Adam v Boeve & Everett [2008] QDC 15

1 [2008] QDC 15 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 1343 of 2004 JENNIFER ADAM Plaintiff and RONALD DEREK BOEVE and MIRIAM GRACE EVERETT Defendants BRISBANE ..DATE 29/01/2008 ORDER CATCHWORDS: UCPR r214(2) - orders for particulars and disclosure on plaintiff's application in a proceeding characterised by long delays - costs dependent on plaintiff's ultimately succeeding. -- 1 of 5 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application by the plaintiff which may get this embarrassingly protracted matter back on the rails. It arises out of a contract said in the claim filed on 14 April 2004 to be dated the 19th of February 2000. The notice of intention to defend and the defence (inappropriately titled as relating to a minor debt claim) was filed on 21 June 2004. It makes allegations against a person identified as Gary Shaw, "a real estate agent of the plaintiff." At the time of an auction of property on the 19th of February 2000 the story told in the defence is that Shaw encouraged the defendants to think it was open to them to bid at the auction without being committed to sign an unconditional contract of purchase, they wishing to "negotiate a conditional contract that was subject to finance if the property was passed in at auction." Shaw is said to have bid $395,000 "on behalf of the defendants" then pressuring them to sign an unconditional contract and to hand over a cheque for 10 percent deposit. The defence contends that Shaw was told funds were not available to meet the cheque ultimately handed over and gave some sort of assurance that it wouldn't be presented. Particulars were sought by the plaintiff's former solicitors in a request dated 19 July 2004. Having perused that, I am having some difficulty in appreciating the need for all of those particulars, given that I understand from Mr Lambros that the plaintiff had someone other than Shaw as agent identified in the contract and contends that Shaw had no -- 2 of 5 -- 3 ORDER 1 10 20 30 40 50 60 standing whatever to bind her. The request for particulars does not seem to have met any challenge over the years as to its appropriateness, nor has any challenge to its appropriateness been mounted today by the defendant's representative, Miss Rabolio. She is in some difficulty because she is unable to get instructions from the defendants, one of them at least being overseas. She has told the Court that steps are in train to permit her firm to withdraw as their solicitors. The application and supporting material got to the firm on 23 January, but was sent Express Post to the elusive clients last Friday, according to Miss Rabolio. On that basis delivery of that material to the defendants could not be expected until today, yesterday being a public holiday. In the circumstances, I would not be inclined to fix the short period proposed by Mr Lambros for provision of particulars of seven days. I propose to allow 21. That may prove insufficient, as Miss Rabolio suggests, if matters so develop that the defendants bring new solicitors into the matter. It is possible to make contact with people overseas and I suppose we have to assume that the defendants will be able to bring to mind the events of the 19th of February 2000 and thereabouts. Miss Rabolio alluded to other aspects of the case such as the plaintiff having resold the property for a greater price than $395,000 so that she has suffered no loss from some points of -- 3 of 5 -- 4 ORDER 1 10 20 30 40 50 60 view. As I understand the law, that is by the by, given the nature of a deposit as "an earnest to bind bargain." The advantageous resale would be beside the point. Miss Rabolio has noted that the defendants are still awaiting the plaintiff's reply, which was strictly out of time. An unanswered request for particulars is not a sufficient reason for a plaintiff's failure to reply and it would seem to me, without spending a lot of time on this issue, that sufficient information was provided so that the plaintiff could have sensibly responded to the "defence" or counterclaim, and that too is all by the by. The other aspect of the application seeks disclosure within seven days. Disclosure before the close of pleadings is available only if the Court makes a special order under rule 214(2)(a). I am not persuaded that the need for particulars is sufficiently vital to make such a special order. I am prepared to order disclosure in terms of the ordinary time allowed by the rules, which is 28 days after the close of proceedings, by subrule (2)(c). The Court's order will be in terms of the initialled draft. I will read it into these reasons. 1. That the defendants deliver to the plaintiff a list of documents in accordance with rule 214 of the Uniform Civil Procedure Rules within 28 days of the close of -- 4 of 5 -- 5 ORDER 1 10 20 30 40 50 60 pleadings. 2. That the defendants deliver to the plaintiff further and better particulars of the defendant's defence in accordance with rule 157 of the Uniform Civil Procedure Rules as requested by McCarthy Holzberger Solicitors on 19 July 2004 within 21 days from today. 3. That the plaintiff file and serve her reply and answer, if any, within 14 days of provision of particulars. 4. That the plaintiff's costs of and incidental to this application be her costs in the cause. 5. Liberty to apply. I have added "liberty to apply" because things will probably go wrong, Mr Lambros; the effect of the costs order is that if you win your case you get your costs. MR LAMBROS: Understood, your Honour. HIS HONOUR: If it should turn out that Mr Shaw is the plaintiff's agent, it may be that the defendants suffered some sort of wrong. ----- -- 5 of 5 --