Woods v Reeve
[2014] QDC 52
•Ex tempore 17 March 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | Woods v Reeve [2014] QDC 52 |
PARTIES: | WARREN LEE WOODS (Appellant/Defendant) v RUSSELL CHARLES REEVE (Respondent/Plaintiff) |
FILE NO/S: | 3538/2013 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court in Brisbane |
DELIVERED ON: | Ex tempore 17 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 March 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Appeal allowed 2. Set aside the orders made by the learned Magistrate on 19 August 2013 3. Respondent pay the Appellant’s costs of the appeal on the indemnity basis 4. Costs before the learned Magistrate below be costs in the cause |
CATCHWORDS: | PRACTICE - ACTION - SETTING ASIDE JUDGMENT - APPEAL AND NEW TRIAL - COSTS - OFFERS TO SETTLE - SUMMARY JUDGMENT FOR THE PLAINTIFF - R292 - whether the learned Magistrate erred in granting summary judgment to the Respondent/Plaintiff - whether the Appellant/Defendant raised sufficient material in defence of the Respondent’s/Plaintiff’s claim so as to show a real prospect of successfully defending all or part of the Respondent’s/Plaintiff’s claim Legislation Uniform Civil Procedure Rules 1999 (Qld) rule 292 |
COUNSEL: | Mr MJ May for the Appellant/Defendant Mr DJ Topp for the Respondent/Plaintiff |
SOLICITORS: | Cooper Grace Ward for the Appellant/Defendant Conradie & Associates for the Respondent/Plaintiff |
HIS HONOUR: This is an appeal against the whole of the decision of Magistrate Daley of the Magistrates Court of Queensland who on the 19th of August 2013 gave summary judgment in the amount of $14,055.68 in favour of the Plaintiff, now the Respondent, against the Defendant, now the Appellant, being $11,527 for part of the claim, plus interest of $1,342.18 and costs of $1,186.50. The appeal is on the grounds that the learned Magistrate erred in failing to find that a $38,500 bank guarantee should have been applied in reduction of the undisputed liability of the Appellant and Respondent, in respect of which the Respondent claims contribution.
There is no doubt that the Appellant and the Respondent were directors of Sunstate Transport Services Proprietary Limited (Sunstate). Further, that they entered into a lease of premises in Acacia Ridge from two companies in their capacity as trustee. Pursuant to the lease, Sunstate provided the lessors with a $38,500 bank guarantee. The Appellant and the Respondent also personally guaranteed Sunstate’s obligations under the lease. There is also no dispute that Sunstate entered into administration on the 25th of August 2010. On 30 November 2010 the administration gave notice to the lessors that Sunstate would be delivering up possession of the premises on 1 December 2010.
Subsequently, the lessors sent a demand to the Appellant and the Respondent for $98,299.52, purportedly pursuant to the guarantee of Sunstate’s obligations on the lease. The letter of demand noted that the bank guarantee had been applied in reduction of the amount owing. On 31 October 2011, the lessors commenced proceedings against the Appellant and the Respondent by filing a claim and a statement of claim in the Magistrates Court. It appears that after these proceedings were commenced the Respondent entered into settlement negotiations with the lessors, culminating in a settlement deed, by which the Respondent paid the lessors $104,484.14, being the full amount of the claim plus costs and interest.
The Appellant was not a party to the settlement deed. Then the Respondent commenced the current proceedings against the Appellant on 1 August 2012, claiming a contribution for half of the amount paid to the lessors, pursuant to the settlement deed. The Appellant filed a defence in those proceedings – in the original proceedings commenced by the lessors and in the subsequent proceedings commenced by the Respondent. On 22 July 2013 the Respondent filed an application for summary judgment. The learned Magistrate hearing the application did express the view that she would not grant the application, as the Appellant had satisfied her that he had a real prospect of success with defending the claim.
However, then the Respondent requested the learned Magistrate grant partial summary judgment for a portion of the Respondent’s claim that could be attributed to unpaid rent. It was submitted that while the Appellant had raised defences to a number of elements of the claim, the liability of the unpaid rent was not disputed by the Appellant. After brief oral argument, the learned Magistrate then did order summary judgment be entered in favour of the Respondent for the amount of $11,527 for part of the claim relating to unpaid rent, plus interest and costs. Mr May, who appears for the Appellant, brought my attention to a letter sent by the lessors to the Appellant and the Respondent dated 25th May 2011.
On the second page it contains a schedule of how the claim by the landlord was made up – by the lessor was made up. In addition, this schedule shows the bond of $38,500 was taken into account; However, Mr May’s submission was that those items in that schedule in this letter were not admitted by the Appellant and were in dispute. Mr Topp, who appears on behalf of the Respondent, submitted, in effect, that there is a paucity of the evidence from the Appellant putting these matters properly in dispute. He says defences to those items have not been expressly pleaded, nor sworn to in affidavit material.
Mr May submits that the learned Magistrate should not have proceeded to discretely take into account one item, namely, the rent, and give summary judgment for that, when all the other items were in dispute and there would have been, if the rent was only taken into account, a credit in his client’s favour by taking into account the $38,500 bond. Both parties provided that bond, so they were equally entitled to a credit for it. Nevertheless, it seems to me, despite Mr Topp’s submissions, that the Appellant did, in paragraph 6 of his affidavit in response to the summary judgment application, swear that the demand from the lessor contained in that letter was not accompanied by any supporting documentation such as quotes or receipts for repair work carried out.
Further, he put in issue some of the items, for example, electrical repairs, painting, and carpet. In my view, the Appellant was entitled to put in issue items that he said that he was not aware of. In his defence to the proceedings brought by the lessor, while he did not expressly take issue with each item and plead something specific about each item referred to in that letter, he said he was unable to plead to those allegations until the allegations were properly particularised and disclosure had been completed. In my opinion, he was not to be treated as not being worthy of credit just because he did not know specifically about each and every item that was being claimed.
Therefore, in my view, the Appellant did raise sufficient material to lead to the learned Magistrate not giving summary judgment. That, in fact, was the conclusion the learned Magistrate reached at first instance, but was then persuaded to look at a specific item. I think in that respect, when the learned Magistrate was persuaded to look at a specific item and did so, the learned Magistrate was in error. Rule 292 of the Uniform Civil Procedure Rules,[1] of course, provides that, “A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.”
[1] Uniform Civil Procedure Rules 1999 (Qld).
However, subjection (2) provides that:
If the court is satisfied that the defendant has no real prospect of success with defending all or a part of the plaintiff’s claim and there is no need for a trial of the claim or part of the claim, the court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.
In my opinion, in this case, the Defendant showed there was a real prospect of successfully defending all or part of the Plaintiff’s claim and that there was a need for a trial of the claim or the part of the claim for which summary judgment was ultimately given. In those circumstances, I allow the appeal and I set aside the orders made by the learned Magistrate on the – was it – 19 of August 2013. Anything else?
MR MAY: Your Honour, in respect of the costs of the appeal, I make a submission for indemnity costs on the basis that my client offered to settle the appeal with no order as to costs on the basis that the order below be set aside. And that offer was rejected.
HIS HONOUR: Yes. What do you say, Mr Topp?
MR TOPP: Your Honour, the appeal was – the appeal stems from what we respectfully submit was, nonetheless, a legitimate application. There are involved some discrete issues of law involved with both this appeal and the hearing before the Magistrate. In our respectful submission, there should be no costs of the appeal and – or, alternatively, that the appeal costs be costs of the parties in the proceeding and dealt with by the Magistrate when this matter goes to the trial – to a trial in the Magistrates Court.
HIS HONOUR: How did you make your offer? Was it in writing?
MR MAY: Yes, your Honour. I’ve got an affidavit that proposes to ‑ ‑ ‑
HIS HONOUR: But you don’t dispute that there was an offer made that you – that the appeal be allowed with no order as to costs?
MR TOPP: I’d have to have another look at it. I accept that an offer was – well, we did receive that letter. I can’t say that we didn’t.
HIS HONOUR: Yes. All right. In the circumstances, on the question of costs, I order the Respondent pay the Appellant’s costs of the appeal on the indemnity basis. Yes. Thank you.
HIS HONOUR: No. Well, anyway, I just want to add this one: costs before the learned Magistrate below, be costs in the cause.
MR MAY: Thank you, your Honour.
HIS HONOUR: Yes. Are you happy with that, Mr Topp – they be costs in the cause.
MR TOPP: We’re happy with that, your Honour.
HIS HONOUR: Yes. All right. Thank you.
MR TOPP: Thank you, your Honour.
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