Sweetman v Sovereign Realty Pty Ltd
[2016] QDC 284
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- Unreported Judgment
- Sweetman v Sovereign Realty Pty Ltd[2016] QDC 284
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Sweetman v Sovereign Realty Pty Ltd[2016] QDC 284
Sweetman v Sovereign Realty Pty Ltd[2016] QDC 284
DISTRICT COURT OF QUEENSLAND
CITATION: | Sweetman v Sovereign Realty Pty Ltd & Anor [2016] QDC 284 |
PARTIES: | KARA ELEN SWEETMAN (plaintiff/respondent) v SOVEREIGN REALTY PTY LTD (ACN 113 909 989) (first defendant/first applicant) ALEXANDER HAMID DARIUSH-FAR (second defendant/second applicant) |
FILE NO/S: | 123/15 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Southport |
DELIVERED ON: | 16 November 2016 |
DELIVERED AT: | Southport |
HEARING DATE: | 4 October 2016 |
JUDGE: | Kent QC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the plaintiff pleaded in her reply that there were deemed admissions of the defendants – where the defendants submitted there were no deemed admissions – where the defendants applied to strike out the paragraphs of the reply that alleged the deemed admissions – whether those paragraphs should be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the defendant sought summary judgment in respect of a certain part of the plaintiff’s claim – where the plaintiff indicated an intention to amend the pleadings to remove that portion of the claim – whether summary judgment should be granted in favour of the defendant in respect of that portion COURTS AND JUDGES – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – TO LOWER COURT – where the statement of claim will require substantial amendments – where, after the amendment, the quantum of the claim will be within the jurisdictional limit of the Magistrates Court – where the defendants’ filed application did not seek remittance of the claim – where the remittance was opposed by the plaintiff – whether the claim should be remitted to the Magistrates Court Uniform Civil Procedure Rules 1999 (Qld), r 165, r 166, r 168, r 169, r 171 Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2009] 1 Qd R 116; [2008] QSC 302, cited |
COUNSEL: | A James for the plaintiff/respondent M J Campbell for the defendants/applicants |
SOLICITORS: | ABKJ Lawyers for the plaintiff/respondent Affinity Lawyers for the defendants/applicants |
- [1]In this matter, the defendants apply: for orders that there be judgment in their favour for a sum of money representing certain parts of the claim; further or alternatively, some parts of the claim and statement of claim be struck out; and certain paragraphs of the plaintiff’s reply be struck out. These matters are said to arise pursuant to the operation of certain parts of the Uniform Civil Procedure Rules 1999 (Qld) (the ‘UCPR’).
The nature of the action
- [2]The plaintiff’s claim concerns the plaintiff’s previous employment with the first defendant as a real estate agent. The dispute is in the nature of unpaid commissions and the first defendant is said to owe money to the plaintiff for such commissions together with unpaid goods and services tax (‘GST’). The defence is: the plaintiff received advances on monies to which she was entitled; the taxation treatment of the payments negates the plaintiff’s claim; the plaintiff unlawfully misappropriated monies; and there is no money outstanding to the plaintiff.
This application
GST
- [3]Part of the plaintiff’s claim is for GST on commissions. It has emerged that the plaintiff’s registration for GST was cancelled for some of the period relating to the action and thus this claim is not maintainable. The defendant seeks summary judgment in respect of that part of the claim, but the plaintiff has already indicated an intention to amend the pleadings to remove the claim. In my view, that is the appropriate course and any costs implications thereof should be decided by the trial judge. Therefore, I dismiss the application for orders 1 and 2 in the application.
The reply
- [4]The pleadings consist of claim, statement of claim, defence and reply. The plaintiff pleads in her reply that the defendants have made deemed admissions in their defence pursuant to r 166 of the UCPR. The defendants submit that this is not the case and thus the relevant paragraphs of the reply should be struck out.
- [5]The defendants first submit that the reply was filed outside the 14 day period mandated by r 169. Thus, the pleadings were closed prior to the filing and service of the reply, and r 168 operates to render the allegations of fact in the defence the subject of non-admissions and r 165(2) then applies. That is, the deemed pleading of the non-admission would prevent the plaintiff giving or calling evidence in relation to such facts, unless the evidence relates to another part of the party’s pleading.
- [6]The defendant, however, concedes that the filing of the reply outside of the requisite time period has been deemed to simply be an irregularity curable upon application (although I am not aware of such an application having yet been made) and is unlikely to rectify any r 166 deficiency in a defence (should one exist), because it is a question of fact as to whether there has been compliance with the rules.
- [7]The defendant submits firstly that r 166(7) entitles a defendant to plead multiple denials in the same paragraph subject to the restriction, “if it is a specific denial of the allegation in response”. Rule 166(4) requires, where there is a denial or non-admission of an allegation of fact, a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted. The parties both refer to statements of principle as to the operation of these rules. The rationale for joinder of issue should be exposed;[1] a direct explanation for the belief is required.
- [8]In relation to the alleged deemed admissions listed in the reply, the defendants agree with respect to some of them, which are listed in the defendants’ outline of submissions. However, the balance of the allegations in the reply are contentious. It seems to me I should simply deal with them seriatum.
Paragraphs 2.2 and 2.3 of the reply
- [9]Paragraph 1.2 of the statement of claim pleads that the plaintiff held a real estate salesperson licence between 1 June 2013 and the date of filing of the proceedings, and that was further described as “the material time”. The relevant passage of the defence pleaded that the defendants were unable to admit the paragraph in question until further and better particulars of the “material time” were given, but otherwise admits the balance of the allegations. In my view, this amounts to an admission of paragraph 1.2. Nevertheless, paragraph 2 of the reply purports to rely on the definition of “material time” and pleads that, without a proper direct explanation for the non-admission, the defendants are taken to admit the allegation that the relevant period was “the material time”.
- [10]In my view, the phrase “the material time” in paragraph 1.2 of the statement of claim is not an allegation of fact, rather it is a descriptor of the time period. This is because the paragraph, standing alone, does not demonstrate any particular significance to the allegation of materiality to any other part of the factual matrix said to make up the elements of the statement of claim. Therefore, as it is not a proper reliance on r 166, paragraph 2 of the reply should be struck out. This leaves the allegation in paragraph 1.2 as a non-issue between the parties in the sense that the factual allegations are agreed. Whether the parties consider it productive to have some debate at the trial as to whether that time period was “material”, or material in what particular way, to what particular issue, they can nevertheless have such a debate if it is considered to be productive.
Paragraphs 3.2 – 3.4 of the reply
- [11]The next contentious paragraph of the statement of claim is paragraph 3. At 3.1, it pleads that during the material time the second defendant was a director and secretary of the first defendant. This seems to be admitted by the final words of paragraph 3 of the defence, and thus I would regard that allegation of fact as not being in issue between the parties. As to the broader allegation in paragraph 3.2, I do not regard paragraph 3.2 as being too ambiguous, containing a multiplicity of material facts and therefore to be embarrassing. Thus, in my view, paragraph 3.2 should have been pleaded to in the proper way. Therefore, in my view, paragraph 3 of the reply is correctly pleaded and paragraph 3 of the statement of claim is the subject of a deemed admission.
Paragraphs 5.3 and 5.4 of the reply
- [12]The next contentious paragraph of the reply is 5.3. In paragraphs 5.3 and 5.4, it is said that the defendant’s denial of allegations in paragraphs 11-13 of the statement of claim are not properly pleaded. This comes about because of paragraph 5 of the defence which denies paragraphs 6-13 of the statement of claim because “it” (presumably referring to the various allegations of fact therein) is untrue. Some further direct explanations are offered. The way the defence is pleaded is by no means clear.
- [13]My interpretation of it is that there is a denial that the previous employment agreement was terminated and the retention agreement was agreed as a replacement therefor. Rather, what is said in paragraph 5(f) of the defence is that the original employment contract was varied, and the terms of the variation are set out. To the extent these terms are inconsistent with the terms of the retention agreement pleaded in paragraph 13 of the statement of claim, I would regard the defence as a denial explained by the competing factual allegations. Thus, I do not regard the pleading in the reply that there has been a deemed admission as being correctly made out. However it would give greater clarity if the defence were amended to plead exactly what is denied and on what basis. Nevertheless, in the result I do not regard there as having been deemed admissions upon this topic and paragraphs 5.3 and 5.4 of the reply should be struck out.
Paragraphs 8.1 and 8.2 of the reply
- [14]In relation to paragraphs 8.1 and 8.2 of the reply, in my view it is not correct to say that the denials are not accompanied by a proper direct explanation for the relevant relief. What is pleaded at paragraph 8 of the defence is a competing version of the arrangements between the parties. It would be better if a more precise set of denials dealing with the plaintiff’s pleadings seriatim were provided, however I do not find the pleading so deficient as to amount to a deemed admission, so that paragraphs 8.1 and 8.2 of the reply are struck out.
Paragraphs 9.1 and 9.2 of the reply
- [15]In relation to paragraphs 9.1 and 9.2 of the reply, again in my view paragraph 9 of the defence sets up a competing factual version of the arrangements between the parties. In my view this is a proper direct explanation for the defendant’s belief that the allegations are untrue, although again it would be better if precise denials of the relevant matters in the statement of claim were given, and these could be given in an amended pleading. In the result there are no deemed admissions and paragraphs 9.1 and 9.2 are struck out.
Paragraphs 10.1 and 10.2 of the reply
- [16]In relation to paragraphs 10.1 and 10.2 of the reply, again a direct explanation is given and I do not agree that it is so deficient as to be not a proper direct explanation for relevant belief. Again, more specific denials of particular allegations in the statement of claim would be more desirable, and this could be achieved by amendment. However in the circumstances there are no deemed admissions and thus paragraphs 10.1 and 10.2 are struck out.
Balance of the reply
- [17]The same reasoning as in the preceding three paragraphs applies, with the same consequences, in respect of paragraphs 11.1 and 11.2, 12.1 and 12.2, 13.1 and 13.2 and 18.1 and 18.2 of the reply.
- [18]In relation to paragraph 18.5 of the reply, in my view it is correct to say that the denial in paragraph 18(e) of the fiduciary relationship concerning the second defendant is not properly explained. Therefore, in my view, this does presently amount to a deemed admission. It may be that if a proper explanation is forthcoming there may be an application to withdraw such an admission. I also note that subparagraphs (b) and (c) are missing from paragraph 18 of the defence.
- [19]The consequences of the orders made on this application will include amended pleadings and possibly applications to withdraw some deemed admissions. I would encourage the parties to attempt to resolve such further procedural matters by mutual agreement.
- [20]The defendant submits that, consequent upon the foreshadowed amendments, the claim will be within the monetary value of the Magistrates Court and thus should be remitted. This relief was not, however, expressly sought in the application and is resisted by the plaintiff, arguing that the position as to potential quantum or other relief is not so clear cut. In the result, I am inclined to refuse such an application. If the matter at trial results in a considerably lower judgment, the defendant’s remedy may be in the discretion as to costs.
- [21]In relation to costs of this application, as there has been mixed success on the application my present inclination is to make no order as to costs. However, I will hear argument or receive written submissions on this aspect if requested.
Footnotes
[1]Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2009] 1 Qd R 116 [26]-[31]; [2008] QSC 302 [26]-[31].