Nichols v Auctioneers and Agents Committee
[2006] QDC 86
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- Unreported Judgment
- Nichols v Auctioneers and Agents Committee[2006] QDC 86
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Nichols v Auctioneers and Agents Committee[2006] QDC 86
Nichols v Auctioneers and Agents Committee[2006] QDC 86
DISTRICT COURT OF QUEENSLAND
CITATION: | Nichols v Auctioneers and Agents Committee [2006] QDC 086 |
PARTIES: | LEX NICHOLS (Plaintiff/Respondent) v AUCTIONEERS AND AGENTS COMMITTEE (Defendant/Applicant) |
FILE NO/S: | CLD1919 of 1991 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 24 April 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 March 2005 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Application for summary judgment by the defendant under rule 293 of the Uniform Civil Procedure Rules 1999 – dispute as to question of law on the pleadings – plaintiff’s claim misconceived – no real prospect of success – striking out claim – indemnity costs. Auctioneers and Agents Act 1971 ss. 57, 65, 98 and 99. Uniform Civil Procedure Rules 1999 rr 171, 293. Deputy Com of Taxation v Salcedo [2005] QCA 227 Goldsmith v Sandilands [2002] HCA 31 (8 August 2002) Shipard v Motor Accident Commission (1997) SASR 240 |
COUNSEL: | Mr R M Lawson for the applicant. Mr P W Hackett for the respondent. |
SOLICITORS: | Crown Law for the applicant. Robinson & Robinson for the respondent. |
Introduction
- [1]This is an application pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (“UCPR”) for summary judgment by the defendant, the Auctioneers and Agents Committee (“the applicant”) or in the alternative, an order against the plaintiff, Lex Nichol (“the respondent”), that his claim be struck out “…for failing to disclose a reasonable cause of action” pursuant to r 171 of the UCPR.
- [2]It is common ground that the application ultimately turns on a question of law relating to the formulation of the pleadings and the proper construction of the relevant legislation being the Auctioneers and Agents Act 1971 (“the Act”).
Background Facts
- [3]The background to this application relates to the sale of a motor vehicle to the respondent by a person by the name of Lintern who, it is alleged, “…held himself out as a licensed motor vehicle dealer trading as ‘Rick’s Motors’…”.[1] The vehicle in question was subsequently found to be a stolen vehicle and therefore the sale of the vehicle by Lintern to the respondent failed to convey clear title to the motor vehicle to the respondent.
- [4]The respondent now claims against the Auctioneers and Agents Fidelity Guarantee Fund (“the Fund”) pursuant to the Act for an amount of money arising out of the tainted transaction between Lintern and the respondent.
Applicant’s Submissions
- [5]The applicant’s ultimate submission is that the respondent, in his amended plaint filed 12 June 1997, failed to plead the correct provision of the Act which gives rise to the cause of action relied upon.
- [6]The prayer for relief in the respondent’s amended plaint states the following:
“The Plaintiff’s claim against the Defendant is for FORTY FOUR THOUSAND AND FORTY ONE DOLLARS AND EIGHTY ONE CENTS ($44,041.81) as a debt due and owing to the Plaintiff by the Defendant as a consequence of the Defendant’s failure to admit the claim made by the Plaintiff for payment by the Auctioneers and Agents Fidelity Guarantee Fund (hereinafter called “the Fund”) under Section 98 of the Auctioneers and Agents Act….”
- [7]The material facts allege that there was a failure to convey good title to the motor vehicle in question as a result of the sale to the respondent; however it is the applicant’s submission that this is not the proper basis of a claim under s 98 of the Act as pleaded.
- [8]Section 98 of the Act relevantly provides:
“(1) Subject to this Act, the Fund shall be held and applied for the purpose of reimbursing persons who may suffer pecuniary loss because of—
- (a)the contravention of any provision of section 62, 63, 65, 66 or 68 or of Division 1 of Part 6 by a prescribed person; or
- (b)the contravention of any provision of section 67 or 67A of the Auctioneers and Agents Act 1971 by a prescribed person before the commencement of section 4 of the Land Sales Act 1984; or
- (c)the contravention of any provision of the Land Sales Act 1984 by a vendor’s agent who is a prescribed person; or
- (d)the stealing or fraudulent misappropriation or misapplication by a prescribed person of money or other valuable property entrusted to the prescribed person in the course of the business of a licensee as an auctioneer, real estate agent, commercial agent or motor dealer.
(1A) In subsection (1)—
“prescribed person” means a licensee, the licensee’s partner, employee, agent or any person having the apparent charge or control for the time being of the office or business of the licensee….
…
(5) For the purposes of this section and sections 99, 100 and 102 to 104—
“licensee” includes a person who carries on the business of an auctioneer, a real estate agent, a motor dealer or a commercial agent and is not the holder of a licence…”
- [9]The applicant contends that the respondent’s case “as pleaded clearly relies solely upon a breach of section 57 of the Act”[2] which provides:
“Guarantee of title
If a used motor vehicle is sold by or on behalf of a motor dealer, whether by auction or any other mode of sale, the motor dealer—
- (a)shall be deemed, at the time of sale, to guarantee clear title to the motor vehicle to the purchaser; and
- (b)shall ensure that the purchaser is given, at the time of sale, a duly completed statement in writing in the prescribed form and obtain from the purchaser an acknowledgement in writing of receipt of the statement.”
- [10]The applicant submits that an alleged contravention of s 57 of the Act “…is not one of the sections referred to in section 98 and is therefore not a basis which permits a claim pursuant to the Act”.[3]
The Respondent’s Submissions
- [11]The respondent submits that the claim does not arise out of s 57 of the Act but rather by virtue of s 65 which relevantly provides:
“False representations as to property
- (1)No…motor dealer…shall make to any purchaser…any statement or representation that is false or misleading…concerning any real or personal property which the person…has for sale…as a motor dealer…
…
- (2)Without limiting the generality of subsection (1) or (1A), a statement or representation shall, for the purposes of that subsection, be deemed to be false or misleading if it is of such a nature that it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the statement or representation indicates that that state of affairs does exist.”
- [12]The respondent submits that an alleged contravention of s 65 of the Act is clearly one of those sections referred to in s 98(1)(a) as being conduct which is compensable and a basis for a claim under that section of the Act.
- [13]The respondent further submits that this view is clear from the literal reading of s 99 of the Act which relevantly provides:
“(1) Subject to section 98, the Committee may receive and settle any claim against the Fund at any time after the contravention or commission of the stealing or fraudulent misappropriation or misapplication in respect of which the claim arose but no person shall be entitled, without the leave of the Committee, to commence any action in relation to the Fund unless the Committee shall have disallowed the person’s claim….”
- [14]Further the respondent pointed to the memorandum of 12 November 1990 from the Office of the Registrar of Auctioneers and Agents (Exhibit 3) where it was stated:
“Loss Through Breach
The car did not have clear title. Any motor dealer that Guaranteed clear title in respect of it would breach s 65 irrespective of his knowledge.”
- [15]In terms of the orders to be made, the respondent submits that an order to strike out the amended plaint “would be an inappropriate course unless there was leave to re-plead because the action would otherwise be statute barred”.[4] In all the circumstances the respondent rejects the applicant’s submission that the amended plaint is misconceived in that it fails to plead the proper section of the Act which gives rise to the cause of action.
The Law
- [16]Rule 293 of the UCPR provides as follows:
“(1)A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
(2)If the court is satisfied—
- (a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
- (b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- [17]The test to be applied when considering whether summary judgment should be entered for either a plaintiff or defendant in a proceeding under rr 292 and 293 of the UCPR has been the subject of recent consideration by our Court of Appeal in the matter of Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 (“Salcedo”).
- [18]As stated by Williams JA at paragraph [11] with whom McMurdo P and Atkinson J agreed:
“… Rule 292 and r 293 brought about significant changes in the law and procedure relating to summary judgment. The wording of r 292 and r 293 is clearly based on the drafting used in Part 24 of the Civil Procedure Rules (UK) which came into force in the United Kingdom in 1999. In Swain v Hillman [2001] 1 All ER 91 the Court of Appeal had to consider rule 24.2, the equivalent of rule 292. Lord Woolf MR said at 92:
"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."
Later, again speaking of the rule, he said at 94:
"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 interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests 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."
In his reasons at 95, Pill LJ accepted that the term "real" was used in contradistinction to "fanciful". The third member of the court, Judge LJ, whilst recognising that summary judgment was a "serious step", went on to say at 96:
"This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable." …”
- [19]It is unnecessary for me to repeat what Williams JA said further in paragraphs [12] to [17] inclusive of his judgment but it is suffice to say that those paragraphs provide a succinct summary of the “test” to be applied by a judicial officer when considering an application for summary judgment under the UCPR. Further to this the comments of Atkinson J at paragraph [45] are also apposite.
- [20]The applicant’s core submission is that the respondent’s case must be premised upon s 57 of the Act because of his pleading in paragraph (1)(c) of the Amended Plaint whereas the respondent submits that while s 57 of the Act establishes the basis of his cause of action in that the motor dealer is “…deemed… to guarantee clear title to the motor vehicle to the purchaser…” (which did not occur), his claim against the Fund under s 98 of the Act is based upon the motor dealer’s “false representations” which breached s 65 of the Act referred to in s 98(1)(a) aforesaid.
- [21]If the applicant was in doubt as to what section the respondent was entitled to base his claim under s 98 of the Act it would have been open to it to seek further and better particulars of the respondent’s claim which it was entitled to do upon the principle stated by Gleeson CJ in Goldsmith v Sandilands [2002] HCA 31 (8 August 2002) at [2]:
“…The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial"…”
The applicant has not chosen to do so despite the Amended Plaint being filed almost nine years ago.
Findings
- [22]In all the circumstances and on a review of all relevant authorities, I make the following findings:
- (a)The respondent’s Amended Plaint filed 10 June 1997 claiming relief for the applicant’s failure to admit the respondent’s claim under s 98 of the Act is not misconceived as his claim against the Fund is not premised solely on s 57 of the Act which is in the nature of a utility section enabling a claimant under the Act to establish a breach of it entitling a claim for reimbursement to be made under s 98 of the Act.
- (b)I am not persuaded that the applicant has discharged its onus under r 293 of the UCPR as I am not satisfied that the respondent “…has no real prospect of succeeding on all or a part of (his) claim” and therefore I find the application must fail.
- [23]My orders in this matter will be:
- (a)The application is dismissed.
- (b)The applicant pay the respondent’s costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale.