Woo v Prior
[2006] QDC 313
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Woo v Prior[2006] QDC 313
- Add to List
Woo v Prior[2006] QDC 313
Woo v Prior[2006] QDC 313
[2006] QDC 313
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
KWAI YIM WOO and LOP SOON WONG Plaintiffs
and
CHRISTOPHER DAVID PRIOR and
KATHERINE MARIE THOMAS Defendants
SOUTHPORT
DATE 21/08/2006
ORDER
Catchwords | Uniform Civil Procedure Rules r 9 and r 13 - by consent of the parties, proceedings commenced by claim directed to proceed as an application after closure of pleadings. |
HIS HONOUR: This is an application by the defendants seeking pursuant to Rule 16, "that the proceedings be struck out". The applicant/defendants exhibit some lack of confidence (and understandably so) in that they seek alternative relief under Rule 13, namely that the proceedings continue as if started by application with appropriate directions. Costs are sought.
Pleadings have been completed. The Claim and Statement of Claim were filed on the 9th of December 2005, the Notice of Intention to Defend and Defence on the 4th of July, 2006 and the plaintiff's reply on the 18th of August 2006.
The matter is slow to Court in that it concerns the fate of a deposit paid in connection with the sale of a house property dated the 8th of January 2005. The contract was conditional upon "the full and final settlement of the buyers' property situated at 72 River Crescent, Broadbeach Waters". The relevant condition revealed there was an unconditional contract of sale of 72 River Crescent in respect of which the 14th of February 2005 was an important date, presumably the date for completion.
It seems to be common ground now that completion did not happen. The plaintiff buyers have sought return of their deposit of $10,000. The defendant vendors have resisted that, asserting that the deposit should be forfeited to them, presumably on the basis of the plaintiffs' failure to take proper or timely steps to entitle them to return of the $10,000.
I accept from Mr Richardson for the plaintiffs, he not having been contradicted by Mr Delaney, that before these proceedings (which seek "Declaratory relief that the contract of 8th January 2005 contained a condition precedent" and that the contract had no effect, also return of the deposit) the defendants, by their solicitors, had foreshadowed a Supreme Court application by them and then a Magistrates Court claim, in which connection they enquired whether Mr Richardson's' firm had instructions to accept service.
Mr Delaney says that his clients' defence, which curiously does not include the counter-claim one would expect for forfeiture of the deposit, was filed not to concede that a claim was appropriate, but rather to protect his clients' position after some months of frustration in seeking to get Mr Richardson to agree that the proper procedure was by way of application.
Last Friday the plaintiffs apparently agreed to the relief sought under Rule 13. I am not sure whether that involves any admission that the claim was inappropriately started as a claim rather than an application.
...
HIS HONOUR: It seems to me that the rules preceding rule 13 are somewhat unclear on the borderline between application matters and claim matters. Rule 9 requires a claim, but not if the rules "require or permit" an application. It is far from clear to me that the present circumstances are ones for an application. It is far from clear that there are not factual issues lurking; all this is by the by in the sense the parties are agreed that the matter should proceed by way of application. They join in their request for directions limited to disclosure and the Court fixing a hearing date today. Mr Delaney has expressed a view, without detailed submissions to support it, that the claim procedure may be more time and costs consuming. In light of the orders being made today, assuming Mr Delaney's view is correct, once pleadings have closed, I trust that will not happen.
This argument between the parties is about costs, Mr Richardson suggesting the costs be in the cause Mr Delaney on the basis that he has scored a victory seeking costs in favour of his clients.
He has also made the contention which Mr Richardson has not resisted, that is inherent in the (defence which to a considerable extent is an uninformative document on the professed basis that the defendants do not know what has happened) that if the claim fails the defendants ought to have the deposits moneys. There seems no point in the Court requiring further clarification of this.
The parties are not asking for directions that the matter proceed on affidavit. While it seemed there was a possibility I might be the trial judge, the tentative planning for relevant weeks at Southport does not enable that to be accommodated easily. So, costs are better disposed of rather than reserved for consideration later, which I would have done had I been the trial judge. On balance I think Mr Richardson's approach is the right one. Whoever gets the money as a result of a Court order if the parties are unable to resolve the fate of $10,000 in the meantime ought to get the costs of today, which has been useful in advancing the matter.
This is a very unusual application. I am not aware of any under Rule 13 previously, although successful applications under Rule 14 are common. The orders will be:
- (1)That pursuant to Rule 13 the proceeding go ahead as an application.
- (2)That the parties make disclosure on or before the 11th of September 2006.
- (3)That the hearing occur on the 28th of September 2006.
- (4)That costs be cost and cause.
- (5)Liberty to apply.