Jeffery v Eejay Hospitality Pty. Ltd.
[2006] QDC 124
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- Unreported Judgment
- Jeffery v Eejay Hospitality Pty. Ltd.[2006] QDC 124
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Jeffery v Eejay Hospitality Pty. Ltd.[2006] QDC 124
Jeffery v Eejay Hospitality Pty. Ltd.[2006] QDC 124
[2006] QDC 124
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2989 of 2005
NORMAN JOHN JEFFERY AND MURIEL ANN JEFFERY | Applicants/Plaintiffs |
and |
|
EEJAY HOSPITALITY PTY LTD | First Respondent/Defendant |
and |
|
EYVONNE JEAN TOOTELL | Second Respondent/Defendant |
and |
|
JOHN KEITH TOOTELL | Third Respondent/Defendant |
BRISBANE
DATE 26/04/2006
ORDER
CATCHWORDS | Uniform Civil Procedure Rules r 5, r 171, r 292, r 293, r 990 - application in terms sought "summary judgment" but relied on r 171 for striking out of both defence and counterclaim - no sufficiently strong r 171 case shown - held it was appropriate to consider the application under rules 292 and 293 - terms on which defendants' solicitors should be allowed to withdraw |
HIS HONOUR: The Court makes an order in terms of the initialled draft which Mr Comino, the plaintiff's solicitor, has handed up. It has been amended by me to add reference to the counter-claim and now provides:
"The judgment of the Court is that the first defendant; second defendant and third defendant pay to the plaintiffs the amount of $73,844.72, including $19,687.52 interest to this day and $1,038.50 for costs and that the counter-claim be dismissed."
The "basis of the judgment" is said in the draft to be "application for summary judgment filed on the 4th of April 2006". If one looks at the application, one finds that it seeks striking out of the defence and of the counter-claim which conveys that the application is under Rule 171. That rule does not provide for judgments to be entered, leaving that aspect to some further inquiry as to what happens in the absence of a pleading.
The striking out of a statement of claim or a defence does not necessarily lead to a judgment if there remains intact a claim or a notice of intention to defend. My impression is that the application is better treated as one under Rule 292 seeking judgment on the plaintiff's claim and one under Rule 293 seeking judgment on the defendant's counter-claim which, in essence, seems to be based on the plaintiff's failure to accept as assignee of the lease of a motel people located by the defendants, who obviously were having difficulty making a go of motel premises in Warwick which they were renting as the tenth or thereabouts in a line of lessees holding under an underlying basic lease.
The first defendant is the corporate lessee. The other defendants, Mr and Mrs Tootell are directors and guarantors. It is a difficult task to succeed in applications under Rule 171, since what must be shown is that a pleading is hopeless or perhaps attackable on some other basis as being vexatious or an abuse of process.
It seems to me that Mr Comino does not demonstrate a sufficiently strong case of that kind. Indeed, the way he has approached the matter in his detailed outline of submissions is to attack the defendant's contentions in detail, resisting assertions that interest on interest is being claimed, that failure to agree to assignment was unauthorised.
In that regard he points to the unexceptional provision in the lease regarding assignment which entitled the plaintiffs to insist that the assignor be up to date in the performance of obligations. On the evidence, that was not the case here especially as the plaintiffs were able to exercise the right they have to allocate receipts from the defendants as they saw fit, given that the defendants had made no allocation.
Mr Comino has got himself involved in other factual matters such as discrepancies in what is said to be the putative assignee's purchase price and whether they had experience in operating businesses of the kind in question. He has sought to prove by evidence that factual assertions made by the defendants are wrong.
All of those considerations, it seems to me, take the case out of the sphere of Rule 171. However, there is a strong philosophy in the Uniform Civil Procedure Rules whereby they should be applied "with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules" which purpose is to "facilitate the expeditious resolution of the real issues in civil proceedings at a minimum of expense."
It seems to me the test under Rules 292 and 293 which Mr Comino may have had in mind to the extent that his documents refer to summary judgment do apply to the situation. The test is a rigorous one in terms of the "real prospects" which litigants have.
I think it is implicit in the Rules, and it is explicitly stated in McPhee v Zarb [2002] QSC 004 at paragraph [27] that these two rules "apply mutatis mutandis to a counter-claim".
In my opinion it is a proper course to consider this application under them.
Nothing has been said to this point about the situation of the defendants. They may have invited the bringing of the application under Rule 171 by their defence and counter-claim which contended that the claim disclosed no cause of action.
The deficiencies pointed to were dealt with in an amended claim filed on the 27th of October 2005 together with an amended statement of claim. It is an unremarkable claim by lessors for the outstanding payments due under lease arrangements and interest against the lessee and against guarantors. No further pleading was forthcoming from the defendants following the amended statement of claim. They appear to have given up - being represented today by Mr Johnstone from the firm Biggs and Biggs, who are seeking an order for leave to withdraw as solicitors for the defendants.
There is no application before the Court of the kind contemplated by rule 990. Mr Johnstone concedes that has not been complied with. The basis of his application was Mr Boucher's affidavit. Tantalisingly, it says in paragraph 3, "My retainer with the defendants has ended." The Court has no way of knowing to what extent the provisions of rule 990 and associated rules for the protection of clients about to lose their representation have been complied with. It may well be that there is a consensual parting of the ways which the defendants are accepting of and may indeed have wanted.
Mr Boucher deposes that on the 21st of April "I was contacted by Mr John Tootell by phone who advised that the mail would be redirected and he had received the documentation [being the plaintiff's application and supporting material] on Thursday, 20th of April 2006." Following the statement first quoted Mr Boucher went on, "As such I advised Mr Tootell that the firm would seek to withdraw from the record on attendance on the return date of the application."
The Court, as I have observed, does not know what the defendants' attitude is. There is no mistaking Mr Comino's attitude to the withdrawal which as one would expect is consternation that the plaintiffs will be left with no usable address for service and no idea where the defendants are.
The only addresses known to anyone except perhaps the postal authorities is the City View Motel in Warwick which the defendants have some time since vacated. Galling as it must be for solicitors in the situation of Mr Boucher and Mr Johnston, it seems to me there are consequences flowing from a solicitor's getting on to the record in Court proceedings. I am personally more sympathetic to the situation of a litigant on the other side who has the advantage of a useable address for service and faces losing it.
Such a litigant is in the usual case, I would think, less favourably placed than the unwilling solicitor to locate people who have to be served with material - and in present circumstances that refers to a judgment.
Whether it is reasonable and just or not, it seems to me that for the system to work there has to be some kind of onus indirectly placed on a withdrawing solicitor to be active in the matter of identifying an address for service.
I was at first minded to grant Mr Johnston's application, with provision for service on Biggs and Biggs included in the order, the Court making it clear that that was not intended to oppose obligations on the firm, merely to identify how the plaintiff should attend to service in the proceeding.
In the end, making the concession I mentioned regarding Rule 990, Mr Johnston suggested that these matters be adjourned for two weeks to enable that deficiency, if it is one, to be attended to. There is no attraction in adjourning the plaintiff's application and imposing on somebody additional costs obligations.
For the moment, then, the firm will remain on the record.
...
HIS HONOUR: Rule 990's requirements may be waived if the court "orders otherwise". The order will be that Biggs and Biggs are granted leave to withdraw as the defendant's solicitors but their office remains the defendant's address for service until some other address for service is notified.