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- Unreported Judgment
Gladstone 1 Pty Ltd v Williams QDC 227
DISTRICT COURT OF QUEENSLAND
Williams & another v Gladstone 1 Pty Ltd & another  QDC 227
GLADSTONE 1 PTY LTD
5010 of 2014
District Court of Queensland
7 September 2016 – Ex Tempore
R S Jones DCJ
P C Hanlon for the applicant/defendant
OMB Solicitors for the applicant/defendant
- HIS HONOUR: I am concerned here with an application. The substantive relief as pleaded in the application was that, pursuant to rule 293 of the Uniform Civil Procedure rules a substantial number of paragraphs of the plaintiffs’ amended statement of claim should be struck out. It was stated in the application that as an alternative the whole of the amended statement of claim be struck out. As it evolved during submissions, and I agree, it was concluded that the most sensible course of action was that it was really an all or nothing situation. The applicant defendant also seeks their costs of and incidental to this application on an indemnity basis. I will deal with costs separately.
- The plaintiffs are Christopher Williams and Chanphen Williams and the defendant is Ozprop Gladstone 1 Proprietary Limited ACN 165 530 905, said to be the trustee for the Gladstone Shopping Centre trust. The plaintiffs’ claim against Ozprop Gladstone 1 Proprietary Limited, being file number 5010 of 2014, seeks relief in the following terms: damages in the amount of $424,050.05, further – or in the alternative, reasonable compensation for loss and damages suffered by the plaintiffs, (3) an injunction restraining the defendant from permitting a commercial meat distribution business at the property, (4) an injunction restraining the defendant from continuing to breach a covenant of quiet and peaceful enjoyment of the premises, interest, pursuant to section 58 of the Civil Proceedings Act, costs and other orders that the Court might consider appropriate.
- There is a history, a very unfortunate history – or background to this proceeding. At or about November 2013, proceedings were commenced by the plaintiffs against Gladstone 1 Proprietary Limited ACN 156 477 262 and one Huibert Van Seters and one Mike Ward. The file number of those proceedings was 4539 of 2013. On 22 September 2014, Judge McGill SC made the following orders: (1) pursuant to rule 293, judgment for the defendants against the plaintiffs in respect of the whole of the plaintiffs’ claim, (2) the plaintiffs pay the defendants’ cost of and incidental to the defendants’ application filed 11 September 2014 to be assessed on an indemnity basis, if not agreed between the parties, (3) additionally, the plaintiffs pay the defendants’ costs of an incidental to the proceeding to be assessed on a standard basis, in respect of the proceeding, if not agreed between the parties.
- Pursuant to an application filed 20 November 2014 in the same proceedings, 4539 of 2013, the plaintiffs sought to have those orders set aside. That application was heard by Judge Dorney QC on 3 December 2014 and his Honour dismissed the application. There, his Honour also ordered that the applicants’ solicitors, David McHenry and Associates, were to pay the cost of the respondents of an incidental to the application on an indemnity basis. His Honour made further orders that it is unnecessary to go into. The reference to Dave McHenry and Associates is of some significance in that the plaintiffs are suing Mr McHenry and his firm for, among other things no doubt, negligence and breach of contract.
- The next relevant step in the proceeding is that on 9 March 2015 another application was filed. The relief sought was that the plaintiffs be granted an order in the following terms:
That pursuant to section 300 of the Uniform Civil Procedure rules, a stay order be granted in favour of the plaintiffs, Christopher Williams and Chanphen Williams, in relation to all cost assessments and/or orders.
- That matter came before his Honour, Judge Farr SC, on 16 March 2015. Orders were made by consent on that day and that application was dismissed. Again, of some note, is the fact that his Honour made further orders to the effect that the applicants, the plaintiffs, and the applicants’ solicitor, Dave McHenry and Associates, were to pay the cost of the respondents of and incidental to the application on an indemnity basis. The quantum of which is to be agreed or, failing agreement, as assessed.
- By this time, the proceedings had been commenced involving Ozprop Gladstone 1 Proprietary Limited file number 5010 of 2014. That company is, of course, the applicant in this proceeding. The amended claim and statement of claim identifies Ozprop Gladstone 1 as being the defendant. However, in the statement of claim the defendant is identified as being a duly incorporated company capable of being sued and the trustee of the Gladstone Shopping Centre trust. Thereafter, however, reference is made continuously to a company which is identified as Gladstone #1 Pty Ltd, obviously a reference to Gladstone 1 Pty Ltd. At one stage, it seemed to be submitted by Mr Williams, the male plaintiff, that this pleading should be read as if the references to Gladstone #1 Pty Ltd were really referable to Ozprop Gladstone 1 Proprietary Limited. However, it is abundantly clear that that is not the case at all. In paragraph 3 of the amended statement of claim, it is pleaded as follows:
Gladstone #1 Pty Ltd (ACN 156 477 262)(“Gladstone #1”)
- By reference to that definition of Gladstone #1 Proprietary Limited, it is abundantly clear that it was a reference to that company which had been excused from the proceedings as early as the first orders made by Judge McGill and not against the named defendant and applicant before me. Indeed, Mr Williams admitted as much and acknowledged that the statement of claim needed to be repleaded, identifying what allegations are in fact intended to be made against Ozprop Gladstone. In other words, to establish a cause of action against that company. Indeed, in addition to accepting that the pleadings really made no material allegations against the defendant, Mr Williams also stated that the main area – by that I took to mean cause of action – that they intended to pursue against Ozprop Gladstone, perhaps not to be sold – perhaps not but the only the main cause of action against Ozprop was to be that described as the “lock out” issue.
- I will refer just briefly to the relevance of that. In the existing statement of claim, it is couched under various headings, “misleading or deceptive conduct”, “breach of implied provisions for compensation”, “covenant to provide quiet and peaceful enjoyment of the premises”, “works and fit out” and then “lock out”. The allegations concerning lock out are made, as I have already indicated, not against the applicant defendant here, but against Gladstone 1. But it is also of some significance that those allegations concerning lock out do not commence until page 9, paragraph 46 and continue until paragraph 53. So it can be seen that not only are the allegations being made against the incorrect defendant but also the substantive action against Ozprop Proprietary Limited will be materially less than that as presently pleaded. As I indicated earlier Mr Williams acknowledged that many, if not most, if not all, of the complaints made about the current pleadings were legitimate and agreed that they needed to be repleaded against the applicant. On the material before me, I consider that I have no real option other than to strike the statement of claim out in its entirety. That said, I propose to give liberty for the plaintiffs to file and serve a further amended statement of claim by 7th of October?
- RESPONDENT WILLIAMS: [indistinct] hospital.
- HIS HONOUR: 7 October.
- RESPONDENT WILLIAMS: Your Honour, I’ll be in hospital, your Honour. I have got a procedure that’s – that’s underway now.
- HIS HONOUR: Well
- RESPONDENT WILLIAMS: And it’ll go maybe from the 7 to the 14th. When I come out at the 14th.
- HIS HONOUR: It was you who said 30 days.
- RESPONDENT WILLIAMS: Yeah. But [indistinct] I just realised that it – if – to the 14th would – would be more acceptable. If
- HIS HONOUR: An extra week?
- RESPONDENT WILLIAMS: they allow that. Pardon?
- HIS HONOUR: Well, Mr Hanlon, 14th?
- RESPONDENT WILLIAMS: Yeah.
- MR HANLON: It’s a matter for your Honour how you deal with that.
- HIS HONOUR: Yes.
- RESPONDENT WILLIAMS: [indistinct] yeah. Thank you.
- HIS HONOUR: All right. By 14 October 2016.
- HIS HONOUR: All right. The next question I will deal with, then, is the question of costs. The applicant seeks its costs on an indemnity basis. Having regard, not only to the matters to which I have referred – namely, the hopeless state of the pleadings against the applicant – but also having regard to correspondence, to which I was taken, being correspondence as between the parties, which commenced in the affidavit of Mr Cameron Marshall, filed 17 August 2016. Commencing with exhibit CJN7 at page 115 onwards, I agree that it is appropriate to order costs on an indemnity basis. Accordingly, I order that the plaintiff respondent pay the defendants’ costs of and incidental to this application on an indemnity basis. However, I also order that the applicant defendants be restrained from seeking to enforce those orders before 14 October 2016, the same date.
- MR HANLON: Matter for your Honour.
- HIS HONOUR: By 14 October 2014 and having regard to the fact that Dave McHenry & Associates were still the solicitors on the record at the time this
- MR HANLON: Sorry, your Honour. Previously, we’ve submitted that, “Not to enforce for 30 days to allow,” – the intention was to allow the application by the Williams if they were minded to do so. So may that still be 30 days?
- HIS HONOUR: Thirty days. Yes.
- MR HANLON: Thank you, your Honour.
- HIS HONOUR: I was confusing the two. Having regard to the state of the pleadings and that Dave McHenry & Associates were the solicitors on the record at the time, I propose to make a further order in these terms: that the plaintiffs have liberty to file and serve an application seeking orders that Dave McHenry & Associates Solicitors be required to indemnify the plaintiffs in respect of the cost orders I have made against them today. And I further order that the solicitors for the applicant defendant be restrained from seeking to enforce any cost orders made today for a period of 30 days from today’s date, being 7 September 2016.
- Published Case Name:
Gladstone 1 Pty Ltd v Cristopher Williams & Anor
- Shortened Case Name:
Gladstone 1 Pty Ltd v Williams
 QDC 227
07 Sep 2016