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Petersen v Corby[2014] QDC 177



Petersen v Corby [2014] QDC 177














Toowoomba District Court


26 August 2014




15 August 2014


Reid DCJ


Judgement for the plaintiff for the sum of $301,837.01


Deemed admissions or deemed non-admissions – effect of delivering a Further Amended Statement of Claim

Uniform Civil Procedure Rules 1999 rr. 168, 169 and 385.


Peter Travis for the plaintiffs

Defendant appeared in person


Aden Lawyers Pty Ltd for the plaintiffs

  1. [1]
    In this action the plaintiff seeks damages for breach of a contract for the sale of a residential property at Mt Kynoch to the defendant.
  1. [2]
    The trial was unusual in that all, or almost all, of the facts alleged in the Further Amended Statement of Claim were either admitted in the defendant’s Defence or are said by the plaintiff’s counsel to be deemed to be admitted pursuant to r 166 of the Uniform Civil Procedure Rules (UCPR) or had been traversed in a Notice to Admit Facts served on the defendant shortly after filing of the notice on 23 June 2014. Such service was admitted by the defendant during discussions with me at the commencement of the trial. He has not disputed any of the facts set out in that notice.
  1. [3]
    At the conclusion of the trial I raised with the parties whether facts newly alleged in a Further Amended Statement of Claim, and not alleged in the Statement of Claim, were “taken to be admitted” by the defendant pursuant to r 166 of the Uniform Civil Procedure Rules as the plaintiff’s counsel contended, because the defendant was required to plead to the Further Amended Statement of Claim but did not do so, or whether r 168 applied because of the filing and service of the Further Amended Statement of Claim in October last year, well after the Defence and Reply had been served but before the Request for Trial Date.
  1. [4]
    Rule 168(1) provides:

“Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a non admission and r 165(2) then applies.”

  1. [5]
    Rule 169 provides:

“The pleadings in a proceeding close –

  1. (1)
    if a pleading is served after the defence or answer to a counter-claim – on service of the pleading; or
  1. (2)
    otherwise – 14 days after service of the defence.”
  1. [6]
    If in this case the filing and service of the Further Amended Statement of Claim, filed after the pleadings had initially closed on service of the Plaintiff’s Reply in 2012, meant that the close of pleadings was altered to take effect on service of that further amended pleading, then pursuant to r. 168 allegations of fact in that amended pleading would be deemed non-admissions, rather than deemed admissions.
  1. [7]
    Ultimately I think the answer to that questions lies in consideration of r 385 of the UCPR which provides:
  1. “(1)
    If a party amends a pleading, another party may plead to the amended pleading or amend the opposite party’s own pleading.
  1. (2)
    The pleading or amendment must be served within the time the opposite party then has to plead, or within eight days after the day of being served with the amendment, whichever is the later.
  1. (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 sub-rule (2), the opposite party is taken to rely on the original pleading as an answer to the emended pleading.”
  1. [8]
    The effect of that rule is that the defendant is taken to rely on his original defence as an answer to the amended pleading. Because in that defence the new allegations contained in the Further Amended Statement of Claim are not denied or stated to be not admitted (since they were not then alleged) they are, pursuant to r 166(1)(a), taken to be admitted.
  1. [9]
    In my view it is unnecessary to traverse a consideration of the pleadings and Notice to Admit Facts. A schedule to the plaintiff’s counsel submissions properly sets out matters admitted or deemed admitted by reference to the pleadings or admitted by the defendant’s failure to respond to the Notice to Admit Facts. I accept that in essence all of the allegations in the Further Amended Statement of Claim are either expressly admitted or deemed admitted.
  1. [10]
    In particular the defendant is deemed to have admitted paragraphs 11 and 12 of the Further Amended Statement of Claim which alleges:

“11. As a consequence of the Defendant’s breach of the Agreement the Plaintiff is entitled to damages in the amount of $310,152 (as of 15 October 2013).

  1. The plaintiff’s damages at paragraph 11, above, comprise:
  1. (a)
    The difference between the Purchase Price under the Agreement and the price for which the Property was sold by the Plaintiff on 20 August 2013, being $145, 000 (the Shortfall);


  1. (b)
    Interest from 17 October 2011 to 20 August 2013 on the unpaid purchase price of $595,000 at the ‘Default Interest Rate’ under the Agreement, which is determined by reference to the contract rate published by the Queensland Law Society, and which totals $120,788.26;


  1. (c)
    Interest from 21 August 2013 through to judgment on the Shortfall at the ‘Default Interest Rate’ under the Agreement, which amount totals $9250.21 as of 15 October 2013;


  1. (d)
    Selling agent’s commission of $16,857.50 owed to the selling agent who introduced the Defendant;


  1. (e)
    Holding costs, comprising:
  1. (i)
    Amounts paid by the Plaintiffs to reside at new premises pending sale of the Property: $31,080 (84 weeks at rent of $370 per week);
  1. (ii)
    Rates paid on the Property: $4,334.50
  1. (iii)
    Hot water unit installed at the Property: $1,947;


  1. (f)
    Amounts earned by the Plaintiff from renting the Property pending its sale: $18,358.94;


  1. (g)
    Amounts paid by buyer of the Property to the Plaintiff for rates upon settlement: $746.50.”
  1. [11]
    The female plaintiff gave evidence before me. Her evidence was of the Defendant’s breach, the attempts she and her husband made to effect the subsequent sale of the property, its eventual sale for $450,000 and the fact of their renting the property they had intended to buy, a step taken whilst they attempted to achieve a resolution of the impasse they had with the defendant. Ultimately they were unable to buy that property. Her evidence was unchallenged by the defendant, who appeared in person. I accept her evidence and accept the plaintiff’s counsel’s submissions that the plaintiff is entitled to judgement in the sum of $301,837.01.
  1. [12]
    This figure is calculated as per paragraph 12 of the Further Amended Statement of Claim (set out above), but;
  1. (a)
    The interest rate claimed has been reduced from the default interest rate under the agreement to 10% simple interest, with the consequence that the sum claimed under subparagraph (b) of paragraph 12 is reduced to $109,708.22 and interest under subparagraph (c), calculated to 15 August 2014, is then $15,056.16;
  1. (b)
    Selling agents commission is reduced to $13,345.00, rather than the higher figure claimed in subparagraph (d) which was calculated on commission on the original sale price of $595,000 rather than the sale price of $450,000 for which it was eventually sold;
  1. (c)
    The amount claimed for rates was increased to $4,806.07 to reflect rates paid between August 2013 and the date of judgement.
  1. [13]
    In the circumstances I give judgement for the plaintiff in the sum of $301,837.01. I will hear argument as to costs.

Editorial Notes

  • Published Case Name:

    Tanya Gay Petersen and Stephen Heath Petersen v Gregory Thomas Corby

  • Shortened Case Name:

    Petersen v Corby

  • MNC:

    [2014] QDC 177

  • Court:


  • Judge(s):

    Reid DCJ

  • Date:

    26 Aug 2014

Appeal Status

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