Wesfarmers Landmark (Qld) Pty Ltd v Darley

[2005] QDC 199

[2005] QDC 199

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3299 of 2004

WESFARMERS LANDMARK (QLD) PTY LTD (ACN 008 743 217)	Plaintiff
and
KEVIN DARLEY	Defendant

BRISBANE

..DATE 14/06/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 374 - guillotine-type order against counterclaiming defendant if failure to comply with a prior order for disclosure (relating to damages allegedly suffered by plaintiff's supplying incorrect cattle) - court declined to incorporate guillotine order in new order for particulars of the counterclaim.

HIS HONOUR:  Orders as per paragraphs 3 and 4 of the plaintiff's application filed 1st June 2005, except that the time allowed for giving particulars be 14 days from today; ie 28th June 2005.

Order that judgment be entered for the plaintiff for $37,081 together with interest at nine per cent per annum from the date of filing of the claim in the Magistrates Court on 4th July 2005 unless the defendant's solicitor files an affidavit on or before the 1st July 2005 confirming that the defendant has duly made disclosure pursuant to the order of Senior Judge Skoien of 11th May 2005. 

Adjourn the application to 5th July 2005.

...

HIS HONOUR: The plaintiff is seeking judgment under rule 374 of the UCPR on the basis of the defendant's failure to make disclosure in relation to damages claimed in the defence and counterclaim, which disclosure was ordered by Senior Judge Skoien on 11th May 2005.

That disclosure goes to the heart of this matter.  The plaintiff is suing for the price of cattle which it supplied to the defendant.  Mr Darley asserts that the wrong cattle were supplied, occasioning him significant damages:  indeed, damages in excess of the limit of jurisdiction in the Magistrates Court.  That led to the proceeding being removed to this Court, whether it was necessary or not.

The defendant is located in the Stanthorpe area and that is said to be an important aspect of the difficulties that had been experienced in getting Mr Darley to comply with what is required of him in the action, and particularly what is required by Judge Skoien's order.

Mr Seccombe is here effectively pleading for more time which, in the circumstances, I think the Court ought to allow by adjourning the application.

A second aspect of it is the plaintiff's application for further and better particulars of the amended defence and counterclaim in accordance with the plaintiff's request for such particulars of 12th May 2005.  That relief ought to be granted and also the costs of the application for particulars.

I think it would be excessively peremptory to award the plaintiff judgment in the circumstances, but I have been prepared to order that a judgment be entered for the plaintiff on 4th July 2005 for the $37,081 claimed, together with interest at the Supreme Court Act rate of nine per cent per annum from the date of filing of the claim in the Magistrates Court unless the defendant's solicitor files an affidavit on or before 1st July 2005 confirming that the defendant has duly made disclosure pursuant to the order of Senior Judge Skoien of 11th May 2005.

The application will be adjourned to 5th July 2005.  Mr Locke sought that the guillotine type order for judgment be extended to cover default which may by then have occurred if the particulars I am ordering are not forthcoming by the deadline of 28th June 2005.

Again, I think that would be excessively peremptory, but the fact is that even if disclosure has been attended to, the defendant will be in an embarrassing situation on 5th July 2005 when the application is adjourned to if there has been a new default in compliance with the order for particulars I make today. There will be a new basis for potential use by the plaintiff of rule 374.

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