Body Corporate for the Green Corporate Centre v Loganholme Business Centre [2010] QDC 499

DISTRICT COURT OF QUEENSLAND CITATION: Body Corporate for the Green Corporate Centre Community Titles Scheme 32962 v Loganholme Business Centre [2010] QDC 499 PARTIES: BODY COROPRATE FOR THE GREEN COROPRATE CENTRE COMMUNITY TITLES SCHEME 32962 Plaintiff (Applicant) And LOGANHOLME BUSINESS CENTRE PTY LTD (ACN 107 455 596) AS TRUSTEE UNDER INSTRUMENT NO. 708325019 Defendant (Respondent) FILE NO/S: 771/08 DIVISION: Civil PROCEEDING: Application to strike out defence or in the alternative Summary Judgment ORIGINATING COURT: Brisbane DELIVERED ON: 24 December 2010 DELIVERED AT: Brisbane HEARING DATE: 13 July 2010 JUDGE: Tutt DCJ ORDER: (i) Judgment for the plaintiff for the sum of $23,298.98 plus interest at the current Supreme Court rate pursuant to section 47 of the Supreme Court Act 1995 as amended from the date of claim to the date hereof; (ii) the balance of the claim be determined according to law; (iii) the defendant pay the plaintiff’s costs of and incidental to the application including reserved costs to be agreed or assessed on the standard basis. -- 1 of 6 -- 2 CATCHWORDS: PRACTICE – SUMMARY JUDGMENT - STRIKING OUT OF DEFENCE – Application for striking out of Defence pursuant to r 171 UCPR. or in alternative, application for summary judgment pursuant to r 292 UCPR – relevant test to be applied – where it was agreed that the plaintiff entitled to “shortfall” between claim and defendant’s counter-claim. SOLICITORS: N R Delaney of Collect Success Lawyers for the plaintiff N A Humzy-Hancock of Holman Webb Lawyers for the defendant Introduction: [2] On 6 May 2010 the plaintiff filed an application to the court for a number of orders including: “1. That the Defence of the Defendant be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) on the grounds that it discloses no reasonable defence. 2. Further or in the alternative that summary judgment be awarded to the plaintiff pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld).” [3] The application came on for hearing in the first instance on 20 May 2010 before his Honour Judge McGill SC DCJ at which time there was debate, among other things, “about the state of the pleadings” and it was submitted at that time on behalf of the defendant that it intended to amend its pleadings.1 As a result his Honour adjourned the application to enable the parties to consider their respective positions; the pleadings to be amended and “for the parties to put together a proper argument in relation to the matter as it stands then.”2 1 Hearing Transcript (“H.T”) before McGill SC DCJ, page 9 line 1. 2 Ibid at page 12 line 34. -- 2 of 6 -- 3 Background facts: [4] The plaintiff’s claim filed 3 April 2008 is for “The sum of $71,145.91 being moneys owing by the defendant to the plaintiff for regular periodic contributions to the administrative and sinking funds and for interest and costs recoverable (“levies”) for the period 1 January 2006 to 30 April 2008 in respect of the defendant’s entitlement to Lots 7, 8, 9 and 10 in Community Titles Scheme 32962 …… by the operation of s 59(2)(b) of the Body Corporate and Community Management Act 1997 ……together with interest… and costs……” [5] The defendant filed a defence and counter-claim on 14 May 2008 in which, among other things, it did not admit that it “is in arrears in respect of the payment of the levies …” claimed by the plaintiff and counter-claims against the plaintiff for “the sum of $47,846.93 being costs incurred by the defendant for and on behalf of the plaintiff from 1 May 2006 up to and including 3 April 2008.” [6] The next step in the proceeding was the plaintiff’s application presently before the court filed 6 May 2010. Application Hearing and Submissions: [7] At the hearing of the application on 13 July last, the earlier argument before McGill SC DCJ was revisited during the course of which the following submissions were made: • Whatever the efficacy of the defendant’s pleading might be in respect of its defence and counter-claim there is an agreed shortfall between the plaintiff’s claim and the defendant’s counter claim of $23,298.98 for which the plaintiff seeks judgment pursuant to r 184 of the Uniform Civil Procedure Rules (“UCPR”); -- 3 of 6 -- 4 • In addition to judgment for that amount the plaintiff seeks a further order that “the defendant be compelled to file a new defence and counter claim” in accordance with the defendant’s submissions on 20 May 2010 before McGill SC DCJ; • The defendant submitted that following the earlier hearing counsel has reviewed the pleadings filed and as a result it is now the defendant’s view that on the state of the pleadings “there’s no requirement that my client had to file an amended defence or counter-claim nor was it ordered that he do so by his Honour.”3 • The defendant further submitted “that the actual pleadings themselves are quite clear that the defendant is pleading a set-off pursuant to the counter claim … (and) .. the defence as it is is sufficient enough to meet the requirements of the UCPR.”4 • The defendant did not oppose the plaintiff’s application for summary judgment in respect of “the shortfall.”5 • That the issue raised in the defendant’s defence and counter claim “should be decided at trial.”6 • The proceeding is now at the stage where it can proceed expeditiously although some “further and better particulars” of the defendant’s defence and counter claim may be required. 3 H.T of 13 July 2010 page 8 line 55. 4 Ibid at page 10 lines 10-15. 5 Ibid at page 10 lines 20-30; see also page 11 line 50. 6 Ibid at page 11 line 5. -- 4 of 6 -- 5 Findings and Conclusion: [8] On a consideration of the material filed and the submissions made I make the following findings in this application: (a) The plaintiff is entitled to judgment for the sum of $23,298.98 (to which the defendant “has no issue”) such sum being the difference between the plaintiff’s claim and the defendant’s counter-claim together with interest on such sum at the appropriate rate. (b) With respect to the remainder of the plaintiff’s claim I am not satisfied on the material filed and the submissions made that the plaintiff is entitled to summary judgment for the balance amount claimed as I find that the defendant has discharged its “evidentiary onus” to have the issues it raises fully explored and tested at trial and to that extent I find that the plaintiff has not discharged its burden of satisfying the court of the matters referred to in UCPR 292(2)(a) and (b).7 (c) I find further that the plaintiff is however entitled to its costs of the application including reserved costs for the following reasons: (i) The plaintiff has been partially successful in its application by obtaining summary judgment for the “shortfall” sum; and (ii) In the initial hearing before McGill SC DCJ the application was adjourned and costs were reserved primarily on the basis that it was submitted at that time by the defendant that it intended to amend its defence and that that issue should be resolved before any further argument ensued on the -- 5 of 6 -- 6 substantive issues raised in the application. It was also raised at that time that the counter-claim “makes a restitutionary claim” and that it may be appropriate that the defendant’s counter-claim be “properly articulated in the pleading” and the substantive issues subsequently argued.8 At the adjourned hearing the defendant’s position had changed to the extent that it does not intend to amend its pleadings as on review it considered that they “are quite clear”. This change of view was not communicated to the plaintiff and the adjourned hearing proceeded. In the circumstances I am satisfied, in the exercise of my discretion, that the plaintiff is entitled to its costs including reserved costs of and incidental to the application to be agreed or assessed on the standard basis. Orders: [9] My orders are as follows: (i) Judgment for the plaintiff for the sum of $23,298.98 plus interest at the current Supreme Court rate pursuant to section 47 of the Supreme Court Act 1995 as amended from the date of claim to the date hereof; (ii) the balance of the claim be determined according to law; (iii) the defendant pay the plaintiff’s costs of and incidental to the application including reserved costs to be agreed or assessed on the standard basis. 7 See Deputy Commissioner of Taxation v Salcedo (2005) QCA 227 at paragraphs [11 to 17] inclusive; also Queensland Pork Pty Ltd v Lott (2003) QCA 271 at para 41 (Jones J). 8 H.T before McGill SC DCJ page 12 lines 15 to 25. -- 6 of 6 --