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  • Unreported Judgment

Sparks v Davis

 

[2003] QSC 17

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MACKENZIE J

No S8677 of 2001

GRANT DENE SPARKS

Plaintiff

and

 

LUKE HAMILTON DAVIS

First Defendant

and

 

CAMERON NEIL DAVIS

Second Defendant

and

 

LYNETTE CATHERINE DAVIS

Third Defendant

BRISBANE

DATE 13/01/2003

JUDGMENT

HIS HONOUR: This is an application for further and better particulars in the form of a list of named creditors of the Noosa Film Festival Limited (in liquidation) together with respective amounts alleged to be due to them, in respect of which the liquidator alleges the debts were incurred during the period January to December 1999 and in respect of which the liquidator alleges remain unpaid, and for an order that following compliance with that order the plaintiff formally amend the claim and statement of claim.

There was also a claim in the application for an order that the liquidator call for and adjudicate proofs of debt, which was not pursued.

A preliminary point was taken by Mr Daubney that the application for further and better particulars has been taken without compliance with UCPR 444. The applicant concedes that the paragraphs in rule 444(1)(e) and (f) had not been complied with but submitted that the respondents would have been well aware from correspondence of the areas of concern between the parties and that I should exercise the discretion under UCPR 448 to hear the matter notwithstanding non-compliance with rule 444.

The respondents submitted that an order referring the matter to mediation should be made. The case is of a kind which seems to me to be well suited to mediation but I am not satisfied that the case is currently in an appropriate form to make an order at this point, notwithstanding the fact that the matter is now advancing in age.

The applicants say, and it seems to me with some justification, that they are entitled to have the claim fully defined before mediation occurs. The claim and statement of claim was filed on the 25th of September 2001.

Notice of intention to defend and the defence was filed on or about the 20th of December 2001. On the 6th of March 2002 a draft amended defence, later filed on 3 June 2002 was delivered to the respondents' solicitors and a reply was filed on the 26th of July 2002.

There was a schedule to the statement of claim based on an analysis of the accounts, in the form of the general ledger, of the company in liquidation and the company Cameron Davis Proprietary Limited, with some amendments.

Another schedule sets out four columns, one of which is the respondents' view of the defendants' liability; another is the amount set out in the proof of debt relating to that debt in cases where a proof of debt has been lodged, and the other two are based on statements made during the liquidation by each of the defendants.

In respect of some debts itemised by the respondents in the first column no proofs of debt have been lodged. In other cases the respondents' claim and the proof of debt show different amounts.

The applicants point out that no adjudication has yet been made on the acceptance of the debt.

It is clear enough that it is desirable that the respondents conceptualise and particularise with precision what debts are comprised in the claim, otherwise the matter will not progress. The quantum of the claim should also be clearly articulated.

It has been conceded that the last item in the latest schedule which is probably in its current form incapable of particularisation presents a difficulty for the respondents.

It seems to me that if the purpose of the exercise is to have the matter disposed of as soon as possible, the sooner the conceptualisation and particularisation is done the better.

Having said that, I am satisfied that UCPR 444 has not been complied with. A letter of the 6th of November 2002 which is the first in the sequence of relevant correspondence in this regard does not specify a time for the respondents' reply nor that the letter was written under chapter 11 part 8.

It is a prerequisite to making an application for further and better particulars that rule 444 be complied with unless a direction is given under UCPR 448 that the application be heard notwithstanding non-compliance.

The next letter in the sequence was written on the 13th of November 2002. It simply said that the applicants did not wish to have to apply to the Court for an order for further and better particulars but would be forced to do so unless the particulars were provided.

Once again no time was set for reply and there was no reference to rule 444. On the 29th of November 2002 another letter was written which does not refer to rule 444 nor to a set time for reply either.

It merely refers to the fact that the application is in the process of preparation and refers to UCPR 161 which is the general provision relating to a right to apply for further and better particulars.

It is, as far as I am concerned, curious that none of the correspondence refers to UCPR 444. It is almost as though it has been studiously avoided, in the absence of any explanation. Indeed no explanation has been given why rule 444 was not complied with nor why the reference to the general power was included in the last letter.

There is a further curiosity, that is, that the application was filed on the 2nd of December 2002, made returnable on the 10th of December 2002. I have been told that there was no appearance by the respondents on that day because the respondents had not been served and the matter was adjourned.

The views I hold of the matter generally have already been articulated but given the course that the matter has taken I can see no reason demonstrated why I should give leave under rule 448.

The unexplained absence of any reference to rule 444 and the absence of any attempt to comply with it in my view make it difficult to see that it is a case where the discretion should be exercised and the application will therefore be refused with costs.

MR DAUBNEY: Thank you, your Honour. When your Honour is revising the reasons for judgment perhaps your Honour would note the amended defence-----

HIS HONOUR: Has been filed.

MR DAUBNEY: -----has been filed.

HIS HONOUR: It has.

MR DAUBNEY: The filing date is 3rd of June 2002.

HIS HONOUR: 3rd of June. All right. Yes, I just didn't pick that up in the haste of-----

MR DAUBNEY: Yes. No. Thank you, your Honour.

HIS HONOUR: 3rd of June. Okay. I'll amend that accordingly in due course. Thank you.

Close

Editorial Notes

  • Published Case Name:

    Grant Dene Sparks v Luke Hamilton Davis

  • Shortened Case Name:

    Sparks v Davis

  • MNC:

    [2003] QSC 17

  • Court:

    QSC

  • Judge(s):

    Mackenzie J

  • Date:

    13 Jan 2003

Litigation History

No Litigation History

Appeal Status

No Status