Yates v Bluestone Servicing Pty Ltd - [2024] QDC 129

DISTRICT COURT OF QUEENSLAND

CITATION:

Yates and Anor v Bluestone Servicing Pty Ltd and Anor [2024] QDC 129

PARTIES:

Beth Alania Yates and Peter Lindsay Yates

(Plaintiffs/Respondents)

v

Bluestone Servicing Pty Ltd

ACN 122 698 328

(First Defendant/Applicant)

and

Permanent Custodians Limited

ACN 001 426 384

(Second Defendant/Applicant)

FILE NO:

D80 of 2023

DIVISION:

Civil

PROCEEDING:

Interlocutory application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

22 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2024

JUDGE:

Byrne KC DCJ

ORDERS:

1.   Paragraphs 36, 37, 38, 40 and 46 of the Amended Statement of Claim are struck out with leave to replead in each instance.

2.   The application is otherwise refused.

3.   I will hear the parties as to an appropriate timetable to set for filing and other steps in the matter, as well as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – STRIKING OUT – where the plaintiffs commenced proceedings for damages for breach of contract, breach of duty and breach of statute against both defendants – where an amended statement of claim and amended defence were filed – where the defendants contend that the plaintiffs failed to properly plead all material facts and particulars resulting in vague and ambiguous pleadings and, in one instance, where the allegation is vexatious – where the defendants filed an application to strike out specific paragraphs of the amended statement of claim, or alternatively, seek an order for the delivery of further and better particulars – where the plaintiffs resist both applications – whether the specified pleaded paragraphs of the amended statement of claim should be struck out.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr. 5, 149(1), 155, 158, 161, 171, 444, 445.

CASES:

Brightman & Ors v Royal Pines Projects Pty Ltd [2024] QSC 149.

Equititrust Limited v Tucker (No. 2) [2019] QSC 248.
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241.
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15.
Virgtel Limited v Zabusky [2008] QSC 213.

COUNSEL:
Mr J. Lee for the plaintiffs/respondents.

Ms D. Worrell for the Defendants/Applicants.

SOLICITORS:
Seraphus Solicitors for the plaintiffs/respondents.

Piper Alderman for the defendants/applicants.

Background and issues

The plaintiffs commenced proceedings for damages based in breach of contract, breach of duty (negligence) and breach of statute against both defendants. An amended Statement of Claim (“ASOC”) was filed on 28 February 2024 and an amended Defence (“AD”) was filed on behalf of both defendants on 26 March 2024.
After an exchange of correspondence pursuant to rr. 444 and 445 of the UCPR, the defendants filed an application to strike out specific paragraphs of the ASOC pursuant to r. 171 of the UCPR, namely paragraphs 2(c), 2(d), 36, 37, 38, 40, 41, 44, 46 and 47, or alternatively, pursuant to r. 161 of the UCPR, seeking an order for the delivery of further and better particulars of those paragraphs. The plaintiffs resist both applications.
The function of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yates v Bluestone Servicing Pty Ltd

Details

AGLC: Yates v Bluestone Servicing Pty Ltd [2024] QDC 129
Case: [2024] QDC 129
Decision Date: 22 August 2024

CaseChat Overview and Summary

In the case of Yates v Bluestone Servicing Pty Ltd, the plaintiffs initiated legal action against both defendants, seeking damages for alleged breaches of contract, duty, and statutory obligations. The defendants, in response, filed an amended defence and subsequently lodged an application to strike out certain paragraphs from the plaintiffs' amended statement of claim, or alternatively, to obtain an order for the delivery of further and better particulars. The defendants argued that the plaintiffs' pleadings were vague and ambiguous, and in one instance, vexatious. The plaintiffs opposed the application, leading to the court's consideration of whether specific paragraphs of the amended statement of claim should be struck out.

The court examined the defendants' contentions that the plaintiffs had failed to adequately plead material facts and particulars, resulting in vague and ambiguous pleadings. Additionally, the defendants claimed that one allegation was vexatious. The plaintiffs, however, resisted these arguments, maintaining that their pleadings were sufficient. The court had to determine whether the specified paragraphs of the amended statement of claim should be struck out and if any further particulars were necessary.

In its decision, the court ruled that paragraphs 36, 37, 38, 40, and 46 of the amended statement of claim were to be struck out, granting leave to the plaintiffs to replead these sections. The application to strike out other paragraphs, or to order further particulars, was refused. The court will convene with the parties to establish an appropriate timetable for filing and other procedural steps in the matter, as well as to address the issue of costs.

In summary, the court struck out certain paragraphs from the amended statement of claim and allowed for repleading. The application to strike out other paragraphs and to obtain further particulars was dismissed. The court will set a timetable for the next steps in the proceedings and determine the allocation of costs.

Orders

Orders of the court

1. Paragraphs 36, 37, 38, 40 and 46 of the Amended Statement of Claim are struck out with leave to replead in each instance.

2. The application is otherwise refused.

3. I will hear the parties as to an appropriate timetable to set for filing and other steps in the matter, as well as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Yates and Anor v Bluestone Servicing Pty Ltd and Anor [2024] QDC 129
PARTIES:	Beth Alania Yates and Peter Lindsay Yates (Plaintiffs/Respondents) v Bluestone Servicing Pty Ltd ACN 122 698 328 (First Defendant/Applicant) and Permanent Custodians Limited ACN 001 426 384 (Second Defendant/Applicant)
FILE NO:	D80 of 2023
DIVISION:	Civil
PROCEEDING:	Interlocutory application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	22 August 2024
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2024
JUDGE:	Byrne KC DCJ
ORDERS:	1. Paragraphs 36, 37, 38, 40 and 46 of the Amended Statement of Claim are struck out with leave to replead in each instance. 2. The application is otherwise refused. 3. I will hear the parties as to an appropriate timetable to set for filing and other steps in the matter, as well as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – STRIKING OUT – where the plaintiffs commenced proceedings for damages for breach of contract, breach of duty and breach of statute against both defendants – where an amended statement of claim and amended defence were filed – where the defendants contend that the plaintiffs failed to properly plead all material facts and particulars resulting in vague and ambiguous pleadings and, in one instance, where the allegation is vexatious – where the defendants filed an application to strike out specific paragraphs of the amended statement of claim, or alternatively, seek an order for the delivery of further and better particulars – where the plaintiffs resist both applications – whether the specified pleaded paragraphs of the amended statement of claim should be struck out.
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld) rr. 5, 149(1), 155, 158, 161, 171, 444, 445.
CASES:	Brightman & Ors v Royal Pines Projects Pty Ltd [2024] QSC 149. Equititrust Limited v Tucker (No. 2) [2019] QSC 248. Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241. Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15. Virgtel Limited v Zabusky [2008] QSC 213.
COUNSEL:	Mr J. Lee for the plaintiffs/respondents. Ms D. Worrell for the Defendants/Applicants.
SOLICITORS:	Seraphus Solicitors for the plaintiffs/respondents. Piper Alderman for the defendants/applicants.