Fleming v CEC Eyears Developments Pty Ltd
[2003] QDC 327
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- Unreported Judgment
- Fleming v CEC Eyears Developments Pty Ltd[2003] QDC 327
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Fleming v CEC Eyears Developments Pty Ltd[2003] QDC 327
Fleming v CEC Eyears Developments Pty Ltd[2003] QDC 327
DISTRICT COURT | No 90 of 2002 |
CIVIL JURISDICTION
BOULTON DCJ
IAN G FLEMING | Plaintiff |
and
CEC EYEARS DEVELOPMENTS PTY LTD ACN 055 626 527 | First Defendant |
and
CECIL J EYEARS | Second Defendant |
and
PETER ERNEST PERRY | Third Defendant |
and
CLUB MARINE LTD ACN 007 588 347 | Fourth Defendant |
and
W LINKLATER FORMERLY DBA AUSWIDE MARINE BN 4639 560 | Fifth Defendant |
and
JEFF COCKBURN, DBA COCKBURNS MARINE SERVICES BN 337 6886 | Sixth Defendant |
and
JOHN D WEBSTER ABN 550 709 24417 | Seventh Defendant/Applicant |
BUNDABERG
DATE 21/08/2003
JUDGMENT
DATE 21/08/2003
HIS HONOUR: This is an application by the seventh defendant for summary judgment against the plaintiff pursuant to rule 293 of the Uniform Civil Procedure Rules. The test to be applied on applications for summary judgment pursuant to rules 292 and 293 has been settled in several decisions of the Supreme Court and the Queensland Court of Appeal in mid-2000.
The applicant's counsel, Mr Alldridge, refers in particular to Bernstrom v. National Australia Bank Limited (2002) QCA 231, (2003) 1 Qd.R., 469. In that case the leading judgment was written by Jones J. He referred to the equivalent rule in the United Kingdom which is couched in near identical terms with rule 293(2) of the Uniform Civil Procedure Rules 1999 before proceeding to refer with approval to what was said by Lord Woolf in Swain v. Hillman (2001) 1 All E.R, 91. In Swain, Lord Woolf said, concerning the relevant rules:
“...The Court now has a very salutary power, both to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the Court to dispose summarily of both claims or defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification; they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or they direct the Court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”
Of the rationale for those rules, his Lordship said:
“It is important that a Judge in appropriate cases should make use of the powers contained in part 24. In doing so he or she gives the effect of the overriding objectives contained in part 1. It saves expense; it achieves expedition; it avoids the Court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interest of justice if a claimant has a case which is bound to fail, then it is in the claimant's interest to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed a claimant should know that as soon as possible.”
The plaintiff filed a claim and statement of claim on the 5th of September 2002. The claim arises out of a purchase of a boat in May 2000 following some representations said to have been made by or on behalf of the first, second and third defendants. The fourth defendant was the insurer of the boat at the time of sale.
On the 5th of August 2000, the plaintiff renewed the policy of insurance with the fourth defendant which had expired. It is alleged that the fifth and sixth defendants were both agents of the fourth defendant who were engaged in the business of conducting marine vessel survey reports for the fourth defendant.
In respect of the seventh defendant, it is alleged:
“(7) At all times material to this action the seventh defendant John Webster was:
- (a)engaged in the business of conducting marine vessel assessment reports for the fourth defendant;
- (b)was a duly authorised servant or agent of the fourth defendant...
- (28)On 23/10/00 the seventh defendant, acting in capacity as agent for the fourth defendant contacted the plaintiff and has, to date, conducted a number of inspections of the vessel during the period from November 2000 until June 2002.
- (29)These inspections related to a claim by the plaintiff lodged with the fourth defendant for latent hull defects and one claim for severe hull damages following collision with rocks by the vessel...
- (43)The seventh defendant's conduct as referred to in paragraphs 28 and 29 hereof was:
- (a)in trade or commerce within the meaning of a section 52 and section 53 of the Trade Practices Act 1974 (CTH);
- (b)in connection with the promotion by any means of the use of goods and did falsely represent a particular standard, quality, value or grade of said goods by virtue of section 53 of the said Act;
- (c)misleading and/or false by virtue of section 52 and/or section 53 of the said Act;
- (d)in contravention of section 52 and/or section 53 of the said Act;
- (44)That the seventh defendant knew, came to know, or should reasonably have been expected to know of the vessel defects and/or limitations for use as referred to in paragraph 17 hereof.
- (45)By reason of the defendant's misleading and/or false representations or conduct in contravention of section 52 and/or section 53 (a) of the said Act the plaintiff has suffered loss or damage.”
The seventh defendant filed a notice of intention to defend and defence on the 21st of October 2002. Paragraph 4 of the defence alleges:
- (4)In relation to the allegations contained in paragraphs 43, 44 and 45 of the statement of claim the seventh defendant says:
- (a)J D and M K Webster Pty Ltd was never retained by the plaintiff or the fourth defendant to carry out a general seaworthiness/work usage suitability survey of the vessel;
- (b)the claim assessing services carried out by J D and M K Webster Pty Ltd were carried out as agent for the fourth defendant insurer and were for the sole purpose of dealing with and settling the specific damage claims as set out in paragraph 3 hereof made by the plaintiff under his club marine police of insurance with respect to fishing vessel “Stray Cat”;
- (c)neither the seventh defendant or J D and M K Webster Pty Ltd carried out a general survey as to the seaworthiness or suitability of the vessel for fishing as they were not:
- (i)required, authorised or requested to do so and;
- (3)were under no general duty to do so.”
On the 26th of November 2002, the seventh defendant's solicitor wrote to the plaintiff requesting that he discontinue the claim or they would apply to have it struck out. That application was filed on the 2nd of April 2003. The affidavit of Brett John Heath filed by leave deposes to the above. The further affidavit of Brett John Heath filed by leave exhibits several items of correspondence notifying the plaintiff of the hearing dates of the application which were extended to the 12th of August 2003.
The affidavit of John Douglas Webster filed the 8th of May 2003 deposes to the precise and limited nature of the three reports prepared by the seventh defendant at the request of the fourth defendant. In respect of each, there was no request to report on the overall suitability of the vessel as a fishing vessel for smooth water or any other type of marine activity.
The plaintiff filed no affidavit material in response to the above. He appeared in person on the hearing of the application but it became obvious that in so far as the seventh defendant is concerned he has no cause of action. At no stage was the seventh defendant engaged by the fourth defendant to report on the issues where he now claims to suffer loss. The application therefore is allowed with costs.
On the 5th of August 2003, the plaintiff filed an application for alternative dispute resolution addressed to all seven defendants. The affidavit of the plaintiff filed in support of the application, however, refers to the return date of the seventh defendant's application and seeks on the return date an order for ADR and stay of proceedings. No other defendants appeared.
Having regard to the position taken by the seventh defendants solicitors, the application was an exercise in futility. The plaintiff's resistance to the rule 293 application and the making of the ADR application were made in the face of repeated warnings and were completely without merit.
I have been provided with a draft order. That draft order provides for costs to be assessed on an indemnity basis which I think appropriate in the present circumstances and I make an order as per draft.
The application for ADR concerning the 1st to 6th defendants is adjourned.
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