Kerr v Palmer as Joint Trustee of the Palmer Discretionary Trust
[2011] QDC 208
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- Unreported Judgment
- Kerr v Palmer as Joint Trustee of the Palmer Discretionary Trust[2011] QDC 208
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Kerr v Palmer as Joint Trustee of the Palmer Discretionary Trust[2011] QDC 208
Kerr v Palmer as Joint Trustee of the Palmer Discretionary Trust[2011] QDC 208
DISTRICT COURT OF QUEENSLAND
CITATION: | Kerr v Alexandra Palmer as Joint Trustee of the Palmer Discretionary Trust & Anor [2011] 208 |
PARTIES: | Rohan KerrPlaintiff v Alexandra Palmer as Joint Trustee First Defendant of the Palmer Discretionary Trust And Anthony Palmer as Joint TrusteeSecond Defendant of the Palmer Discretionary Trust |
FILE NO/S: | D59/2010 |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 16 September 2011 |
DELIVERED AT: | Southport |
HEARING DATE: | 5 September 2011 |
JUDGE: | Newton DCJ |
ORDER: | The first defendant and the second defendant are to pay the plaintiffs costs of and incidental to this application to be assessed on a standard basis |
COUNSEL: | Mr C Upton for the applicant. Mr MJ McDonald for the respondents. |
SOLICITORS: | MSB Lawyers for the applicant. Parker Simmonds Lawyers for the respondents. |
- [1]This is an application by the plaintiff (“Kerr”) for summary judgment. The application was filed on 21 July 2011. An amended defence was filed on 1 September 2011. That amended defence raised triable issues. Kerr consents to the summary judgment Application being dismissed but seeks his costs.
- [2]The relevant facts as relied on by the first and second defendants (“Palmer”) are as follows. On 2 February 2010, Kerr issued a claim against Palmer claiming “… the sum of $75,000.00 being monies owing from the Defendant in accordance to a loan agreement issued between both parties…”. On 7 July 2010, Palmer filed a notice of intention to defend and a defence to that claim. On 27 June 2011, Kerr filed an amended Claim, amending his cause of action by deleting the previous cause of action and substituting a claim for “… the sum of $75,000.00 being monies due and payable by the First Defendant and Second Defendant to the Plaintiff…”. At the same time, Kerr also filed an amended statement of claim. The amended claim and the amended statement of claim were served on Palmer’s solicitors on 29 June 2011. On 20 July 2011, Palmer’s solicitors requested further and better particulars of paragraphs 3(iii) and 6 of the amended statement of claim. On 21 July 2011, Kerr applied to the Court for summary judgment based on the amended claim and the amended statement of claim. On 1 September 2011, Palmer filed and served their amended defence.
- [3]Counsel for Palmer submits that pursuant to Rule 137 of the Uniform Civil Procedure Rules (“UCPR”), the defendant had 28 days after service of the claim in which to file a notice of intention to defend. UCPR 138 provides that, notwithstanding the provisions of UCPR 137, a defendant may file and serve a notice of intention to defend at any time before judgment, even if the defendant is in default of Rule 137. UCPR 292(1) provides that a plaintiff may, at any time after the defendant files a notice of intention to defend, apply to the Court for judgment against a defendant. Palmer contends that this means that, by implication, any application for summary judgment, filed before the expiration of the 28 day period, is filed prematurely and must be struck out. Palmer submits that Kerr filed his application for summary judgment eight days before the expiration of the due date for Palmer to file an amended Defence and in so doing has failed to comply with the requirements of UCPR 292(1).
- [4]The major difficulty with the submissions of Palmer is that, by operation of Rule 385(2) and Rule 387, a defendant who has already pleaded and who is served with an amended statement of claim has eight days in which to plead to the amended pleading. In NAB Ltd v Sinnathamby & Ors,[1] Wilson J confirmed that a defendant who has already pleaded and who is served with an amended statement of claim has eight days in which to plead to the amended pleading. Rule 385 provides as follows:
“385 Pleading to amendment
(1)If a party amends a pleading, another party may plead to the amended pleading or amend the opposite party’s own pleading.
(2)The pleading or amendment must be served within the time the opposite party then has to plead, or within 8 days after the day of being served with the amendment, whichever is the later.
(3)If an opposite party has pleaded before being served with an amendment to a pleading and does not plead again within the time specified in subrule (2), the opposite party is taken to rely on the original pleading as an answer to the amended pleading.”
Rule 387 provides as follows:
“387 When amendment takes effect
(1)If a document is being amended under this part, the amendment takes effect on and from the date of the document being amended.
(2)However, an amendment including or substituting a cause of action arising after the proceeding started takes effect on and from the date of the order giving leave.
(3)Despite subrule (2), if an amendment mentioned in subrule (2) is made, then for a limitation period, the proceeding as amended is taken to have started when the original proceeding started, unless the court orders otherwise.”
- [5]Accordingly, Palmer had eight days from 29 June 2011 to file an amended defence. Thus, the period for amendment expired on 7 July 2011. No amended defence was filed within that time and, by operation of Rule 383(3), Palmer is taken to rely upon the original defence as an answer to the amended pleadings. The application for summary judgment was filed on behalf of Kerr on 21 July 2011. The amended defence having been filed and served on 1 September 2011 effectively allowed only two business days before the hearing of the summary judgment application.
- [6]It should be noted that no correspondence passed between the parties in the time between the service of the amended statement of claim and the time prescribed to file an amended defence in which any extension of time was sought in order to file an amended defence. I accept that had Palmer filed and served an amended defence within the prescribed time, no need would have arisen for the hearing of this matter. It is the misapprehension on the part of Palmer as to the time by which an amended defence was required to be filed and served that has led to the present situation. In those circumstances I am of the view that Kerr should be awarded his costs.
- [7]I order that the first defendant and the second defendant are to pay the plaintiff’s costs of and incidental to this application to be assessed on a standard basis.
Footnotes
[1] [2000] QSC 303 (5 September 2000) paragraph 5.