Wallis v Hunt

[2018] QDC 234

DISTRICT COURT OF QUEENSLAND

CITATION:

Wallis v Hunt & Ors [2018] QDC 234

PARTIES:

KATRINA LEIGH WALLIS
(plaintiff)

v

ANTHONY (AKA TONY) ROGER HUNT
(first defendant)

and

SIMONE AMBER GORDON
(second defendant)

and

MARK MCKENZIE TAYLOR
(third defendant)

FILE NO/S:

2309/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

15 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2018

JUDGE:

Reid DCJ

ORDER:

1.The plaintiff be given leave to file an amended claim and statement of claim to recover $94,950.99 as damages for breach of contract and/or from money had and received, generally in accordance with paragraphs 1-18 of the proposed amended statement of claim.   

CATCHWORDS:

Application to set aside claim – conditional appearance – original claim significantly misguided – proposed amended claim – claim for “moneys advanced and restitution” – relevant factual assertions – crystallisation of plaintiffs alleged loss – limitation period – amendment raises new cause of action – whether arises out of same facts as original cause – part of proposed claim excluded – leave to amend balance of claim

COUNSEL:

L Copley for the defendants

SOLICITORS:

M Fisher (solicitor) with SJ Gurnsey for the plaintiff

Macphersen Kelley for the defendants

1. In her original claim the plaintiff sought $94,950.99 by an alleged claim “for restitution and return of moneys… advanced to the defendants in January and February 2010”.  She also sought an order for the appointment of statutory trustees for sale of a property at Wynnum.  That latter claim has, in a proposed amended claim and statement of claim, been abandoned.  The defendants have applied to set the claim aside under r 16 of UCPR having, on 27 July 2018, filed a conditional notice of intention to defend.

1. In a letter to the plaintiff’s solicitor on 19 July, the defendants’ solicitor quite properly drew the plaintiff’s solicitor’s attention to what were said to be numerous difficulties in the claim and statement of claim.  These included:

1.          The proceedings were against the wrong parties, identifying for the information of the plaintiff the parties who were said to hold units in the Four Amigos Property Trust, which it was said had purchased the property;

2. The property was not, and had not ever been, held in co-ownership, so that no order under s 38 of the Property Law Act was possible.

3.          The statement of claim lacked any particularity regarding the terms of any agreement.

1. In relation to the claim for $94, 950.99 the letter stated:

“The claim seeks restitution and return of moneys in the amount of $94,950.99 but the alleged advance of those moneys by your client has not been pleaded in the statement of claim and requires significant further particulars.”

1. The statement of claim did not plead any contract with the defendants, lacked any particularity regarding the terms of any agreement in respect of the property, and lacked any particularity about the $94,950.99 said to have been “invested into the property”.

1. At the hearing of the Defendant’s application to set aside the…