TeeCee Holdings Pty Ltd v Koleszar
[2010] QDC 354
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- Unreported Judgment
- TeeCee Holdings Pty Ltd v Koleszar[2010] QDC 354
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TeeCee Holdings Pty Ltd v Koleszar[2010] QDC 354
TeeCee Holdings Pty Ltd v Koleszar[2010] QDC 354
DISTRICT COURT OF QUEENSLAND
CITATION: | TeeCee Holdings Pty Ltd & Anor v Koleszar & Anor [2010] QDC 354 |
PARTIES: | TEECEE HOLDINGS PTY LTD (First Plaintiff) AND JOSEPH TOTH (Second Plaintiff) AND ZSOLT KOLESZAR AND MARGARET KOLESZAR (Defendants) |
FILE NO/S: | BD2254/08 |
DIVISION: | Civil |
PROCEEDING: | Application for summary judgment |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 27 August 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 August 2010 |
JUDGE: | R Jones DCJ |
ORDER: | Application dismissed. |
CATCHWORDS: | SUMMARY JUDGMENT – Relief Sought Only in Respect of Part of Claims Against Defendants – numerous claims against defendants – claim seemingly involving combination of business and family transactions – action one likely to revolve around matters of credit Uniform Civil Procedure Rules 1999 r 292 Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 Commissioner of Stamp Duties v Agenti Architects Pty Ltd & Ors [2003] QCA Young v Queensland Trustees Ltd (1956) 99 CLR 560 |
APPEARANCES: | Ms J Dixon, solicitor for the applicants Ms S O'Reilly, solicitor for the respondents |
- [1]This is an application for summary judgment against the defendants pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (UCPR). The applicants do not seek to recover the totality of the relief sought in their claims against the defendants. Instead, judgment is sought in respect of only three of the claims against the them.
- [2]The statement of claim seeks in total the recovery of in excess of $100,000 from the defendants, together with declaratory relief concerning property located at Folkstone Avenue. The amounts claimed range from the very small (approximately $260, based on an action for unjust enrichment: statement of claim paras 63-69) to a claim for nearly $32,000, primarily based on an action in debt (statement of claim paras 21-43). The various causes of action alleged against the defendants fall under the following broad headings in the statement of claim:
- payment of electricity bill at Manly Close
- purchase and refurbishment of property at Folkstone Avenue
- breach of Folkstone agreement
- mistake of fact
- consideration wholly failed
- money leant
- money paid at the request of defendants
- constructive trust
- quantum meruit
- restitution for services rendered
- electricity used by the defendants at Folkstone Avenue
- further loans to the defendants
- money paid at the request of defendants
- loan to female defendant
- phone cards purchased for the defendants
- laptop computer purchased for the male defendant.
- [3]A number of alternate claims or causes of action are bound up in the statement of claim. The statement of claim comprises of 90 paragraphs.
- [4]The application seeks summary judgment for $260.35 in respect of a claim based on unjust enrichment; the sum of $17,518.45, based on an action in debt; and a further sum of $2,200, also primarily pleaded as a debt. In respect of the last two claims, in the alternative to the claim of a debt due and owing, there is a claim to the effect that the money was paid at the request of the female defendant.
- [5]It is tolerably clear that all of the claims against the defendants arise out of a mixture of business and family arrangements between the parties. The second plaintiff’s once de facto partner is the mother and mother-in-law of the female and male defendants respectively. Not surprisingly, the de facto relationship is now at an end.
- [6]In the applicants’ written submissions, it was observed that the proceedings between the parties thus far could only be described as being “overtly adversarial”. It was also acknowledged that the claim and statement of claim are lengthy and involve numerous causes of action and “on its face” is not one suitable for an application for summary judgment. I agree with all of those observations.
- [7]However, notwithstanding those concessions, the applicants seek judgment in respect of the claims identified above on the basis that, when regard is had to the material, the court would be satisfied that the defendants had no real prospect of successfully defending them. Central to the case for the applicants is the proposition that once these debts (if that is what they properly are) are admitted, which they are, then the onus rests on the defendants to show that they have been repaid. The defendants’ primary defence to each of these claims is that they have been repaid. The applicants rely on the High Court decision of Young v Queensland Trustees Ltd[1] to support their submissions.
- [8]Rule 292 of the UCPR relevantly provides that the court may enter judgment when it is satisfied that the defendant has no real prospects of successfully defending all or part of the plaintiffs’ claim.
- [9]In Deputy Commissioner of Taxation v Salcedo[2], Williams JA at paragraph 17 said in respect of Rule 292:
“…Ultimately the rules are there to facilitate the fair and just resolution of matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial…”
- [10]Atkinson J at para 47 said:
“…the test to be applied is that … the court must consider whether there exists a real, as opposed to a fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment. These rules benefit both parties as neither faces the expense of taking a matter to trial when the result of such a trial is inevitable as there is no real prospect of one of the parties being successful. There are also obvious advantages to the administration of justice if matters that can and ought be dealt with summarily, are so dealt with.”
- [11]
“…Although the plaintiff bears the onus of proof on the application, there is an evidentiary onus on the defendants to show some basis for arguing that there is a real prospect of a successful defence, within the meaning of the rule … the newer rule is not intended to dispense with the need for a trial when the defendant persuades the court that there are issues of fact and matters of law which reasonably call for a full hearing; and show there are realistic, as opposed to fanciful, prospects the defendant will succeed.”
- [12]There is some substance in this application. As I have already indicated the effect of the defence in respect of each claim is that the amounts claimed have been repaid. However, when the applicants sought particulars of the payment, including when the payment was made, how it was made and to whom it was made, the defendants’ said that the amount of $260.35 was paid by the defendants to the second plaintiff as director of the first plaintiff. And, in respect of the other debts, the defendants asserted that those monies were repaid to the second plaintiff “in various instalments”.
- [13]Not content with those particulars, the applicants sought further particulars. In response to that request, on 28 November 2008 the defendants asserted that:
“… the defendants paid cash out of a joint account within a short time following the plaintiffs’ request for payment. The payments were made to either the second plaintiff or to Sue, the second plaintiff’s secretary.”
- [14]In the female defendant’s affidavit filed 10 August 2010, she does little than say that she repeats and relies on the relevant paragraphs of the defence.
- [15]The second plaintiff’s secretary denies by way of affidavit receiving any repayment monies and no documentary evidence in support of repayment has been provided by the defendants. While it could reasonably be expected that a person might forget the details of the payment of smaller amounts of money of in the order of $260 or even $2,200 and have no documentation to corroborate that payment, that is less likely in respect of an amount of in the order of $17,500.
- [16]Overall the material put forward in support of the defendants’ position is not particularly convincing. However, notwithstanding the force of the submissions made on behalf of the applicants and the generally unsatisfactory nature of the material relied on by the defendants, I have decided that the application should be refused.
- [17]Bearing in mind the unusual circumstances surrounding the subject transactions and the others pleaded in the applicants’ statement of claim, it could not be discounted that the previous personal relationship between the second plaintiff and the defendants might explain, at least to some extent, the lack of any details and formal records concerning the transactions. Much more importantly, however, in my view is that this case is likely to turn to a significant extent on matters of credit. This application concerns only three transactions out of at least 10. Should the credibility of the second plaintiff be found wanting in respect of one or more of the other claims, it might well affect the outcome of some (or even all) of the other claims against the defendants. In this regard, it is of some relevance that one of the claims in the amount of $31,827.81, alleged to be owed pursuant to an agreement, or alternatively because of a mistake of fact, or alternatively in circumstances where consideration has wholly failed, or alternatively as a loan, or alternatively as being money paid at the request of the defendants,[4] is said by the mother of the female defendant to have been monies advanced by her and not the applicants and that that loan had been fully repaid to her by the defendants.
- [18]In circumstances involving such a mixture of personal and business arrangements and such complex (if not convoluted) pleadings, and where it is tolerably clear that real credit issues will loom large in any hearing of this matter, I am not prepared to conclude that the defendants have no real prospects of defending themselves against these claims and that there is no need for a trial.
- [19]Accordingly the orders of the court will be that:
- The application is refused.
- I will hear from the parties as to costs.