Tynan v Filmana Pty Ltd

[2013] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:

Tynan & Anor v Filmana Pty Ltd & Ors [2013] QSC 32

PARTIES:

DAVID TYNAN and JUDITH GARCIA TYNAN
(Plaintiffs)

v

FILMANA PTY LTD ACN 080 055 429
(first defendant)
AND
ANNA-MARIA SCIACCA
(second defendant)
AND
PHILIPPO SCIACCA
(third defendant)

FILE NO/S:

BS 5923 of 2012

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

26 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2013

JUDGE:

Jackson J

ORDERS:

1.   The judgment of the court is that the plaintiffs do recover damages to be assessed against the defendants; and

2.   The defendants pay the plaintiffs’ costs of the application to be assessed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – Where plaintiffs apply for summary judgment against defendants in respect of liability –– Whether to give judgment on part of the claim for damages for breach of contract to be assessed 

Rules of the Supreme Court (Qld), o 13, r 3; o 18, r 1           
Supreme Court of Queensland Act 1991 (Qld), s 118E
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 366,      r 483, r 493     
Uniform Civil Procedure Rules 2005 (NSW), r 13.1

Associated Bulk Carriers Ltd v Koch Shipping Inc [1977] 2 All ER 254

Foran v Wight[1989] HCA 51; (1989) 168 CLR 385, cited
Producers Co-operative Distributing Society Ltd v Ace Packing Company Pty Ltd [1961] VicRep 15; [1961] VR 85, cited
Stainer v Traggett [1955] 3 All ER 742; [1955] 1 WLR 1275, cited

COUNSEL:

P H Morrison QC and BWJ Kidston for the plaintiffs
B D O’Donnell QC for the defendants

SOLICITORS:

Mahoney Lawyers for the plaintiffs
Tucker & Cowen for the defendants

1. JACKSON J:  The plaintiffs (“the vendors”) apply for summary judgment against the first defendant (“the purchaser”) and the second and third defendants (“the guarantors”) pursuant to UCPR 292 “in respect of liability”.  Alternatively, the vendors apply for an order pursuant to UCPR 483 for the separate determination of “the question of liability”. 

1. The proceeding is one started by claim.  The vendors claim the sum of $2,769,559.43 together with interest to the date of judgment (as a sum owing under contract) or damages for breach of contract and interest on any payment or award of damages under statute.  The same claim is made against the purchaser and the guarantors. 

1. By a contract in writing made on or about 3 October 2010 the vendors agreed to sell land at 29 Lawrence Street, St Lucia in the State of Queensland to the purchaser for the purchase price of $7,000,000 (“the 2010 contract”).  The settlement date was 12 months from the “contract date” which was specified as 9 October 2010.  Settlement was, therefore, to be effected on 10 October 2011. 

1. By separate guarantees made on or about 9 October 2010 and 24 December 2010, the guarantors guaranteed to the vendors the obligations of the purchaser under the contract for purchase of the land.…