Geileskey v Johnson
[2001] QDC 303
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- Unreported Judgment
- Geileskey v Johnson[2001] QDC 303
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Geileskey v Johnson[2001] QDC 303
Geileskey v Johnson[2001] QDC 303
DISTRICT COURT OF QUEENSLAND
CITATION: | Geileskey v Johnson [2001] QDC 303 |
PARTIES: | GORDON CHARLES GEILESKEY Appellant And TERRY VINCENT JOHNSON and ANN MAREE JOHNSON Respondent |
FILE NO/S: | 4 of 2001 |
DIVISION: | Civil |
PROCEEDING: | Section 222 Magistrates Court Appeal |
ORIGINATING COURT: | District Court of Queensland, Toowoomba |
DELIVERED ON: | 26 October 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 October 2001 |
JUDGE: | Judge O'Sullivan |
ORDER: |
|
CATCHWORDS: | Appeal – agreement to settle – Uniform Civil Procedure Rules – Rules 5(a), 352, 353, 365(a), 658 – summary judgment. Uniform Civil Procedure Rules 5(a), 352, 353, 365(a), 658. Mideco Manufacturing Pty Ltd v. Tait (1989) VR 50; Heather v. Vita Pacific Ltd (1996) 6 Tas 120; Suncorp Insurance & Finance v. Blakeney (1993) 18 MVR 361); Rigato Farms Pty Ltd v. Ridolfi [2000] QCA 292; Gillies v. Dibbetts [2001] 1 Qd.R. 596, Thomas v. National Australia Bank [1999] QCA 525; Leighton Contractors Pty Ltd v. Western Metals Resources Ltd [2001] 1 Qd.R. 261; Dalmation Nominees Pty Ltd v Marinovich (20 November 1998 – Supreme Court of Western Australia) |
COUNSEL: | |
SOLICITORS: | Lynch & Company for the Appellant Murdochs for the Respondent |
- [1]This is an appeal against the decision of the learned Magistrate, Mr Yorkston on 27 April 2001 in which he gave judgment for the plaintiff.
- [2]There are a number of grounds of appeal, and I propose to deal with them in the order they appear in the Notice of Appeal.
Ground 1
Jurisdiction:
Rule 365(a) Uniform Civil Procedure Rules.
I find that the learned Magistrate erred in law in finding that he had jurisdiction to give summary judgment in favour of the respondent under this Rule. The non-compliance with Rule 353(3) meant that the agreement was not on Offer to Settle, and judgment could not be granted in accordance with Rule 365(a). Some indirect assistance may be gained on the form of offers to settle from Suncorp Insurance & Finance v. Blakeney (1993) 18 MVR 361.
- [3]The learned Magistrate said in his Judgment:
“When one takes into account UCPR 5 and in light of the history of this action, I reject the defendant's submissions that, because the agreement to settle does not contain a recitation that the offer is an offer to settle made under Pt5 of the UCPR then I lack jurisdiction to grant Judgment under UCPR 365(a).”
Ground 2:
Rule 365(a) and Rule 5 - Uniform Civil Procedure Rules
- [4]I find that if the learned Magistrate took Rule 5 into account in applying Rule 365(a), and in particular to remedy deficiencies in compliance with Rule 353(3), he was in error.
Ground 3:
Rule 365(a):
- [5]I find that the learned Magistrate was entitled to have regard to Rule 5, but not by means of allowing it to remedy deficiencies in compliance with Rules 352 and 353.
Ground 4:
Was the agreement to settle an Offer to Settle?
- [6]Rules 352 and 353 of the Uniform Civil Procedure Rules require strict compliance. In order for the agreement/compromise to be recognized as an Offer to Settle, it must comply strictly with the provisions of those Rules, including the requirement that the offer must recite that it is an Offer to Settle made under Part 5 of the Rules. It was not open to the learned Magistrate to use Rule 5 to over-ride deficiencies in compliance with the Rules for Offers to Settle.
- [7]My research has been unable to locate specific decisions of the Court of Appeal of Queensland on this point. Authorities from other States on similar points are conflicting. The solicitor for the appellant referred me to Mideco Manufacturing Pty Ltd v. Tait [1989] VR 50 where non-compliance with Order 26 of the Supreme Court Rules (Vic) rendered the Offer to Settle invalid. However, in Heather v. Vita Pacific Ltd (1996) 6 Tas 120, non-compliance with Rules did not render an offer to settle void, as long as it substantially complied and was subsequently amended to comply with the Rules. In both cases, there was a provision requiring a statement that the offer was made under the relevant Rules and a provision similar to Rule 5.
- [8]I have been unable to locate specific Court of Appeal (Q) authority on the effect of Rule 5 on Rule 353(3). In Rigato Farms Pty Ltd v. Ridolfi [2000] QCA 292 there is some guidance as to the likely attitude of the Court of Appeal to Rule 5. It concerned the setting aside of deemed admissions under Rule 189, and in that context de Jersey C.J. said:—
“The charter of procedure contained in the Uniform Civil Procedure Rules cannot be approached on the basis that if important provisions are ignored, even if inadvertently (and that is not established here), the court may be expected to act indulgently and rectify the omission. Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just. Allowing the appellant to withdraw these deemed admissions would substantially erode the benefit and worth of a very important procedural mechanism directed, through expediting cases and reducing costs, to promoting the interests of justice.” (para 21)
The sentiments expressed in this passage have been applied in several other cases, including Gillies v. Dibbetts [2001] 1 Qd.R. 596, Thomas v. National Australia Bank [1999] QCA 525 and Leighton Contractors Pty Ltd v. Western Metals Resources Ltd [2001] 1 Qd.R. 261.
Conclusion:
I am of the view that Rule 5 cannot be used to overcome deficiencies in the agreement to settle.
Ground 5:
Summary judgment:
- [9]I consider the learned Magistrate was in error in finding that the respondent was entitled to summary judgment by reason of non-compliance with the Order of 13 December 2000.
Ground 6:
Breach of obligations:
- [10]I find that the learned Magistrate was not entitled to reject the defendant's submissions that the plaintiffs breached their obligations.
Ground 7:
Entitlement to Summary Judgment:
- [11]I find that the learned Magistrate erred in finding that the respondent was entitled to summary judgment pursuant to paragraph 6 of the agreement to settle.
Ground 8:
Triable issues:
- [12]The learned Magistrate erred in granting summary judgment. There were a number of triable issues raised in the material before the Court:
- [13]The terms of the agreement between the parties, including implied terms:
- Was the agreement reflected in exhibit “A” only, or exhibits “A” and “B”? What was the legal effect of the paragraph in exhibit “B”, commencing “we note that:—”?
- Was it a term of the agreement that the respondents had to procure the removal of a caveat over the land and to inform the appellant's solicitors of this fact prior to the appellant being obliged to complete the terms of the agreement? (Refer Affidavit of appellant sworn 10 April 2001 para 4 (c)).
- Was it a term of the agreement that the respondents produce a Notice of Withdrawal of Caveat as a pre-condition to the appellant's obligation to execute a Bill of Mortgage over the land? (Refer Affidavit of appellant sworn 10 April 2001 para 4(d)).
- What meaning ought to be given to paragraph 4 of exhibit “A” to the affidavit of the appellant sworn 10 April 2001? Alternative constructions are open.
- Was it a term of the agreement that the respondents produce a Notice of Withdrawal of Caveat as a pre-condition to the appellant's obligation to execute a Bill of Mortgage over the land? (Refer Affidavit of appellant sworn 10 April 2001 para 4(d)).
- Was it a term of the agreement that the respondents had to procure the removal of a caveat over the land and to inform the appellant's solicitors of this fact prior to the appellant being obliged to complete the terms of the agreement? (Refer Affidavit of appellant sworn 10 April 2001 para 4 (c)).
- [14]Breaches of the terms of the agreement:
- Did either or both the parties to the agreement breach the agreement?
- Were the respondents in breach of the agreement in not informing the appellant of the removal of the caveat and/or producing a Notice of Withdrawal of Caveat and/or not responding to requests for same? (Refer Affidavit of appellant sworn 10 April 2001 paras 6-10).
- Was it an implied term of the agreement that title to the land be available to the appellant to sell or re-finance? Did the placement of a caveat over the land by the respondents prevent the appellant from re-financing or selling the land so as to pay the compromise sum? (Refer Affidavit of appellant sworn 10 April 2001: paras 19-20).
- Pursuant to the agreement, was it incumbent on the appellant to check if the first caveat had been withdrawn and if not to procure a withdrawal?
- What were the parties' responsibilities concerning the removal of the first caveat?
- What was the legal effect, if any, of the payment of interest by the appellant before receiving any evidence of withdrawal of the caveat?
- What was the legal effect, if any, of the appellant's refusal to make principal and interest payments?
- What was the legal effect, if any, of the failure of the appellant to allege the respondents were in breach and/or declaring the agreement was at an end?
- What was the legal effect, if any, of the appellant making no attempts to sell the land?
- [15]Whether the agreement had been repudiated:
- Was the agreement repudiated by the respondents by the lodgment of a caveat?
- What was the legal effect, if any, of the appellant's failure to object to the respondents' caveat?
- [16]Affirmation of the agreement following breach:
- If either or both the parties were in breach of the agreement, was the agreement affirmed by the appellant? (Refer affidavit of appellant sworn 10 April 2001, para 17).
- If there was an affirmation, what were the obligations of the parties at that date?
- What was the legal effect, if any, of the respondents' caveat, or of the appellant's purported affirmation?
- [17]Whether the agreement remained on foot at the time of the application for summary judgment:
What was the legal effect, if any, of paragraph 5 of the letter of 27 December 2000, (Exhibit GCG2 to the affidavit of the appellant sworn 10 April 2001)?
- [18]The solicitor for the appellant referred me to Dalmation Nominees Pty Ltd v Marinovich (Unreported decision of Murray J - 20 November 1998 - Supreme Court of Western Australia) and the reluctance courts should show to granting summary enforcement of a compromise:—
“So clearly, if, for example, some real question of fact arose which required investigation or some question of law arose, such as whether an aspect of the agreement for compromise would or would not be the subject of an order for its specific performance, the court would in all probability decline to make an offer to enforce such aspects of the compromise agreement summarily in the action itself without affording the capacity to try the issues involved”. (BC 9806257 @ 13).
“It is right, I think, to regard an application to summarily enforce an agreement to compromise an action as being one akin to an application for summary judgment expressly so made. If the court takes the same approach to both applications, in my opinion, the same position will be reached.” (BC 9806257 @ 15).
Ground 9:
Matters relevant to summary judgment:
- [19]The learned magistrate erred in granting summary judgment, in failing to take into account that there were questions of fact and law for determination of the Court at trial.
- [20]I agree with the solicitor for the appellant that there was uncontested affidavit evidence before the learned Magistrate which should have been accepted by him for the purpose of the exercise of his discretion to grant or refuse summary judgment. The findings of the learned Magistrate which follow his acceptance of the plaintiff's submissions, set out at the bottom of page 1 of the Judgment, are difficult to justify in this light. In any event, these are matters of fact which are triable issues and thus more appropriately dealt with at trial.
Rule 658 Uniform Civil Procedure Rules:
- [21]The respondent raised Rule 658 in written Submissions. It was submitted that the Rule does not apply here because there is no proceeding as the matter had settled.
- [22]I agree with the solicitor for the respondents that a proceeding remained on foot, and the Rule applied.
- [23]I consider that Rule 658 cannot be used to remedy any deficiencies in compliance with the strict requirements of the Offer to Settle Rules.
- [24]I allow the Appeal.
I set aside the decision of Yorkston S.M.
I order the respondents to pay the appellant's costs of the application for summary judgment in the primary proceedings in the sum of $345.00.
I order the respondents to pay the appellant's costs of this appeal be assessed on a standard basis.