Walpole v J1-Plan Pty Ltd

[2021] QDC 34

DISTRICT COURT OF QUEENSLAND

CITATION:

Walpole & Anor v J1-Plan Pty Ltd [2021] QDC 34

PARTIES:

GARY WALPOLE AND CHRISTINE WALPOLE
(Plaintiffs)

v

J1-PLAN PTY LTD (FORMERLY FINANCIAL TECHNOLOGY SECURITIES PTY LTD) (ACN 060 655 978)
(Defendant)

FILE NO/S:

3811 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 February 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2021

JUDGE:

Kefford DCJ

ORDER:

I order that the Application be dismissed.

CATCHWORDS:

APPLICATION IN PENDING PROCEEDING – where the plaintiff’s statement of claim was filed on 24 October 2018 – where the defendant asserts that the loss was ascertainable on 20 September 2012 – where the plaintiff’s case is not limited to loss sustained as a consequence of following advice to take out a loan – whether there is an insurmountable limitation of actions defence – whether the plaintiff has no real prospect of succeeding on all or a part of the claim – whether it would be appropriate to exercise discretion to give summary judgment for the defendant

APPLICATION IN PENDING PROCEEDING – where the defendant sought alternative relief that the plaintiff’s amended statement of claim be struck out – where the application did not disclose the basis of the alternative relief – whether the application for alternative relief should be entertained

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), r 293

CASES:

Bankier v HAP2 Pty Ltd [2019] QSC 101

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232

Wardley Australia Limited and Anor v Western Australia (1992) 172 CLR 514

COUNSEL:

A C Stumer for the applicant

J P Morris for the respondent

SOLICITORS:

Barry Nilsson for the applicant

Maurice Blackburn for the respondent

1. By its application filed on 18 December 2020, the defendant seeks summary judgment in respect of the whole of the claims against the defendant.  The basis for summary judgment is that there is an insurmountable limitation of actions defence to the causes of action in the statement of claim. 

2. The test for an application of this type is set out in rule 293 of the Uniform Civil Procedure Rules 1999.  It states:

   “(1)A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgement against a plaintiff. 

   (2)If the court is satisfied-

   (a)the plaintiff has no real prospect on succeeding on all or a part of the plaintiff’s claim; and

   (b)there is no need for a trial of the claim or the part of the claim;

   the court may give judgment for the defendant against the plaintiff for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.”

3. In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232, Williams JA observed at 236 [17]:

   “… Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon…