CRU Collective Pty Ltd v Empire Legal Pty Ltd & Ors [2025] QDC 218

[2025] QDC 218 DISTRICT COURT OF QUEENSLAND KENT KC DCJ No 86 of 2024 CRU COLLECTIVE PTY LTD Plaintiff v EMPIRE LEGAL PTY LTD Defendants GEORGE HARRISON SOURRIS AABIGAIL LOUISE WRIGHT SOUTHPORT FRIDAY, 6 JUNE 2025 JUDGMENT HIS HONOUR: [1] This is an application by the applicant-plaintiff for what amounts to summary judgment. The pleadings seek declarations that the first defendant, as the tenant, which is a corporate body, and the second and third defendants, as guarantors and directors of the first defendant, agreed to exercise an option to renew a sublease; and that in the premises that have arisen, they are estopped from denying the existence and validity of the agreement. That leads to other consequences, primarily including damages. [2] The circumstances, broadly, are that the plaintiff was a tenant and sublet part of the -- 1 of 17 -- 2 premises to the first defendant, with whom the second and third defendants are associated. The matter has proceeded from the point of its being filed in April last year, through a defence which was originally delivered in May of last year, to an application last November where the defence was struck out with leave to re-plead. The new and existing defence was filed in accordance with those orders on the 20th of December 2024. On 28 January 2025, the plaintiff filed an amended statement of claim, served the 29th of January. No amended defence has been filed or served in response thereto; and that has consequences, so says the applicant. [3] Importantly – perhaps essentially – on the 17th of March this year, the plaintiff delivered a notice to admit facts, to which there was no response. The result is that the relevant facts were admitted; rule 189(2). If the respondents wished to withdraw those admissions, they would need leave. No such application has been made until today, when Ms Fayad, on behalf of the respondents, made an oral application from the Bar table. [4] Relevantly, the notice to admit facts averred a number of facts, but I think I am right in saying both sides agree that central in importance is paragraph 11 thereof. By making the representation which was an email in December of 2022, or authorising the second defendant to make the written representation, the first defendant exercised its option to enter into a sublease pursuant to clause 7.1 of the sublease. That is the conclusion which gives rise to the plaintiff’s claim; and indeed, in all the circumstances, really makes it irresistible. [5] The applicant also points to a number of constructive admissions it argues are present on the face of the pleadings. Conventionally, bare denials or non-admissions without proper explanations result in deemed admissions. It points out as well that there has been no pleading response to the Amended Statement of Claim, so the extra parts of the Amended Statement of Claim are not put in issue. But centrally, really, is the lack of response to the notice to admit facts. [6] The effect of that state of affairs has been discussed many times, but was particularly referred to, as has been discussed during submissions, in Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 and the leading judgment was written by Chief Justice de Jersey, as his former Excellency then was. Essentially, the procedural guidelines that come from that and other decisions are that one fails to deal with a notice to admit facts at one’s peril. As I say, a -- 2 of 17 -- 3 notice to admit facts was delivered in March of this year, getting close to three months ago now. I think I have been told – I think it is correct to say that this application was filed and, I think, served on the 16th of May; about three weeks ago. [7] The current state of the evidence – in particular, that put on by the respondents to resist summary judgment – includes the affidavit of the second defendant, Mr Sourris, who deals as best as he can, it seems, with the occurrences leading up to December 2022, when he authored the vital email; which is averred and now admitted to amount to an exercise of the option to enter a new sublease. In my view, that affidavit material does not provide any clear or substantial explanation or excuse for the sending of the important email, brief though it is, to avoid the conclusion that is presently established by paragraph 11 anyway, such that – and that affidavit material existing in its present form at this time – it is difficult to say how Mr Sourris could enter into a factual dispute sufficiently substantial to avoid the outcome from paragraph 11 of the notice to admit facts in any event. [8] I mention that state of affairs because it is relevant to the discretion which the respondents seek to have me exercise, to adjourn an application for leave to withdraw the admissions. True it is that the overarching purposes of the Uniform Civil Procedure Rules include – to be reductive about it – treating matters in a practical way, such as to attempt to resolve the real disputes between the parties and one hesitates to shut a party out of its opportunity to have a trial and litigate matters on their merits, including their evidentiary merits. Those are significant considerations, and they are weighed in the exercise of the discretion. [9] What tells against that exercise of that discretion in the respondent’s favour on this occasion is a combination of features. As was said by Justice Applegarth in the authority referred to by Ms Fayad, to paraphrase: the mere fact that one offers to pay costs does not guarantee that one can always have a matter adjourned. This matter has dragged on through a couple of court applications, and the merits of it are such that, in my view, it is appropriate that it be disposed of on this occasion. [10] The new sublease was not drafted and forwarded until the 29th of August 2023, and the respondents, on the 15th of September 2023, indicated their position that they did not wish to continue and they subsequently vacated. Those delays are superficially concerning. They -- 3 of 17 -- 4 apparently arose in the context of the original landlord having passed away and there having to be a transmission by death of the real property into the name of the person who inherited the estate. But in any case, the respondents did nothing in the meantime; although, there is some evidence that, as at July, according to the admissions, the second defendant at least was still persisting in the idea that the option would be exercised. [11] Amongst other things, what the defendants wish to attempt to litigate is the issue of whether or not the second defendant was authorised to effectively exercise the option, and thus whether the first and third defendants would be bound by it. It is true to say that there has been plenty of opportunities to put on material of that kind from any source – Mr Sourris or someone else – and there is no such material. [12] The real difficulty for the respondents in attempting to adjourn the matter to agitate an application to withdraw admissions is that, having been placed on three weeks’ notice, nothing has been done about such an application until now; nor was anything done to plead in response to the Amended Statement of Claim. But certainly, in the last three weeks, if there was to be genuine disputes about either Mr Sourris’ authority, or a genuine attempt to withdraw admissions, there has been time to put the relevant steps into motion. [13] It has been explained from the Bar table by Ms Fayad, who has represented the respondents’ position in court – with respect, thoroughly – and she has explained from the Bar table that some of the delays that she has experienced, in her essentially sole-practitioner legal practice, have included a number of serious health problems earlier in the year. She does not, as I understand it, aver that these health or other problems have been supervening since the 16th of May. Of course, while she has everyone’s sympathy, the fact is that those circumstances – of which the plaintiff was completely unaware until after lunch today – should not be permitted to supervene the interests of justice. [14] My conclusion is that, on all of the material, the applicant-plaintiff is entitled to the judgment it seeks and that comes about because of the state of the evidence, including as supplemented by the admissions. I have been given a draft judgment in terms by Mr Walker on behalf of the applicant. Ms Fayad, do you want to say something about the terms of the judgment? Have you had a chance to look at it? -- 4 of 17 -- 5 MS FAYAD: No, I haven’t. HIS HONOUR: With respect, it seems pretty straightforward. First order is that there is a declaration of the agreement having been made on or about the 16th of December to exercise the option, and that it is valid and binding on the first defendant – which is also estopped from denying its existence – and the plaintiff is entitled to the bond held and the order is that the first and second defendant pay $9,809.66. I think those are the figures mentioned in the pleadings; yes? MR WALKER: Yes. The figure mentioned in the pleading is about $24,000, but I’ve – or – or a little bit more. But we’ve obviously deducted the bond ‑ ‑ ‑ HIS HONOUR: Yes. MR WALKER: ‑ ‑ ‑ from that amount ‑ ‑ ‑ HIS HONOUR: Yes. MR WALKER: ‑ ‑ ‑ to – to reach the 9,000. HIS HONOUR: I mean, I suppose there could be a debate about indemnity costs; but you say they arise because of the terms of the lease, don’t you? MR WALKER: They do. I – I can take your Honour to where they arise. HIS HONOUR: It does not matter. Leases often have that, but – just nominate whatever the clause is. What is it? MR WALKER: Twenty-two-point-one, of ‑ ‑ ‑ HIS HONOUR: Okay. MR WALKER: ‑ ‑ ‑ the head lease – sorry, it’s dealt with in paragraph 24 of my outline, your Honour. -- 5 of 17 -- 6 HIS HONOUR: Right. Okay. So Ms Fayad, do you want to say anything about any of that? MS FAYAD: I’m just reading the – the judgment now. HIS HONOUR: It seems pretty conventional. It is a bit short. MS FAYAD: I mean, we’d – we dispute that the costs of an incidental beyond the indemnity basis – and I understand that they’ve raised the matter of the terms of the lease. HIS HONOUR: Yes. MS FAYAD: It’s ‑ ‑ ‑ HIS HONOUR: Would not be surprising if the – well, I accept what Mr Walker tells me, that the – the lease entitles them to it. MS FAYAD: Yeah, I understand. I ‑ ‑ ‑ HIS HONOUR: Most leases do, you know. MS FAYAD: Understandable. And yes, I’ve – I’ve reviewed the lease, and it does contain that term. I’ll reserve further comment. HIS HONOUR: So anything you want to say in resistance to any of that? MS FAYAD: In resistance to costs on the indemnity basis – where the entirety of the terms of the contract have effectively been vacated for the purposes of this judgment, and the entire claim was made on the basis of deemed admissions and estoppel, it seems almost, in my view, ironic to then rely on a term of the contract to obtain indemnity costs at the end of the proceeding. In terms of seeking costs on the indemnity basis, our – for want of raising further evidence from the Bar table, open offers had been made by our client to resolve these proceedings many, many thousands of dollars ago. -- 6 of 17 -- 7 HIS HONOUR: Well, you probably – I mean, I do not know if you have got any. But this is the time when you can refer to without-prejudice correspondence, if it is about costs. MS FAYAD: Well, the – without ‑ ‑ ‑ HIS HONOUR: Is there ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ prejudice ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ any ‑ ‑ ‑ MS FAYAD: So we have made ‑ ‑ ‑ HIS HONOUR: Anything of that nature? MS FAYAD: ‑ ‑ ‑ correspondence offering to settle the matter for an amount in and around $7,000. And this was as far back as December. HIS HONOUR: Yes. But see, they have done better than that, see. MS FAYAD: I understand that. The other matter is, your Honour, in terms of the quantum of the damages, the – there’s no evidence before this court, your Honour, except for Mr Bulger’s – Mr Bulger’s affidavit material, which exhibits no evidence as to what the legal costs are, the advertising costs, and a number of other matters that determine the quantum. The only evidence that’s actually affixed to that which forms the basis of the calculation, the 24,000-some dollars, is the new sublease. And the comparison is from the position of the plaintiff, as it were, at – the position of the plaintiff, as it were ‑ ‑ ‑ HIS HONOUR: But the quantum ‑ ‑ ‑ MS FAYAD: The quantum ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ is something that is pleaded. Is there any dispute about it on the ‑ ‑ ‑ -- 7 of 17 -- 8 MS FAYAD: There ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ pleadings? MS FAYAD: Well, I am disputing the quantum. So in – in the – now that your Honour has made his judgment in favour – summary judgment, the question then becomes the quantum of the ‑ ‑ ‑ HIS HONOUR: Yes. MS FAYAD: ‑ ‑ ‑ judgment. HIS HONOUR: Yes. MS FAYAD: And the dispute about the quantum is that there’s no evidence before the Court today, your Honour, supporting what that quantum ought to be. HIS HONOUR: But there might not have to be, if it is pleaded and admitted ‑ ‑ ‑ MR WALKER: Sorry. HIS HONOUR: ‑ ‑ ‑ you see. MR WALKER: It’s – it’s in the affidavit of Mr Bulger. HIS HONOUR: Yes. MS FAYAD: But it’s not pleaded in ‑ ‑ ‑ MR WALKER: And – sorry. And it’s the – it is pleaded. It’s in a table in the pleading. And it’s the subject of a non-admission, which means that evidence can’t be led about it ‑ ‑ ‑ HIS HONOUR: That is what ‑ ‑ ‑ -- 8 of 17 -- 9 MR WALKER: ‑ ‑ ‑ so we succeed. HIS HONOUR: That is what I thought. Yes. MR WALKER: Thank you. HIS HONOUR: So I – I – I cannot see how you can really enter into – and frankly, that really would be a waste of costs, to enter into an assessment of damages about that kind of money. We are only talking about $24,000-odd. MS FAYAD: Well – well, with respect, your Honour, my learned friend stated that it’s a deemed admission with respect to 24, where the table is included in the pleadings. HIS HONOUR: Yes. MS FAYAD: It’s – that’s an opinion. This isn’t an – a matter that was in the – that was not responded to in the notice to admit facts. In our defence, we indeed deal with paragraph 24. HIS HONOUR: What did you say about it? MS FAYAD: I’m just going back to our defence. MR WALKER: Paragraph 25. It’s a non-admission; or at least an attempt ‑ ‑ ‑ MS FAYAD: So ‑ ‑ ‑ MR WALKER: ‑ ‑ ‑ at one. MS FAYAD: ‑ ‑ ‑ the fact is we state that it’s devoid of meaningful particulars to enable us to ascertain the truth or otherwise of the allegation, and relies on matters pleaded defective. So the – what in fact we are ascertaining by stating that – and again, your Honour, this is why – and I understand that you’ve – you’ve – you’ve given your reasons and you’ve made your judgment, but this now speaks to an issue where, even if it’s the case that you’ve – you’ve -- 9 of 17 -- 10 made the judgment in favour of the plaintiffs, there’s a real issue here as to whether or not the quantum is reasonable and – has been sufficient evidence put before the Court that allows the Court to make that decision as to how much the quantum ought to be of damages. And whilst the only ‑ ‑ ‑ HIS HONOUR: You do not ‑ ‑ ‑ MS FAYAD: There’s ‑ ‑ ‑ HIS HONOUR: You do not plead that it is excessive in 25. You just say ‑ ‑ ‑ MS FAYAD: We – we ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ you need more particulars. MS FAYAD: We say that it’s devoid of such meaningful particulars to enable us to ascertain the truth or otherwise of the allegation. And your Honour, there’s no evidence before this court except for the new tenant’s sublease, which can deal with part of this claim. But it would be against the interests of justice, your Honour, if this ‑ ‑ ‑ HIS HONOUR: But aren’t there fairly good particulars in paragraph 24? MS FAYAD: Well, free - in ‑ ‑ ‑ HIS HONOUR: But ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ paragraph ‑ ‑ ‑ HIS HONOUR: But ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ 24 ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ that is ‑ ‑ ‑ -- 10 of 17 -- 11 MS FAYAD: ‑ ‑ ‑ when we ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ what you say, isn’t it? MR WALKER: Yes. That ‑ ‑ ‑ HIS HONOUR: Or is it 25? MR WALKER: Sorry, that’s what I say, your Honour. And also, because of the way the – so there – two bases. It’s either deemed to be admitted because it’s not a proper non- admission, the way it’s been pleaded – you can’t just say, “I haven’t got enough particulars”, particularly in circumstances where you haven’t made a request for one. And secondly, if it’s deemed – if it’s – even if it was a proper non-admission, it’s not something about which they can lead evidence if it’s the subject of a non-admission. HIS HONOUR: Yes, yes. MR WALKER: And therefore, the only evidence before the Court is that of Mr Bulger, which ‑ ‑ ‑ HIS HONOUR: But – but – but ‑ ‑ ‑ MR WALKER: ‑ ‑ ‑ squares to ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ not only that, you are – which paragraph is it, 24 or 25? MR WALKER: It’s – so 24 and 25 are the – essentially set out ‑ ‑ ‑ HIS HONOUR: So actually ‑ ‑ ‑ MR WALKER: ‑ ‑ ‑ the before and after position. HIS HONOUR: ‑ ‑ ‑ it is 24 to 26 inclusive. -- 11 of 17 -- 12 MR WALKER: Yes. Sorry, your Honour, that’s ‑ ‑ ‑ HIS HONOUR: That ‑ ‑ ‑ MR WALKER: ‑ ‑ ‑ imprecise. HIS HONOUR: That is right, isn’t it? So it is a bit hard to see how you could say that there are not particulars, because you particularise it, don’t you? MR WALKER: We say that very – yes. Thank you. MS FAYAD: Your Honour, again, this is why we made the submission that it would be against the interest of justice. Because in terms of the irregularity of the pleading, your Honour – and I ‑ ‑ ‑ HIS HONOUR: I understand. MS FAYAD: ‑ ‑ ‑ understand you’ve taken into consideration ‑ ‑ ‑ HIS HONOUR: Yes. MS FAYAD: ‑ ‑ ‑ what’s gone on since the 16th of May. Keep in mind, your Honour, that as a relative sole practitioner, I wasn’t back in the office until a few days ago. That being said, your Honour, there’s clear deficiencies in the pleadings that need to be addressed. And the timeline for which I was hospitalised and dealt with – really, we’re dealing with simply the matter of the application today. And I’ve provided before this court, your Honour, case material that says it would actually be contrary to the interests of justice to not allow it to go forward so that the real facts and issue can be tried. The decision is being made not on the real facts but on deemed admissions, your Honour, and that’s as a result of drafting errors. And I would raise to the Court that these drafting errors are so sufficient that the client should not be punished, particularly when there’s case reference material before this court that states that the timing of when an application is made – this matter has not yet been set for trial. -- 12 of 17 -- 13 And I understand that this is a hearing for a – a summary judgment; but the matter’s not yet been set for trial. And I’m – and I – so matters may be continued to be pleaded until it’s set for trial. So in the interests of justice, your Honour, making a summary judgment today on the basis of the issue of rules, when we are raising now issues about the quantum, there’s – it would – it would genuinely deprive the defendant of the opportunity to correct its pleadings. And your Honour, with respect, I’ve – I’ve dealt in matters with senior counsel and silks where matters have been re-pleaded countless times in order for things to be particularised and honed to get them absolutely correctly. And to refuse that to be allowed today, your Honour, and to allow for the quantum to be cited just on the basis of what’s been included in the pleadings – there’s no actual, genuine evidence before the Court; there’s only the technical evidence that your Honour is able to rely on, being the pleading itself. The pleading itself is the evidence, your Honour. So to make a decision on ‑ ‑ ‑ HIS HONOUR: But ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ that ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ Mr ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ basis ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ Walker says that Mr Bulger deposes to it, you see. MS FAYAD: But he’s not exhibited any actual evidence to that. The only evidence ‑ ‑ ‑ HIS HONOUR: But the pleading ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ is ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ sets out the particulars thoroughly ‑ ‑ ‑ MS FAYAD: She sets out ‑ ‑ ‑ -- 13 of 17 -- 14 HIS HONOUR: ‑ ‑ ‑ and ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ in effect, the identical ‑ ‑ ‑ HIS HONOUR: And – and conventionally, I must say, Ms ‑ ‑ ‑ MS FAYAD: Sorry? HIS HONOUR: Conventionally. It is the kind of thing I would expect. And that is exactly what the pleading is. It is exactly the kind of pleading you see in a – a – a rent case, you know. MS FAYAD: Your Honour, Mr Bulger sets out in his affidavit – and it’s – ordinarily, it would be the case that – Mr Bulger’s affidavit deposes to, in effect, an identical chart that’s contained in the pleadings. The only evidence exhibited to that affidavit in support of that position is the new sublease, which allows for the calculation and quantification of the difference in the respective rent positions. HIS HONOUR: Yes. He does not have to have the sublease. He can just depose to it. MR WALKER: We – we do have the sublease in there. HIS HONOUR: People ‑ ‑ ‑ MS FAYAD: I – I’m saying he did have the ‑ ‑ ‑ HIS HONOUR: People do it all ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ sublease, your Honour. HIS HONOUR: ‑ ‑ ‑ the time. MS FAYAD: I understand people depose to things ‑ ‑ ‑ -- 14 of 17 -- 15 HIS HONOUR: He can just jump in the witness box and say it; it is still evidence. MS FAYAD: I mean, with respect, your Honour, I could depose to the fact that I was in the hospital all the way up until yesterday. HIS HONOUR: True. And we have accepted that ‑ ‑ ‑ MS FAYAD: And – and – and ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ and – and acted on it. MS FAYAD: ‑ ‑ ‑ the fact is, your Honour – is that I could depose to – people can depose to anything, but the Court needs to ‑ ‑ ‑ HIS HONOUR: Well, as long as ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ make decisions ‑ ‑ ‑ HIS HONOUR: ‑ ‑ ‑ they do not want to commit perjury, they can. MS FAYAD: Correct. HIS HONOUR: Yes. MS FAYAD: But the Court needs to base its decisions on the evidence before it. So in the totality of the circumstances, there’s issues with the quantum, because the only evidence of this quantum is the actual pleadings themselves. There’s no evidence of this quantum. And these are easily ‑ ‑ ‑ HIS HONOUR: I ‑ ‑ ‑ MS FAYAD: ‑ ‑ ‑ ascertainable. And in fact, there have been disputes, and we – there has been correspondence to the effect ‑ ‑ ‑ -- 15 of 17 -- 16 HIS HONOUR: Okay. MS FAYAD: ‑ ‑ ‑ requesting how these figures got to this point. We’ve also had correspondence ‑ ‑ ‑ HIS HONOUR: Yes MS FAYAD: Open correspondence as to failure to mitigate its costs. And this is an issue that needs to be dealt with before a decision can be made about the judgment; which, if we’re going to have the argument about ‑ ‑ ‑ HIS HONOUR: Just so you know, I – look, I – I think you are probably realise this, but I – I am functus officio on the judgment. Right. I – I have ruled. MS FAYAD: I understand. HIS HONOUR: Okay. We are only about the details of the orders. And the only thing about the detail now is the quantum. And I have heard you at some length about it. Unless you have a – anything else of substance to say about it, I – I am inclined to rule on that as well. MS FAYAD: We’re – the only submission that we have left to make about the quantum is that it ought not to be made today, and it needs to be ventilated and the quantum discussed at a further hearing of the matter. HIS HONOUR: Okay. Thanks. MS FAYAD: Thank you. HIS HONOUR: There will be an order in terms of the draft signed by me and placed with the file. I have already given reasons in relation to the substantive matter of the success of the application. In respect of the most recent argument about the quantum, in my view, the quantum is properly particularised in the pleading and it is deposed to in the applicant’s -- 16 of 17 -- 17 material; and so I do not see any dispute of significance such that there should be an assessment of damages. Okay. Thanks for your help, everyone. MS FAYAD: Thank you. MR WALKER: Thank you, your Honour. ______________________ -- 17 of 17 --