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Rogers v Law Coast Mortgages Pty Ltd

 

[2003] QSC 162

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

McMURDO J

No 4714 of 1999

GREGORY ERIC ROGERS

Plaintiff

and

 

LAW COAST MORTGAGES PTY LTD (ACN 065 050 473)

First Defendant

and

 

KIM CHRISTIE

Second Defendant

and

 

ALAN CHARLES PARRY

Third Defendant

and

 

IAN CHARLES GRIFFITHS

Fourth Defendant

and

 

CHRISTINE MATSINGER

Fifth Defendant

and

 

MALCOLM DONALD McCOLM

Sixth Defendant

BRISBANE

DATE 17/04/2003

JUDGMENT

HIS HONOUR: This is an application by the defendants to strike out the plaintiff's further amended statement of claim filed on 29 April 2002. Its predecessor was the amended statement of claim filed on 5 March 2002. This was struck out by Mr Justice Helman by an order of 18 March 2002.

That order refers to the amended statement of claim of 15 March but plainly there is the pleading dated 5 March which was struck out. Leave was given by his Honour to file any further amended statement of claim on or before 13 May 2002. The plaintiff's response was this further amended statement of claim.

At the same time the plaintiff appealed the order of Mr Justice Helman. That appeal was dismissed on 4 March 2003. The previous statement of claim was struck out because it was prolix and it confused claims that might be made on behalf of the company Perdon Pty Limited with claims which could be properly pleaded by the plaintiff.

It therefore had the tendency to prejudice and delay the fair trial of the proceedings so that it should be struck out. The current statement of claim, the subject of this application, suffers from the same defects. Throughout the pleading there is still the confusion between the company's position and any causes of action which might belong to Mr Rogers.

There are some parts of this pleading which taken alone might raise claims properly brought by this plaintiff rather than the company. The plaintiff is the guarantor of loans made by the first defendant to the company and it is conceivable that he has suffered some loss from some of the matters complained of in consequence of the company's default, but such a case is not pleaded as required by the rules and, moreover, to the extent that it is suggested by this pleading it is difficult to distinguish the allegations relevant to it from most of what is pleaded which is irrelevant to any claim by him.

The plaintiff did not appear on the return of this application on 15 April but when then contacted by the defendants' solicitors he sent a fax to the registry saying that he believed that the hearing was listed for 14 April and that he wished to have the matter adjourned. But in the same letter he advised that “a new statement of claim would be filed” and that “I consent to costs thrown away today on a normal costs basis.”

He enclosed copies of correspondence he says that he had sent to the respondents last week. That correspondence promised a new statement of claim would be filed last Friday, 11 April, and advised that the plaintiff would attend on 14 April for the hearing of this application. No statement of claim was filed by them nor has it been filed since.

Mr Rogers did not appear when I called over the matters in the applications list on 14 April. This further amended statement of claim filed 29 April 2002 should be struck out. The respondents have suggested that leave to file a further statement of claim should be given only on terms that the plaintiff serve a draft on or before 30 June 2003 for which the defendants would have 21 days to consider whether they consent to a pleading being delivered in those terms and that, in the absence of such consent, the plaintiff could deliver a further statement of claim only with leave of the Court.

Given the history of this case that seems an entirely appropriate course. I shall make an order in terms of the draft provided by the defendants but I shall delete paragraphs two, three and four from that draft. The draft as amended provides that the plaintiff would pay the defendants' costs of and incidental to this application to be assessed on an indemnity basis.

In the circumstances of this case and especially having regard to the outcome of the plaintiff's appeal, the plaintiff should have immediately agreed that this further amended statement of claim be struck out and that it is unfair that the defendants be put to any expense for having to make this application.

HIS HONOUR: I will also delete paragraph 5 of the draft handed to me by Mr Conrick and with those amendments there will be an order in terms of the draft order which I will initial and place with the papers.

HIS HONOUR: I will mark that B with today's date against it, that is the letter of 7 March 2003 from the applicant's solicitors to Mr Rogers and that will be placed with the papers.

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Editorial Notes

  • Published Case Name:

    Gregory Eric Rogers v Law Coast Mortgages Pty Ltd

  • Shortened Case Name:

    Rogers v Law Coast Mortgages Pty Ltd

  • MNC:

    [2003] QSC 162

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    17 Apr 2003

Litigation History

No Litigation History

Appeal Status

No Status