Geraldine Investments Pty Ltd v Williams
[2009] QDC 197
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- Unreported Judgment
- Geraldine Investments Pty Ltd v Williams[2009] QDC 197
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Geraldine Investments Pty Ltd v Williams[2009] QDC 197
Geraldine Investments Pty Ltd v Williams[2009] QDC 197
DISTRICT COURT OF QUEENSLAND
CITATION: | Geraldine Investments Pty Ltd (trading as Ray White on Mulgrave) v Williams [2009] QDC 197 |
PARTIES: | GERALDINE INVESTMENTS PTY LTD (ACN 010 330 864) trading as Ray White on Mulgrave Applicant/plaintiff v RICHARD ALLAN WILLIAMS Respondent/defendant |
FILE NO/S: | Cairns 111 of 2009 |
DIVISION: | Civil |
PROCEEDING: | Application for summary judgment |
ORIGINATING COURT: | District Court of Queensland, at Cairns |
DELIVERED ON: | 26 June 2009 |
DELIVERED AT: | Cairns |
HEARING DATE: | 18 June 2009 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: |
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CATCHWORDS: | PROCEDURE – SUMMARY JUDGEMENT – STRIKING OUT OF PLEADINGS – where pleadings lack particularity Property Agents and Motor Dealers Act 2000 Uniform Civil Procedure Rules r 151, r 171(1)(b), r 292 Cases considered: Bernstrom v National Australia Bank [2002] QCA 231 Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135 Mathews v Morgan & Ors [2005] QSC 222 |
COUNSEL: | J Sheridan for applicant plaintiff B F Ryan for respondent defendant, by direct brief |
SOLICITORS: | Williams Graham Carman Defendant self-represented |
- [1]The plaintiff, a company trading as a real estate agency, sues for commission allegedly payable by the defendant on the sale of his property pursuant to a standard form of contract under the Property Agents and Motor Dealers Act 2000. Mr Williams, the defendant, has filed a notice of intention to defend and a defence, and a counterclaim. Geraldine Investments seeks summary judgment or, in the alternative, that both Mr Williams’ defence, and his counterclaim be struck out.
- [2]The pleadings show that, in truth, only two substantive paragraphs of Geraldine Investments’ statement of claim are actually disputed in the defence: paragraphs 4 and 8. The first involves an assertion, by Mr Williams, that the contract for sale of a property in respect of which commission is claimed was ‘terminated’ and ‘not renewed by the defendant’. (Confusingly, elsewhere it is said that the contract was ‘not completed’.)
- [3]There is plain evidence from the actual purchaser, however, who confirms introduction to the property by the plaintiff, that the contract went to completion. This part of the pleading is incomprehensible, but even on the best view for the defendant, it cannot be seen how it could ever constitute an arguable defence.
- [4]The second, relevant element of the pleading involves an assertion that the plaintiff failed to ‘market’ the defendant’s property ‘in accordance with the terms of the contract’. This pleading is again, however, diffuse and difficult to understand. It is not clear whether any of the matters pleaded by the defendant as alleged particulars of these failures are referable to the agency contract. More importantly, on their face, even if proved they would not necessarily invalidate the agency contract. Even more telling, however, against the defendant is the clear evidence that he signed the contract of sale himself, and completed it – an event carrying a strong inference that the accepted and was satisfied with the price it contained.
- [5]If he had matters of complaint about the plaintiff he might have brought them to the attention of the Office of Fair Trading – and, in fact, he actually complained of that Office who investigated it and found that there was insufficient evidence to do anything to proceed against the plaintiff.
- [6]The application for summary judgment is brought under Rule 292 and involves considering whether there is a realistic as opposed to a fanciful prospect that the defence might successfully resist the plaintiff’s claim[1].
- [7]At the highest it might be said that some of the matters set out in paragraph 4 of the defence might be germane to a counterclaim, but they do not constitute a good defence to the plaintiff’s simple claim for commission payable under a contract signed by the defendant, in respect of the sale of a property which was completed in terms of a contract, also signed by the defendant. This is a clear case warranting an order for summary judgment in the plaintiff’s favour.
- [8]The counterclaim is, on the face of the pleading, said to arise (again) from the plaintiff’s failure to market and sell the defendant’s property ‘… in terms of the agreed arrangements between the plaintiff and the defendant.’ Further and better particulars have been pursued by the plaintiff, without great success; some were provided by the defendant in January 2008 in which it is said that the terms of the alleged agreements were ‘contained in the contract of sale’; but, Mr Williams has failed to particularise the terms upon which his counterclaim relies.
- [9]A breach of contract of the kind alleged must be specifically pleaded;[2] and, the plaintiff’s entitled to be informed of the legal basis for the defendant’s counterclaim in order to properly defend it.[3] An affidavit from the plaintiff’s solicitors sworn 28 May 2008 shows numerous requests for these particulars but they have not been delivered.
- [10]The counterclaim also contains some attempt at particulars of the defendant’s alleged damages. The first sum is $2,000 said to be a penalty agreed between the parties payable because of the late settlement of the contract. It is not pleaded with any specificity and it is difficult to see how late settlement could be attributable to the plaintiff, a real estate agent, and not to the purchaser of the defendant’s property or, of course, the defendant himself. He signed the contract and had the opportunity to seek the inclusion of special conditions before signing.
- [11]Next, there is a claim for $3,780 for loss of rental income. There are also claims for $84,000 for the alleged ‘loss in value of the real property’, and $10,004.90 for interest paid by the defendant on his mortgage. The plaintiff’s requests for particulars of these various elements of the counterclaim were appropriate and reasonable, and it has been very patient. The pleading’s primary defect is a want of particularity, or words and phrases establishing relevance to a claim for damages and in that sense has a tendency to prejudice or delay a fair hearing: UCPR, r 171(1)(b).
- [12]That said, the cause of action upon which the counter claim is said to be based is not unknown to law, and the defendant ought to be allowed the further opportunity to plead and deliver a fresh counterclaim with appropriate particulars within 14 days.
- [13]The parties signified that they wished, upon receipt of these reasons, to deliver written submissions about costs. Those submissions should be exchanged and delivered to me within 14 days.