Walsh v Iker

[2019] QDC 225

DISTRICT COURT OF QUEENSLAND

CITATION:

Walsh & Anor v Iker & Ors [2019] QDC 225

PARTIES:

MICHAEL ROBERT WALSH (First Plaintiff) and

SUSAN WALSH (Second Plaintiff)

V

EDWARD ALEXANDER IKER (First Defendant) and

JO-ANNE IKER (Second Defendant) and

EUNEEKE CATTLE COMPANY PTY LTD

ACN 112 009 097 (Third Defendant)

FILE NO/S:

D29/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

12 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2019

JUDGE:

Farr SC DCJ

ORDER:

The application is dismissed

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – where the Third Defendant was joined to the proceedings by consent – where the identity of the recipient of the loan is contested – where the terms of repayment of the principal loan amount and accrued interest are contested – where there is no direct evidence of any oral contract – whether Summary Judgment can be made against the Third Defendant.

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – where the Plaintiffs seek an order striking out the whole of the Third Defendant’s Amended Defence pursuant to Rule 171 of the UCPR – where the Third Defendant’s Amended Defence application is based on the assertion that in the absence of agreement as to the time at which a loan would be repaid, at law a loan is payable on demand – whether the Amended Defence discloses a reasonable defence.

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – where the Plaintiffs seek further, or in the alternative, to strike out the set-off pleaded in the Further Amended Defence of the First and Second Defendants – where the Plaintiff concedes that the Second Defendant may have availability of a set-off against the Second Defendant – whether it would be appropriate to order the strike-out of the set-off raised in the defence of the Third Defendant.

COUNSEL:

M.T de Waard for the Applicants/Plaintiffs

S.B Whitten for the Defendants/Respondents

SOLICITORS:

Macrossan & Amiet Solicitors for the Applicants/Plaintiffs

Kelly Legal for the Defendants/Respondents

Introduction

1. This is the Plaintiffs interlocutory application seeking:

(a) summary judgment pursuant to Rule 292 of the Uniform Civil Procedure Rules (Qld) 1999 (Qld) (“UCPR”) as against the Third Defendant;

(b) further or in the alternative, pursuant to Rule 171 of the UCPR, that either the whole of the Amended Defence of the Third Defendant, or just paragraphs 16 – 25 be struck out;

(c) further or in the alternative, pursuant to Rule 171 of the UCPR, the set-off pleaded in the further Amended Defence of the First and Second Defendants be struck out; and

(d)        costs against the First, Second and Third Defendants.

1. The Defendants submit that the Plaintiffs application should be dismissed with costs.

Background

1. The First and Second Plaintiffs (the Plaintiffs) filed a Claim and Statement of Claim against the First and Second Defendants (the Defendants)…