dismiss the claim of a plaintiff for non-compliance with a Court order.

The circumstances are different here in that, while not in a position to consent to the order, because he can't obtain instructions, Mr Catchpoole frankly indicates to the Court that there is nothing he can say against it.

I've identified the material on the Court file which is necessary and sufficient to support the relief sought in the application filed the 17th of June 2008 by the plaintiff.

It is for orders:

1. That the defence of the defendant be struck out and judgment be entered against the defendant.

2. That the defendant pay the plaintiffs' costs of and incidental to this application.
Ordinarily, it would be sufficient to indicate that an order is made in terms of paragraphs 1 and 2. However, the claim seeks a wide range of relief, some of it in the alternative.

It includes injunctive relief to restrain…

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: [2008] QDC 180
Decision Date: 2 July 2008

CaseChat Overview and Summary

In the case of Truran & Storey v. Peekhrst Pty Ltd, the plaintiffs sought a range of remedies against the defendant, including declarations that a contract had been terminated, an injunction to prevent the enforcement of a bank guarantee, and damages. The dispute arose from a failed "off the plan" sale of a residential unit and a boat mooring. The plaintiffs alleged that they had terminated the contract and sought to prevent the defendant from calling up the deposit provided by a bank guarantee. The defendant, however, had failed to comply with an order for disclosure, leading to the application under rule 374 of the Uniform Civil Procedure Rules.

The primary legal issue before the court was whether the defendant's failure to comply with the disclosure order justified the entry of judgment against it. The plaintiffs argued that the defendant's non-compliance warranted the application of rule 374, which allows the court to enter judgment against a party that fails to comply with an order for disclosure. The defendant's solicitor, Mr. Catchpoole, conceded that there was no defence to the application but noted that it was too late to seek injunctive relief regarding the called-up deposit. The court had to determine the appropriate relief, including whether to strike out the defendant's defence and enter judgment in favour of the plaintiffs, and whether to award costs to the plaintiffs.

The court found that the defendant's failure to comply with the disclosure order was sufficient grounds to enter judgment against it under rule 374. The court struck out the defendant's defence and entered judgment in favour of the plaintiffs, as sought in the application. The court also ordered the defendant to pay the plaintiffs' costs of the application, excluding the costs incurred for the hearing on that day. The final orders included declarations that the contract had been terminated, a judgment for the deposit amount, and an order for interest on the deposit. The court declined to grant injunctive relief or confirm a breach of the Trade Practices Act, as these remedies were no longer appropriate given the defendant's non-compliance.

Orders