OSM Group Pty Ltd v Holden[2013] QDC 151

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The proceeding arises from an agreement between the plaintiff and the defendant in relation to the day to day operations of OSM Innovative Training Solutions (“ITS”), a registered training organisation.

2. [2]
   The plaintiff asserts that it and the defendant expressly agreed to the manner in which and powers with which the defendant would assume responsibility for the day to day operations of ITS and how he would be remunerated.

3. [3]
   The plaintiff also relies upon implied terms of the agreement and fiduciary duties alleged to have arisen by reason of the relationship between it and the defendant. It pleads that by specific conduct, the defendant demonstrated an intention not to be bound by the agreement. That conduct is asserted to amount to a repudiation of the agreement and the plaintiff says that it accepted that repudiation and terminated the agreement. It also asserts that the defendant, in breach of a number of both express and implied terms and fiduciary duties, has caused it loss and damage.

The pleadings

4. [4]
   The defendant pleaded to the Statement of Claim and in his Defence made various express admissions. The plaintiff contends that the defendant also made denials and non-admissions that amount to deemed admissions pursuant to r 166 of the Uniform Civil Procedure Rules (“UCPR”).

5. [5]
   The plaintiff in its Reply adopted the express admissions, adopted the alleged deemed admissions and pleaded the basis for the allegations it so characterised: r 166(5) UCPR.

6. [6]
   The plaintiff amended its Statement of Claim. The defendant did not plead in response to the Amended Statement of Claim within the time limited thereby in r 385(2) UCPR and has not applied to withdraw any deemed admissions. Hence the plaintiff contends that the defendant is now taken to rely on his original Defence in respect to the Amended Statement of Claim.

7. [7]
   The defendant has filed an Amended Defence, but without leave of the court, which is necessary in the circumstances in this case.

The Application

8. [8]
   The applicant (the “plaintiff”) has applied for summary judgment against the respondent (“the defendant”) pursuant to r 190 UCPR (on the basis of deemed admissions in his defence) or alternatively r 292 UCPR (on the basis that his defence does not establish a real prospect of success at a trial). The application was argued by the defendant on the basis that r 166 UCPR had been complied with in pleading the Defence and that it was not necessary to rely on the Amended Defence.

Submissions

9. [9]
   The defendant’s submission is that the issue of deemed admissions cannot arise with respect to allegations of law. Mr Martin submitted that the position is not changed where there are allegations of mixed fact and law because r 166 UCPR only deals with allegations of fact and that he is not required to plead to them.

10. [10]
    Further, Mr Martin submitted that the explanation for a denial depends on the nature of the allegation: some disputed allegations are pleaded as particulars and are not “material facts”. Hence there is no requirement to plead to them.

11. [11]
    The plaintiff relies on an interpretation of the pleadings that characterises the disputed parts of the pleadings as allegations of material facts and submitted that the denials in the Defence are explained simply as being untrue and no direct explanation has been given for the defendant’s belief; and that the non admissions are not accompanied by an explanation for the defendant’s uncertainty as to the fact’s truth or falsity.

Pleadings – the legal premises

12. [12]
    The fundamental function of pleadings is to identify the issues and state with sufficient clarity the case that must be met by an opposing party.

13. [13]
    Rule 149 UCPR relevantly provides as follows:

“r 149 Statements and pleadings

(1)  each pleading must –

… …

(b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved.”

14. [14]
    Rule 166 UCPR provides as follows:

“r 166 Denials and non admissions

(1) an allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless –

(a) the allegation is denied or stated to be not admitted by the opposite party in a pleading; or

(b)  rule 168 applies.

(3) a party may plead a non admission only if –

(a) the party has made enquiries to find out whether the allegation is true or untrue; and

(b) the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or non admission of the allegation is contained; and

(c) the party remains uncertain as to the truth or falsity of the allegation.

(4) a party’s denial or non admission of an allegation of fact must be accompanied by direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.

(5) If a party’s denial or non admission of an allegation does not comply with sub-rule (4), the party is taken to have admitted the allegation.”

15. [15]
    The plaintiff relied on statements of principle in Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 with respect to the r 166 UCPR submission.

16. [16]
    Firstly, with respect to r 166 (4), “a party may only plead a denial of an allegation of fact made by its opponent if the party believes that allegation to be untrue” and the denial “must be accompanied by a direct explanation for the party’s belief that the allegation is untrue”: Daubney J at [21]-[22].

17. [17]
    The ‘direct explanation’ “must be as brief as is consistent with a statement of material facts but not evidence”: Ballesteros v Chidlow [2005] QSC 285 per White J at [20]. “The direct explanation itself … is not a statement of a material fact for the purposes of r149”: Daubney J in Cape York Airlines at [30]. It “… does not of itself constitute a further issue for determination at the trial. A denial in a defence puts in issue the fact alleged in the statement of claim to which the denial is a response. If a defendant, when putting on its defence, pleads to further material facts or matters to prevent surprise”, it is then for the plaintiff to Reply: Daubney J (supra) at [36].

18. [18]
    Further, Daubney J wrote, at [29] with respect to a ‘direct explanation’, that:

“A party’s direct explanation may, depending on the nature of the allegation in question, be straightforward (e.g. “this event alleged by the plaintiff did not occur at all”). It may be that the party’s belief that the allegation is untrue is founded on a different factual matrix (e.g. “this event did not occur in the manner alleged by the plaintiff”). Or it may be that the party believes the allegation to be untrue because the allegation is inconsistent with other matters which the party would propound (e.g. the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue”). I should hasten to add that, in giving these examples, I do not purport to cover the field of possible direct explanations, nor should these examples be regarded as templates. I refer to them, however, to reinforce the proposition that what r166 (4) requires is exactly what it says – a direct explanation for the belief”.

19. [19]
    Rhetorically, his Honour wrote, at [28], that the direct explanation is the answer to the question, “Why am I denying this fact?”

20. [20]
    Secondly, a non admission can only be made if a party is uncertain as to the truth or falsity of the allegation and it must be accompanied by a direct explanation for the party’s belief that the allegation cannot be admitted. What I have said about the direct explanation of a denial applies equally to a non admission of an allegation of fact.

21. [21]
    Where there are allegations of mixed fact and law, Dixon J in Thomas v The King (1937) 59 CLR 279, at 306, wrote that “a statement of a conclusion expressed as fact is ordinarily treated as a statement of fact”, albeit made in the context of a criminal case where the defence of justification – an honest and reasonable, but mistaken, belief in the existence of any state of things (that is, a mistake of fact) – was considered. His Honour wrote “The man who knows the facts is taken to know the law; but when you state that as a fact which no doubt involves, as most facts do, a conclusion of law, there is still a statement of fact and not a statement of law”.

22. [22]
    However, in Dovuro Pty Ltd v Wilkins [2003] 215 CLR 317, Gummow J wrote, at [69]-[70] that “a party may admit the facts from which a conclusion of law may then be drawn”, but that: “Different questions arise where, as here, the suggested admission includes a conclusion which depends upon the application of a legal standard”. His Honour wrote that “it is unsettled whether admissions may be made of matters of mixed law and fact”, as distinct from it being open for the court to draw a legal conclusion (a “standard, measure or capacity”) from statements. His Honour referred to a statement in Grey v Australian Motorists & General Insurance Co. Pty. Ltd. [1976] 1 NSWLR 669, at 684, cited in Jones v Sutherland Shire Council [1979] 2 NSWLR 206, at 231: “A party to litigation may make an admission, not only of a fact, but also a conclusion from facts, a mixture of fact and law, or even of law”.

23. [23]
    In Arnold Electrical and Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, the court considered which of two hire rates under a labour supply contract, the ‘construction rate’ or the ‘service rate’ (the latter being the lesser rate), applied. Fraser JA, with whom the President and Lyons J agreed, in the context of the sufficiency of evidence on a counterclaim relied on by one party to prove its case, wrote:

“The defendant’s counsel sought to overcome this difficulty by arguing that the defendant was entitled to rely upon a deemed admission under UCPR r166 that the service rate was the correct rate. It was contended that the plaintiff’s pleaded explanation for it’s denial of the defendant’s allegation that it overpaid the plaintiff (that it was not true) was insufficient. These submissions must be rejected. The rule is concerned with allegations of facts in pleadings. The allegation of an overpayment asserted a conclusion based on various matters that were not pleaded. The defendant’s counterclaim did not allege any of the facts (as to the nature of the work done by the apprentices and the terms of the award) required to support the conclusion (which was also not pleaded) that the service rate was applicable. Rule 166 cannot be called in aid of a claimant who fails to plead or prove the material facts required to support the claim” (my underlining).

The disputed pleadings

24. [24]
    In effect the plaintiff contends that the claim is admitted expressly, or by deemed admission particularly, in its entirety. The critical pleadings are those that are said to constitute deemed admissions:

• Defence paragraphs 2, 3, 6, 7, 8, 9, 11, 12(c), 13, 14, 15, 16, 18, 19, 20, 21, 22, 23 and 24, that respond to:

• Amended Statement of Claim paragraphs 2, 3(d), (h), (i), (j) and (k), 4, 5, 6, 8, 9(b), 10, 15, 16, 17(a), (c), (d), (e), (f), (g), (h), 18 and 19.

25. [25]
    I will illustrate the competing submissions by referring to the Amended Statement of Claim first and then the Defence and the Reply. The latter is referred to simply for completeness. The Amended Defence is ignored.

26. [26]
    The deemed admissions relied upon are as follows:

1. (a)
   Amended Statement of Claim paragraphs 2 and 3 (d), (h), (i), (j) and (k); Defence paragraphs 2 and 3; and Reply paragraph 2(a), (b), (c), (d) and (e):

1. (i)
   The Amended Statement of Claim alleges the agreement and gives particulars as to what documents (a letter and a MOU) constituted the full terms of the agreement (paragraph 2) and the material express terms (paragraph 3(d), (h), (i), (j) and (k)):

2. (ii)
   The Defence alleges that the full terms of the agreement are set out in the MOU (paragraph 2), denies allegations about bank signatories (paragraph 3(d)) and use of funds, profit distribution, payment for use of premises and work restraint (paragraphs 3 (h), (i), (j) and (k)) and denies the allegation about the letter;

3. (iii)
   In its Reply, the plaintiff says that the defendant did not give any proper or direct explanation for the defendant’s belief that the allegations were untrue: that is, the denials in the Defence, as required by the UCPR (paragraphs 2(a), (b), (c), (d) and (e)).

27. [27]
    Hence the defendant admitted an agreement but pleaded that the full terms of the agreement were set out in a MOU and not, in addition, in a letter as alleged by the plaintiff. The defendant submitted that that is an express denial with direct explanation, of the allegation in paragraph 2.

28. [28]
    With respect to paragraph 3 the defendant submitted that the allegations were mixed fact and law, that there can be no deemed admission and in respect of allegations of facts the pleading is compliant; and specifically no breach is pleaded in paragraph 3(j) and (k).

2. (b)
   Amended Statement of Claim paragraphs 4, 5 and 6; Defence paragraph 9; and Reply paragraph 2(f):

1. (i)
   The Amended Statement of Claim alleges that the agreement contained a number of implied terms relating to the defendant’s financial obligations and management (paragraphs 4 and 5) or alternatively  fiduciary duties owed by him (paragraph 6);

2. (ii)
   The Defence characterises those pleadings as legal conclusions (implied terms) and simply asserts that they “are wrong” (paragraph 9); and

3. (iii)
   In its Reply (paragraph 2 (f)) the plaintiff says the defendant did not respond to the allegations as required by the UCPR.

29. [29]
    The defendant submitted that the allegations in paragraphs 4 and 5 of the Amended statement of Claim were conclusions of law – implied terms and recitations of principle – without facts from which implications could be drawn and were matters for the court to determine and not matters for pleading.

30. [30]
    The defendant submitted that the allegation in paragraph 6 that he owed a fiduciary duty was a conclusion of law, unsupported by factual allegations other than the vague phrase “in the premises above”, and not a matter for pleading.

3. (c)
   Amended Statement of claim paragraphs 8 and 9; Defence paragraphs 11 and 12; and Reply paragraph 2(g), (h) and (i):

1. (i)
   The Amended Statement of Claim alleges that the plaintiff provided a sum of money as working capital (paragraph 8); and that it was not thereafter involved in the management or operation of ITS (paragraph (9);

2. (ii)
   The Defence asserts that the pleading (paragraph 8) by the plaintiff was embarrassing because the plaintiff could not lend money to itself (paragraph 11); or inconsistent in paragraph 9 with the plaintiff’s pleading in the Statement of Claim at paragraph 1(a)(ii) (which is expressly admitted by the defendant) and otherwise compliant (paragraph 12); and

3. (iii)
   In its Reply (paragraph 2) the plaintiff says that the defendant did not respond to the allegations in paragraph 8 as required by the UCPR; or did not give any proper or direct explanation for the defendant’s belief that the allegations paragraph 9 were untrue as required by the UCPR.

31. [31]
    The defendant in his submissions repeated the allegations in the defence.

4. (d)
   Amended Statement of Claim paragraphs 10, 15 and 16, Defence paragraphs 13, 14 and 15 and Reply paragraph 2(i) and (j):

1. (i)
   The Amended Statement of Claim refers to an oral request (paragraph 10); and to correspondence (paragraphs 15 and 16);

2. (ii)
   The Defence asserts that paragraph 10 is untrue (paragraph 13), that paragraph 15 is wrong (paragraph 14) and that the repudiation pleaded in paragraph 16 is denied (paragraph 15); and

3. (iii)
   In its Reply the plaintiff says that the defendant did not give any proper or direct explanation for the defendant’s belief that the allegations were untrue (paragraph 2 (i) and (j)).

32. [32]
    The defendant submitted that its pleading to the allegation in paragraph 10 that the plaintiff made an oral request for an account was untrue was compliant; that the allegation in paragraph 15 of conduct amounting to a repudiation of the agreement was an allegation of law and no deemed admission was made; and that the sending of the letter referred to in paragraph 16 – an allegation of fact – was admitted, but the meaning of the terms of the letter – breach of express or implied terms – was a matter of law and no deemed admission was made.

5. (e)
   Amended Statement of Claim paragraphs 17, 18 and 19; Defence paragraphs 17, 18 and 19; and Reply paragraphs 17, 18 and 19:

1. (i)
   The Amended Statement of Claim alleges breaches of express terms (paragraph 17(a)) and implied terms (paragraph 17(c), (d), (e), (f), (g) and (h)); characterise the breaches as constituting a breach of fiduciary duty (paragraph 18) and alleges loss and damages (paragraph 19);

2. (ii)
   The Defence asserts there is a denial of the breaches (paragraphs 17(a), (d) and (g) as alleged; or an allegation they are untrue (paragraph 17(c) and (h)); or as a matter of fact asserts admissions and denials (paragraphs 17, 18 and 19); or contends they are embarrassing and/or require further particulars (paragraph 17(e) and (f)); and

3. (iii)
   In its Reply the plaintiff asserts that the defendant’s pleadings are “untrue” (paragraphs 17(a), (c), (d), (g) and (h), 18 and 19) or that no further particulars have been sought (paragraph 17(e) and (f)).

33. [33]
    The defendant submitted that the allegations in paragraph 17 referred compendiously, in effect, to several types of conduct said to amount to a breach and that each fact relied on should have been pleaded; that a breach of the term referred to in paragraph 3 (i) is pleaded and that paragraph had already been put in issue in the Defence; that a direct explanation – an entitlement to a 50% profit share without authorisation is made; and that paragraph 17 (c) to (h) involved alleged implied terms, which were matters of law.

34. [34]
    With respect to paragraph 18 it was submitted that this was an allegation of a matter of law; and that paragraph 19 involved mixed allegations of fact and law and does not specify the amount of damages or a calculation.

Discussion

35. [35]
    I prefer the approach of Fraser JA in Arnold (supra) as to conclusions of law pleaded by the Plaintiff, even though his Honour was considering pleadings in a different context. The state of uncertainty expressed in the authorities leads me to conclude that the sensible approach is to consider a particular case on its own circumstances and the context in which allegations are made and the form of the specific pleading that is in issue. That is the approach I have adopted here. Pleading all material facts includes those facts from which inferences ought to be drawn to establish the pleaded allegation: Dominus Pty Ltd v Daydream Island Resort Investments Pty Ltd [2003] QSC 44 at [64]; and r150 (2) UCPR. Where allegations of law or conclusions of law are pleaded by the plaintiff, the requirement is to plead only to such part of a pleaded paragraph as contains an allegation of material fact that is the source of the conclusion. Where there is an allegation of mixed fact and law the requirement is the same. Where material facts are pleaded as particulars, there is no requirement to plead to them: Ballisteros v Chidlow (No 2) [2005] QSC 285 at [21]. However, particulars do not stand alone and customarily are pleaded by way of elucidation or description and follow a specific allegation of a material fact. Hence a pleading in response may, but not necessarily, need to be accompanied by further factual allegations in a Defence. Finally, I consider that the issue of whether a term should be implied in an agreement is an issue of law. Hence, where implied terms are pleaded there is no requirement to plead specifically to them in the Defence.

36. [36]
    Mr Martin’s submission that in respect of paragraph 17 of the Amended Statement of Claim the several allegations of fact compendiously said to amount to a breach of the agreement was an improper pleading has some support in the judgment of Wilson J in Cormie v Orchard [2001] QSC 021, albeit in the context of r 189 (notice to admit facts), where her Honour (at 6) considered that in an appropriate case facts can be ‘specified’ by reference to paragraphs in a pleading, but added the qualification that “this will not be appropriate where, for example, more than one fact is alleged in a single paragraph of a pleading or where there are mixed allegations of fact and law.”

37. [37]
    There is a mixture of responses in the Defence that require an assessment in one or several of those categories. In some cases the Defence contains allegations that are not in compliance with the UCPR. However, I do not agree that there is the broad non-compliance that the plaintiff contends. There is merit is some of the submissions of the defendant.

38. [38]
    There is also another matter: the Amended Statement of Claim significantly changes paragraph 1(a) (ii) to omit the relevant period and render the admission made by the defendant meaningless; and changes the “working capital” characterisation from a “loan” to a “deposit sum”, in several parts of the plaintiff’s pleading (for example, paragraph 3 (e)), thereby defeating the thrust of the Defence in that part of the pleading. It was open to the defendant to have pleaded to those allegations contained in the Amended Statement of Claim, because of that significant change. Arguably, he should have done so and in the time limited by the rules.

39. [39]
    I now turn to the specific paragraphs that are in dispute to determine whether any of them are deemed admissions.

• Paragraph 2: The Defence pleads a direct explanation. There is no deemed admission. There is no requirement to plead to the particulars.
• Paragraph 3 (d), (h), and (i): The Defence pleads a direct explanation. There is no deemed admission. Sub-paragraph (i) is to be read with sub-paragraph (a). Further with respect to sub-paragraph (d), the Amended Statement of Claim pleads a new allegation. See [40] infra.
• Paragraph 3 (j) and (k): There is no direct explanation, as conceded by the defendant. However, there is no breach pleaded.
• Paragraph 4: The allegations are of implied terms/conclusions of law.
• Paragraph 5: The allegations are of implied terms and recite the case law mantra.
• Paragraph 6: The allegations are not Material Facts (Fiduciary duties) and are conclusions of law.
• Paragraph 8:  The Defence pleads that the allegations are embarrassing and says why. However, the Amended Statement of Claim pleads a new allegation. See [40] infra.
• Paragraph 9 (b): The Defence pleaded an inconsistency with paragraph 1 (a) (ii). That has been cured in the Amended Statement of Claim but in the manner of a new allegation. See [40] infra.
• Paragraph 10: Whilst there is no direct explanation about the allegation of an ‘oral request’ per se, there is also no requirement to plead to particulars.
• Paragraphs 15 and 16: The allegations are conclusions of law and connected to the particulars in paragraph 16 – there is no requirement to plead to particulars.
• Paragraph 17 (a): The allegations are expressly admitted. There is no requirement to plead to particulars.
• Paragraph 17 (c) and (d): The allegations refer to implied terms and to particulars. There is no requirement to plead.
• Paragraph 17 (e) and (f): The Defence required further particulars of the allegations before pleading. See [41] infra.
• Paragraph 17 (g) and (h): The allegations refer to implied terms. There is no requirement to plead.
• Paragraph 18:  The allegations refer to conclusions of law and to particulars. There is no requirement to plead.
• Paragraph 19: A breach is denied but there is no loss pleaded. The allegation is therefore meaningless.

40. [40]
    The new allegations render some parts of the Defence a nullity. In my view the rules do not intend that a plaintiff may by changing its pleading in not insignificant ways should sideline the pleaded Defence, even though the defendant could and arguably should have amended his defence. I do not consider that the plaintiff should have the benefit of a deemed admission in such circumstance.

41. [41]
    Where a request has been made for further particulars the plaintiffs Reply simply states that no Request for further and better particulars has been made. I do not consider that this is a basis upon which a deemed admission can arise.

 The Amended Defence

42. [42]
    Rule 385 UCPR relevantly provides that a pleading to an amended pleading of the opposite party, “… 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.”

43. [43]
    The Reply and Answer was filed within 14 days of the filing of the defendant’s Amended Further Particulars of the Defence, on 06 December 2012 and the Amended Statement of Claim was filed on 07 December 2012 (r 169 (b) UCPR). However, an Amended Defence to the Amended Statement of Claim was filed on 16 April 2013 and after the Application was filed. Hence it was not served within the time required by r 385 UCPR. No leave was or has been sought to file the Amended Defence. It was not relied on in submissions. I have not considered this pleading.

The UCPR ‘mantra’ 

44. [44]
    In addition to the specific submissions characterising the disputed parts of the pleadings as deemed admissions, the plaintiff relied, in an holistic sense, on the overriding philosophy of the UCPR as expressed in r 5, which provides as follows:

“r 5 Philosophy – Overriding obligations of parties and courts

(1) the purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality in facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”

45. [45]
    The overriding philosophy, of course, applies equally to the pleading process as it does to other aspects of a proceeding. In Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455, at [21] de Jersey CJ wrote that the rules “cannot be approached on the basis that if important provisions are ignored, even if inadvertently … the court may be expected to act indulgently and rectify the omission. Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just.”

46. [46]
    His Honour in Robinson v Laws [2003] 1 Qd R 81, at [52], iterated that, in regard to what I have described as the fundamental function of pleadings, “… The system of pleading in this State is geared to early comprehensive disclosure of the case to be mounted by the plaintiff, and the response of the defence”; and at [53] that the rules “are premised on the need for that early, comprehensive definition of the case to be mounted, and that equally early responsive definition of the defence.”

47. [47]
    The critical word in those statements the context of a defence, is the word ‘responsive’. The plaintiff’s submission is that, in effect, the defendant has not complied with that requirement. The defendant’s assertions are to the contrary.

48. [48]
    However, as Chesterman JA wrote in Hanson Construction Materials P/L v Davey & Anor [2010] QCA 246, a case involving an application to withdraw deemed admissions, “It is no doubt true that the UCP Rules are meant to expedite litigation and to limit disputes to issues that are genuinely in contest, but it must, in my respectful opinion, remain the case that the rules do not operate so as to prevent the trial of issues that are genuinely in dispute.”

49. [49]
    I consider, for the reasons referred to in my recitation of the specific paragraphs under the heading Discussion (supra), that the Defence is substantially responsive and that there is plainly a genuine dispute that requires a trial.

Judgment on admissions or summary judgment

50. [50]
    There are two bases to the application: judgment on admissions (including deemed admissions) in the Defence; or summary judgment.

51. [51]
    Rule 190 UCPR relevantly provides as follows:

“r 190 Admissions

(1) If an admission is made by a party, whether in a pleading or otherwise after the start of the proceeding, the court may, on the application of another party, make an order to which the party applying is entitled on the admission.”

52. [52]
    I do not consider that the rule applies in the circumstances I have described. Where the pleading is arguably deficient I think that the proper course is to allow the defendant to further plead, whether in terms of the current form of Amended Defence or otherwise, if he elects so to do.

53. [53]
    Rule 292 UCPR provides as follows:

“r 292 Summary judgment for plaintiff

(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2) If the court is satisfied that -

(a) the defendant has no real prospect of successfully defending 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 plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

54. [54]
    The relevant principle is stated in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [17] and [44]: whether the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and there is no need for a trial of the claim or the part of the claim. I am satisfied that the defendant has a real prospect of success. Hence the proceeding must go to trial.  

Conclusion

55. [55]
    The application has substantially been unsuccessful. However, where I have indicated that the Defence is deficient I will allow the defendant to file and serve an Amended Defence.

Costs

56. [56]
    The plaintiff has been substantially unsuccessful. However, the defendant has been given the opportunity to amend his defence. In those circumstances the preferable course is to reserve the costs for the trial.

Orders

1. Application refused.

2. The defendant is to file and serve an Amended Defence within 14 days of the date of delivery of this judgment.

3. Costs of and incidental to the application are reserved.