Yarwood v Smith

[2018] QSC 279

SUPREME COURT OF QUEENSLAND

CITATION:

Yarwood v Smith [2018] QSC 279

PARTIES:

JOSEPH WILLIAM SMITH

(applicant)

v

MICHAEL DERMOTT YARWOOD
(respondent)

FILE NO/S:

BS No 5866 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 November 2018, Delivered orally

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2018

JUDGE:

Martin J

ORDER: 

1.   The Applicant have Judgment against the Respondent on the Respondent’s Claim;

2.   Application for Summary Judgment in respect of part of the Counterclaim, namely $1,650,000.000, is adjourned for further directions.

3.   The parties will be heard as to costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the applicant seeks summary judgment on the plaintiff’s claim – where plaintiff claims monies due and payable following the alleged termination of an agreement – where inconsistent and contradictory evidence has been presented – whether there is a triable issue of law or no real prospect of succeeding

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the applicant seeks summary judgment on the applicant’s counterclaim – where monies were withheld by the State on retention – where an agreement provided that the amount was to be paid to the Applicant – whether the court is persuaded to the high degree of certainty necessary to give judgment
Haggarty v Wood (No 2) [2015] QSC 244
Uniform Civil Procedure Rules 1999 (Qld), rr 292, 293

COUNSEL:

D Marks QC and C D Coulsen for the applicant
M Yarwood for the respondent

SOLICITORS:

QBM Lawyers for the applicant
Respondent is self-represented

1. There are two applications before the Court by the first defendant, Mr Smith.  In the first, he seeks judgment against the plaintiff on his claim on a summary basis, or, alternatively, that the statement of claim be struck out.  Secondly, he seeks judgment on part of his counterclaim in the amount of $1.65 million. 

2. I will deal first with the application under rule 293 of the Uniform Civil Procedure Rules 1999 (Qld), which allows for judgment in favour of a defendant against the plaintiff. The principles are well known. As with rule 292, an applicant for summary judgment must satisfy the court that:

   (a) the respondent has no real prospect of succeeding on all or part of its claim; and

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

3. These rules have been considered in the number of cases and the principles which emerge may be summarised in the following way:

   ·the issues raised in proceedings will be determined summarily only in the clearest of cases;

   ·the words “no real prospect of succeeding” directs the court to the need to see whether there is a realistic as opposed to a fanciful prospect of success;

   ·if there is a triable issue of law, the application should be refused; and

   ·there…