DISTRICT COURT OF QUEENSLAND
CITATION:
Tyrrell & Anor v McNab Constructions Pty Ltd & Ors [2013] QDC 165
PARTIES:
KELLIE TYRRELL
(first plaintiff)and
MARK JOHN ROBERT
(second plaintiff)v
McNAB CONSTRUCTIONS PTY LTD
ACN 073311681
(first defendant)and
MICHAEL JON McNAB
(second defendant)and
LISA McNAB
(third defendant)FILE NO/S:
D30/2013
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Toowoomba
DELIVERED ON:
19 July 2013
DELIVERED AT:
Rockhampton
HEARING DATE:
10 July 2013
JUDGE:
Smith DCJ
ORDER:
1. Application to strike out of the Statement of Claim is granted and the Statement of Claim is struck out.
2. Application to strike out the action is refused.
3. I give the plaintiffs 28 days to replead their case.
4. I will hear the parties as to costs.
CATCHWORDS:
TORTS- Negligence- Pure economic loss- whether the test for the duty of care is proximity or vulnerability
PRACTICE and PROCEDURE- whether the Statement of Claim sufficiently pleads facts giving rise to the duty of care
Domestic Building Contracts Act 2000 (Q)
Uniform Civil Procedure Rules 1999 (Q) r 171
Bryan v Maloney (1995) 182 CLR 609
Caltex Oil v The Dredge “Willhemstad” (1976) 136 CLR 529
Coco v Ord Minnett Ltd [2012] QSC 324
Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712
Perre and Ors v Apand Pty Ltd (1999) 198 CLR 180
Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq) [2011] QCA 162
Projects Company No. 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor [2011] QCA 102
Project Company No 2 Pty Ltd v Bovis Lend Lease Pty Ltd & Ors [2010] QSC 409
Spencer v The Commonwealth [2010] HCA 28
Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd & Anor [2013] QSC 16
Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Anor (2004) 216 CLR 515
COUNSEL:
Mr T Matthews for the applicant defendants
The Hon M Foley for the respondent plaintiffs
SOLICITORS:
Holding Redlich for the applicant defendants
Clifford Gouldson Lawyers for the respondent plaintiffs
Introduction
[1] This is an application by the defendants to strike out the plaintiffs’ Claim in its entirety pursuant to r 171 of the Uniform Civil Procedure Rules.
[2] Alternatively the application is to strikeout the Statement of Claim as against each defendant.
Principles to be applied
[3] I bear in mind that the Applicant Defendants carry the onus of proof in this application.
[4] When considering a strikeout application I bear in mind that which was stated by Fraser JA in Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq) [2011] QCA 162 at [13] where his Honour said:
“Issues in proceedings should ordinarily be decided at trial and should not be decided summarily unless there is a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’ or a ‘demonstrated certainty of outcome’.”
[5] The court needs to…
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- AGLC
- Tyrrell & Anor v McNab Constructions Pty Ltd & Ors [2013] QDC 165
- Case
- [2013] QDC 165
- Decision Date
CaseChat Overview and Summary
The legal issues before the tribunal included whether the Statement of Claim sufficiently pled facts that gave rise to a duty of care and whether the tribunal should adopt the test for determining the duty of care based on proximity or vulnerability. The tribunal considered various authorities, including cases such as Bryan v Maloney, Caltex Oil v The Dredge “Willhemstad”, and Perre v Apand Pty Ltd, to determine the applicable legal principles. The tribunal also examined the relevant statutory provisions under the Domestic Building Contracts Act 2000 (Q).
The tribunal concluded that the Statement of Claim did not sufficiently plead facts that established a duty of care. It found that the plaintiff had not adequately demonstrated the necessary proximity or vulnerability to justify the imposition of a duty of care. The tribunal noted that the Statement of Claim was vague and did not provide sufficient detail about the relationship between the parties or the circumstances that would give rise to a duty of care. Consequently, the tribunal granted the defendant's application to strike out the Statement of Claim but refused to strike out the action, allowing the plaintiff 28 days to replead their case. The tribunal reserved the question of costs for a later hearing.
The tribunal ordered that the application to strike out the Statement of Claim was granted, and the Statement of Claim was struck out. The application to strike out the action was refused, and the plaintiff was given 28 days to replead their case. The tribunal also indicated that it would hear the parties regarding costs at a later date.
Orders
Orders of the court
1. Application to strike out of the Statement of Claim is granted and the Statement of Claim is struck out.
2. Application to strike out the action is refused.
3. I give the plaintiffs 28 days to replead their case.
4. I will hear the parties as to costs.
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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