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Freibergs v Countryside Realty Noosa Pty Ltd[2021] QDC 110

Freibergs v Countryside Realty Noosa Pty Ltd[2021] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

Freibergs & Anor v Countryside Realty Noosa Pty Ltd & Ors [2021] QDC 110

PARTIES:

JASON FREIBERGS

(First Plaintiff)

BONNIE ROBINA FREIBERGS

(Second Plaintiff)

v

COUNTRYSIDE REALTY NOOSA PTY LTD (ABN 22 102 442 535)

(Defendant)

and

ALLENDEN PTY LTD T/AS BPI SUNSHINE COAST (ABN 83 110 966 946)

(First Third Party)

and

GRAHAM HIATT

(Second Third Party)

FILE NO:

D37/2020

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Maroochydore

HEARING DATE:

10 June 2021

JUDGE:

Long SC DCJ

ORDER:

  1. (1)
    Pursuant to rule 69(2)(b)(ii) of the Uniform Civil Procedure Rules 1999 (Qld), Allenden Pty Ltd t/as BPI Sunshine Coast North ABN 83 110 966 946 be added as Second Defendant to the proceeding.
  2. (2)
    Pursuant to rule 377(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld), the First and Second Plaintiff have leave to amend their claim to include their claims against Allenden Pty Ltd t/as BPI Sunshine Coast North ABN 83 110 966 946 and to include further and better particulars.
  3. (3)
    It is directed that as soon as is practicable, the Plaintiffs are to file the original affidavit of Jason Freibergs, affirmed on 9 June 2021.
  4. (4)
    The costs of the application are reserved.

CATCHWORDS:

APPLICATION – PRACTICE AND PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – JOINDER OF PARTIES – where the plaintiffs have applied to join the first third party as  second defendant to the proceedings – where no material has been filed for any respondent – whether the first third party should also be joined to the proceeding as a second defendant

APPLICATION – PRACTICE AND PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – PLEADINGS – PARTICULARS – FURTHER AND BETTER – where the plaintiffs have applied to include further and better particulars to the claim – where no material has been filed for any respondent –  whether the plaintiffs should be granted leave include further and better particulars of the claim

LEGISLATION:

Australian Competition and Consumer Act 2010 (Cth)

Law Reform Act 1995 (Qld), s 6

Uniform Civil Procedure Rules 1999 (Qld), rr 69, 192, 208, 377, 490, 492, 494

CASES:

Australia Pacific Investments (Qld) P/L and Anor v Najibi General Trading Company LLC & Ors [2020] QSC 173

Courtney v Pinnacle Media Group Ltd & Ors [2020] QSC 50

MAM Mortgages Ltd (in LIQ) & Anor v Cameron Bros and Ors; Piesse Investments P/L v WR Mortgage Services P/L & Ors [2002] QCA 330

Stacks Managed Investments Limited v Tolteca Pty Ltd; Tolteca Pty Ltd v Lillas and Loel Lawyers Pty Ltd [2015] QSC 80

SOLICITORS:

Plaintiffs self-represented on application heard on the papers

No material filed for any respondent

  1. [1]
    By claim and statement of claim filed on 11 March 2020, the Plaintiffs claim damages in the sum of $386,821.16 and costs from the Defendant on the bases of engagement in unconscionable, unreasonable, deceptive and misleading conduct, actionable as breaches of provisions of the Australian Competition and Consumer Act 2010 (Cth) and there is also reference to alleged breaches of the Property Occupations Act 2014 (Qld).
  2. [2]
    Broadly speaking and underlying the claim are contentions that as the vendor’s real estate agent in respect of the sale of a residential property to the Plaintiffs, the Defendant had:
    1. (a)
      knowledge of an earlier termination of a contract for the sale of the property due to an adverse building and pest inspection indicating the active presence of termites and associated structural damage; and
    2. (b)
      failed to disclose those circumstances and otherwise made representations in the marketing of the property and to the Plaintiffs and upon which the Plaintiffs relied, as to the condition of the property.

Accordingly and as referred to in some of the materials, the Plaintiffs’ claim against the Defendant may be simply referred to as one for damages upon the basis of misleading and deceptive conduct.

  1. [3]
    Before turning to the Plaintiffs’ application which is now before the Court, it is convenient to note the following further history of the proceedings:
    1. (a)
      On 7 April 2020 the Defendant filed a notice of intention to defend and defence and on 20 April 2020 the Plaintiffs filed a response, or reply, to that defence.
    2. (b)
      On 1 May 2020 the Defendant filed a third party notice and third party statement of claim, directed to:
      1. Allenden Pty Ltd t/as BPI Sunshine Coast, as the First Third Party;
      2. Graham Hiatt, as the Second Third Party; and
      3. By the Rules Conveyancing Pty Ltd, as the Third Third Party.
    3. (c)
      Although it will be necessary to return to the third party notice which is directed at the First Third Party, for present purposes it may be noted that a basis of that notification is that the First Third Party was engaged by the Plaintiffs to conduct the building and pest inspection of the property for the purpose of the satisfaction of the term of their contract for the purchase of the property which allowed them to terminate in the absence of a satisfactory building and pest inspection.  On 29 June 2020, the First Third Party filed a notice of intention to defend and defence to the third party claim and on 20 July 2020, the Defendant filed a reply to that defence.
    4. (d)
      The claim made against the Second Third Party, the vendor of the property, seeks to enforce an indemnity arising from his contract with the real estate agents.  On 4 August 2020 the Second Third Defendant filed a notice of intention to defend and defence and an amended notice of intention to defend and amended defence on 13 August 2020.  On 2 September 2020 the Defendant filed a reply to the amended defence of the Second Third Party.
    5. (e)
      On 26 August 2020, the Defendant filed an amended third party statement of claim and on 4 January 2021 a further amended third party statement of claim, each containing amendments only in respect of the third party statement of claim directed at the Third Third Party.  That aspect of the third party statement of claim was directed at the conveyancer engaged by the Plaintiffs to act on their behalf in the purchase of the property from the Second Third Party.  By application filed on 23 February 2021 and adjourned, by consent to a date to be fixed, upon return on 13 April 2021, the Third Third Party sought various relief including that the third party notice against it be set aside or struck out, and on 28 May 2021, the Defendant filed a notice of discontinuance of its claim against the Third Third Party, which contains the consent of each of the Plaintiffs and Third Parties to that discontinuance.  It is therefore unnecessary to further dwell on the basis of that discontinued claim.
  2. [4]
    The Plaintiffs’ application filed on 13 May 2021 is for orders that:
  1. The First Third Party be joined as Second Defendant to the proceeding, pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (“UCPR”);[1]
  2. Leave to amend the claim filed 11 March 2020 pursuant to UCPR r 377 to:
  1. “(a)
    include further and better particulars of its claim; and
  2. (b)
    include Allenden Pty Ltd t/as BPI Sunshine Coast ABN 83 110 966 946 as Second Defendant in the Proceeding.”;[2]
  1. The costs of the application be reserved.

That application also contains a notice proposing the hearing of the application without oral hearing, on the return date: 10 June 2021.  The material identified as being relied upon by the applicants is the affidavit of Jason Freibergs, filed on 13 May 2021. 

  1. [5]
    In the circumstances and for the reasons to follow, it is appropriate to proceed to hear and determine this matter without an oral hearing, pursuant to the provisions of Chapter 13, Part 6 of the UCPR.  In particular:
    1. (a)
      There has been compliance with UCPR r 490(1) and (2);[3] and
    2. (b)
      No respondent has, under UCPR r 494, notified of any requirement of an oral hearing, nor provided any response pursuant to UCPR 492. 
  2. [6]
    Accordingly, what follows are the reasons for the orders made upon hearing this application on the papers, on 10 June 2021.
  3. [7]
    In addition to what has been noted as to compliance with UCPR r 490(1) and (2), on the evening of 9 June 2021, Mr Freibergs sent an email to the registrar and the solicitors for each of the Defendant and the Third Parties, drawing attention to the recent notice of discontinuance against the Third Third Party and attaching a copy of a further affidavit, affirmed by him on 9 June 2021.  The purposes of that affidavit may be noted to be to:
    1. (a)
      Exhibit correspondence received from the solicitors for the First Third Party, in acknowledgement of service of the application and supporting documents, indicating their instructions not to oppose the application (but pointing out a correction to the correct trading name of their client) and otherwise noting that the application was to be decided without an oral hearing and their instructions to not make any submission or present evidence to the Court, and that there was no objection “to your reliance on this letter as to our clients’ position should you wish to”[4]; and
    2. (b)
      provide revised proposals as to an amended claim and statement of claim, so as to reflect the corrected trading name of the First Third Party and to make correct references to “the Third Third Party” to “By The Rules Conveyancing Pty Ltd”.[5] 

In these circumstances, it is appropriate to grant leave to read and file this further affidavit on this hearing on the papers (with a direction that the original affidavit is to be filed as soon as is practicable). 

  1. [8]
    Therefore the question before the Court, in the context of the expressed lack of opposition of the First Third Party, is whether the Plaintiffs should be allowed to add that party as a defendant, so as to enable the Plaintiffs the prospect of recovery against that party for a causes of action based in negligence and breach of the Australian Consumer Law, in respect of the building and pest inspection which it was engaged to perform for the Plaintiffs.
  2. [9]
    No issue appears to arise under UCPR r 69(2) and the broader ambit of UCPR r 69(1)(b)(ii), in comparison to subparagraph (i), has been previously noted.[6] Although this application comes relatively late and at a point where the pleadings are effectively now closed, as far as the remaining existing parties are concerned, it does have the virtue of the “desirability of avoiding multiple proceedings, excessive costs and the possibility of divergent findings in separate proceedings traversing the same subject matter.”[7] And in that way, engaging the purposes of the UCPR in facilitation of the just and expeditious resolution of the real issues, at a minimum of expense and avoidance of undue delay, expense and technicality.[8]
  3. [10]
    In this instance and although there would be the introduction of new pleadings as between the existing Plaintiffs and the First Third Party, it is not a matter of introduction of any entirely new claim or issues. This is because a basis of the third party notice directed at the First Third Party, presumably pursuant to UCPR r 192(b) and s 6(c) of the Law Reform Act 1995, is in claiming contribution in the event that the Plaintiffs establish loss as pleaded against the Defendant, on the basis of the negligence of the First Third Party in the building and pest inspection it was contracted to perform for the Plaintiffs.
  4. [11]
    Accordingly, there is some obvious merit in the contention that particular weight may be given to the utility of allowing the Plaintiffs to belatedly make the same claim against the Defendant who has already positively alleged that claim against the First Third Party and which may also be seen to be the effective basis of the proposed claim under the Australian Consumer Law. That is, the provision of the contracted services without “due care and skill”.
  5. [12]
    However, it is not necessarily, as the Plaintiffs appear to approach it in the proposed amended claim and statement of claim, a matter of conversion of the status of the First Third Party to Second Defendant. The Plaintiffs’ application is to add a party as a defendant to their claim. And it may be observed that in the third party proceedings against the First Third Party, that claim is not limited to one based upon contribution of tortfeasors but would appear to extend to one based upon breach of duty of care owed by the First Third Party to the Defendant.[9] Whilst it may remain to be seen whether there is persistence with any issue other than contribution as between tortfeasors, joint or otherwise, it would appear to remain appropriate that whilst the First Third Party may be added as the Second Defendant to these proceedings, it will also remain as the First Third Party.[10]
  6. [13]
    Otherwise, the Plaintiffs only require, as is part of their application, leave pursuant to UCPR r 377 to amend their claim filed on 11 March 2020. In addition to the inclusion of the First Third Party as Second Defendant in the proceedings and the inclusion of the claims made against that Defendant, leave is also sought to include further and better particulars of the claim, to particularise the claimed damages in the increased sum of $429,214.61. In the absence of any opportunity being taken by any interested respondent to raise any objection, it is appropriate, in the circumstances for such leave to be granted to the Plaintiffs.

Footnotes

[1]Although reference is made to UCPR r 69(2)(b)(ii), it is otherwise apparent that the application is in reference to UCPR r 69(1)(b)(ii).

[2]Plaintiff’s application filed 13/05/21, at [2].

[3]In addition to the materials in the affidavit of J Freibergs filed 13/4/21, addressing what is proposed as to amendment of both the claim and statement of claim filed by the Plaintiffs on 11/3/20, a further affidavit of J Freibergs was filed on 25/5/21, in respect of service of the application, his earlier affidavit and the Plaintiffs’ outline of submissions (also filed on 13/5/21), by mail and email sent to the solicitors on the record for each of the Third Parties and the Defendant, on 18/5/21. 

[4]Exhibit JF-7 in the Affidavit of J Freibergs affirmed on 9/6/21.

[5]Exhibit JF-8 in the Affidavit of J Freibergs affirmed on 9/6/21.

[6]MAM Mortgages Ltd (in LIQ) & Anor v Cameron Bros and Ors; Piesse Investments P/L v WR Mortgage Services P/L & Ors [2002] QCA 330 at [27] and Australia Pacific Investments (Qld) P/L and Anor v Najibi General Trading Company LLC & Ors [2020] QSC 173 at [27].

[7]Stacks Managed Investments Limited v Tolteca Pty Ltd; Tolteca Pty Ltd v Lillas and Loel Lawyers Pty Ltd [2015] QSC 80, at [22] and Australia Pacific Investments (Qld) P/L and Anor v Najibi General Trading Company LLC & Ors [2020] QSC 173 at [39]-[46].

[8]See UCPR r 5 and Courtney v Pinnacle Media Group Ltd & Ors [2020] QSC 50 at [62].

[9]Third party notice, filed 1/5/20, at [1] and [2(a)] and third party statement of claim, filed 1/5/20, at [6] and [11(c),(e),(f)].

[10]In any event, the third party notice may effectively serve as a notice of contribution pursuant to UCPR r 208.

Close

Editorial Notes

  • Published Case Name:

    Freibergs & Anor v Countryside Realty Noosa Pty Ltd & Ors

  • Shortened Case Name:

    Freibergs v Countryside Realty Noosa Pty Ltd

  • MNC:

    [2021] QDC 110

  • Court:

    QDC

  • Judge(s):

    Long SC DCJ

  • Date:

    10 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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