Yarrum Equities Pty Ltd v McConville

DISTRICT COURT OF QUEENSLAND

CITATION:

Yarrum Equities Pty Ltd v McConville and Anor [2011] QDC 287

PARTIES:

Yarrum Equities Pty Ltd
(Plaintiff/Respondent)

v

Mark Andrew McConville
And

Tracey Lee McConville

(Defendants/Applicants)

FILE NO/S:

D2995/08

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

30 November 2011

DELIVERED AT:

Southport

HEARING DATE:

21 November 2011

JUDGE:

Newton DCJ

ORDER:

Application to file and serve Third Party Notice refused with costs.

Application for order to dispense with signature on Request for Trial Date granted with costs.

CATCHWORDS:

PRACTICE – joinder of parties – application by defendants to file and serve third party notice outside prescribed period – whether leave should be granted – relevant considerations.

Uniform Civil Procedure Rules 1999

MGM Containers Pty Limited v Wockner [2006] QCA 502.

Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.

COUNSEL:

Mr IR Kennedy for the plaintiff/respondent.

Mr AP Hodgson for the defendants/applicants.

SOLICITORS:

McLaughlins Solicitors for the plaintiff/respondent.

AP Hodgson & Associates for the defendants/applicants.

1. This is an application for leave to file a Third Party Notice against Gordon Russell who was the solicitor retained by the defendants to act on their behalf in the purchase of a property the subject of the plaintiff’s claim. The plaintiff’s claim against the defendants is based on a breach of contract.[1] The factual basis of the plaintiff’s claim in this proceeding can be summarised as follows:[2]

   [1] Affidavit of Ian Robert Kennedy, a principal of McLaughlin’s Solicitors, solicitors on the record for the plaintiff, filed 18 November 2011, paragraph 5.

   [2] Ibid, paragraph 6.

(a)        The defendants entered into a contract with the plaintiff to purchase a property being sold by the plaintiff (“the First Contract”);

(b)        The defendants’ breached the First Contract by failing to pay the balance deposit within the time required under the first contract and the plaintiff elected to terminate the First Contract;

(c)        The defendants then entered into a second contract with the plaintiff to purchase the same property (“the Second Contract”) and failed to settle on the Settlement Date;

(d)        The plaintiff elected to terminate the Second Contract; and

(e)        The plaintiff resold the property to a third party (“the Third Contract”) and is claiming the difference in the resale value between the First Contract and/or Second Contract and the Third Contract.

1. The defendants’ proposed Third Party Notice[3] indicates that the essence of the defendants’ claim against Mr Russell is that he allegedly failed to advise them of the risks associated with entering into the Second Contract without the protection of a finance clause and making the contract conditional upon the sale of the defendants’ property in Victoria.  In his affidavit,[4] Mr McConville states that:

“At all materials times the Third Party was retained to act in our best interests and contrary to same, advised ourselves to enter into the second contract without the protection of the finance clause and ancillary sale clause of our property in Victoria. At no material times did the Third Party…