Prosser v Lifetime International.com Pty Ltd
[2024] QDC 193
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- Unreported Judgment
- Prosser v Lifetime International.com Pty Ltd[2024] QDC 193
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Prosser v Lifetime International.com Pty Ltd[2024] QDC 193
Prosser v Lifetime International.com Pty Ltd[2024] QDC 193
DISTRICT COURT OF QUEENSLAND
CITATION: | Prosser v Lifetime International.com Pty Ltd [2024] QDC 193 |
PARTIES: | Alicia Maree Prosser as Trustee for Prosser Family Trust (Plaintiff/Applicant) v Lifetime International.com Pty Ltd ACN 080 098 120 (Defendant/Respondent) |
FILE NO: | 1775 of 2024 |
DIVISION: | Civil |
PROCEEDING: | Application for Summary Judgment. |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 11 November 2024. |
DELIVERED AT: | Bundaberg. |
HEARING DATE: | 29 October 2024. |
JUDGE: | Byrne KC DCJ |
ORDERS:[1] |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF – where the plaintiff seeks summary judgment pursuant to r. 292 of the Uniform Civil Procedure Rules 1999 in respect of a claim for damages for breach of contract – where the claim for damages relates to the make good costs, loss of bargain and legal costs – where the defendant admitted to the breach of contract but disputes the quantum of each of the pleaded heads of damage – whether parts of the pleaded Defence amount to an admission of the quantum of any of the pleaded heads of damage – whether the defendant has any real prospect of defending the quantum of damages claimed for any or all of the pleaded heads of damage – whether there is a need for a trial for any or all of the pleaded heads of damage. |
LEGISLATION: | Property Law Act 1974 (Qld) s. 112. Uniform Civil Procedure Rules 1999 (Qld) rr. 165, 166, 292. |
CASES: | Coldham-Fussell v Commissioner of Taxation [2011] QCA 45. Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314. Queensland Pork Pty Ltd v Lott [2003] QCA 271. RB Lease Pty Ltd v Heron [2013] QCA 181. Salcedo v Deputy Commissioner of Taxation [2005] 2 Qd R 232. |
COUNSEL: | Ms. S. Long for the plaintiff/applicant. Mr. D Payard for the defendant/respondent. |
SOLICITORS: | Robinson Locke Litigation Lawyers for the plaintiff/applicant. Dentons for the defendant/respondent. |
Background and outline of issues
- [1]On 28 June 2024 the plaintiff commenced proceedings seeking damages for breach of contract pursuant to a lease. The statement of claim pleaded three heads of damage, namely damages relating to the make good costs of putting the premises into the condition as was required under the lease on termination, damages for loss of bargain and damages relating to legal costs.
- [2]On 30 July 2024 a Defence was filed. The Defence was curiously drafted in some respects, but the defendant accepts that it admitted the breach of the lease. Although there is some argument about this, the defendant submits that it put the quantum of each of the pleaded heads of damage in issue.
- [3]A Reply was filed on 26 August 2024. Four weeks later, on 23 September 2024, the plaintiff applied for summary judgment pursuant to r. 292 of the Uniform Civil Procedure Rules 1999. Five weeks later again, that application was heard.
- [4]The essential test on the application is not in dispute; can the applicant demonstrate both that the defendant has no real, as opposed to a fanciful, prospect of defending all or part of the claim and that there is no need for a trial.[2]
- [5]In that context, it must be recalled that the exercise of the power to enter summary judgment deprives a party of the opportunity to have their rights considered in the usual manner, including the potential advantage of disclosure. As such, the power should not be exercised lightly and should be reserved for those “cases that are not fit for trial at all”.[3] While the onus of proof always remains with the applicant, an evidentiary onus may be borne by the respondent where the applicant establishes a prima facie case.[4] While it will not always be necessary for the respondent to put on all its evidence in response to the application, it will be necessary to point to what can be produced. A future intention to see if more evidence is available is not enough.[5]
- [6]The issues raised in this application are:
- Do parts of the pleaded Defence amount to an implied admission to the quantum of any of the heads of damage claimed?
- Does the defendant have a real prospect of defending the quantum of damages claimed for any or all of the pleaded heads of damage?
- Is there a need for a trial in respect of any or all of the pleaded heads of damage?
- [7]The first identified issue can be conveniently considered in conjunction with the second issue, when considering each of the pleaded heads of damage.
The make good costs.
- [8]The lease provided, in effect, that on termination of the tenancy the premises were to be stripped back to an empty shell, with all services, air conditioning equipment and fire protection systems returned to their state upon occupation and mechanical and electrical systems reinstated. That did not occur. The plaintiff claimed $354,524.80 under this head of damage and exhibited a quote to that effect to an affidavit filed with the present application, which must have been earlier provided to the defendant. The quote and affidavit are contradictory on their face as to whether that is inclusive or exclusive of GST.
- [9]The plaintiff asserts that the Defence on this topic amounts to an implied admission. I do not agree. While it is not well-pleaded, it takes issue with the method of calculation of the damages and the quantum claimed, and asserts that parts of the plaintiff’s quote are outside the scope of the contractual obligation concerning the make good costs. It also raises the applicability of s. 112 of the Property Law Act 1974, although it misstates the effect of that provision.
- [10]Although there is merit in the plaintiff’s complaint about the pleading concerning the scope of the plaintiff’s quote for the make good costs, the pleading is otherwise sufficient to amount to a direct denial for the purposes of r. 166 of the UCPR. It is also notable that the plaintiff elected to deny the factual assertion in her Reply, rather than noting a failure to deny or asserting that it amounts to a deemed admission, as she has done elsewhere in the document. This put the defendant’s factual assertion in issue.
- [11]For the purposes of the application, the defendant has exhibited a quote for the make good costs of $219,667.88 + GST. While the plaintiff’s primary submission is that summary judgment should be entered for the higher amount, she alternatively submits that it should be entered for the lower amount on which the defendant relies. She submits that “the parties can then deal with (the balance of the claim on this head of damage) down the track once all of these other steps have been taken”. If that is meant to refer to further enforcing the balance of this claimed head of damages in these proceedings, there may be difficulties once the doctrine of merger in judgment is considered. However, that is not an issue I need determine given the view I have otherwise taken.
- [12]The defendant accepts that its quote is not detailed and does not amount to an expert opinion. It is however argued that it is sufficient to show that there are real prosects of defending this aspect of the quantum claim, and that it should not be taken as being an acceptance that it has no prospects of defending a claim in that amount.
- [13]I agree. Neither quote is detailed and neither amounts to expert evidence, but they are sufficient for present purposes. While there are criticisms going to weight to be made of each, the defendant’s is not wrong on its face. On the contrary, there are issues about the meaning of the plaintiff’s given the variance concerning the GST. Further, the defendant;s quote is in summary form and cannot be taken to be an absolute lowest limit. The disparity between the two quotes demonstrates that the defendant does have real prospects of defending the quantum sought. On the defendant’s pleadings, some damages are justified but in my view the quantum should be ascertained in the usual course, including after the obtaining and discovery of expert reports.
- [14]That conclusion means that arguments about the applicability of s. 112 of the Property Law Act need not be considered. However, I note that the plaintiff in her Reply put in issue as a matter of fact that the claim exceeds the diminution of value of the subject property. It is desirable that the defendant can obtain the appropriate evidence, both through discovery and expert reports. While there has been enough time for the latter, discovery has been stayed pending the resolution of this application.
- [15]The application, in so far as it relates to the make good costs, must fail.
Damages for loss of bargain.
- [16]The subject property was sold at auction on 6 September 2024, with settlement on 6 December 2024. This has had the effect of the plaintiff limiting her claim for damages for loss of bargain to loss of rental income between the termination and the settlement.
- [17]The defendant paid rent to 30 May 2024 at the rate of $18,000 + GST per month, so the plaintiff now claims 6 months lost rent totalling $108,000 + GST, resulting in an overall total of $118,800. The plaintiff relies both on what it says is an inevitable fact that it will not be rented before settlement and two short form opinions that the premises could reasonably be expected to remain unoccupied for 6-9 months if attempts were made to re-let them.
- [18]The first short form opinion comes from the plaintiff’s own husband. He cannot be said to be independent, but he does have sufficient qualifications to give an opinion of that nature. It is sufficient for the purposes of this application. The second from a letting agent. Objection was taken to the admissibility of that opinion. It was ruled to be admissible but the weight to be given to it was found to be slight given issues with the limited exposure of the basis for the opinion offered. Nonetheless it is consistent with Mr Prosser’s opinion, which was not the subject of objection.
- [19]In its Defence, the defendant pleaded a denial and said the plaintiff’s pleading as to the time period was excessive, but did not state why. In those circumstances the plaintiff, in her Reply, asserted that it amounted to a deemed admission. I agree. The observations in Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd[6] are apposite. The bland denial did not comply with r. 166(4) of the UCPR, thereby triggering the deeming effect of r. 166(5).
- [20]Further, there is no evidence from the defendant on the application to cast doubt on the accuracy of the short form opinion put into evidence by the plaintiff. It is not sufficient to point to a future intention to obtain such an opinion, as the defendant does. There has been sufficient time to do so, as it did with the make good costs, but it has not put anything before the Court. The defendant’s future intention amounts to nothing more than an intention to make enquiries and see if anything comes of it.
- [21]Also, a six-month re-letting period is not implausible, particularly where the premises had not been restored to the contracted condition before or immediately after the termination of the tenancy.
- [22]Similarly, the defendant asserts that it should be allowed to discover material about the sale of the premises to understand if there is a mitigation argument to be made. Mitigation is not pleaded in the Defence, but it could not have been given it occurred after the close of pleadings. Counsel is unable to point to anything that would be likely to affect this head of the damages claim, as opposed to simply hoping something will come of it, and I am unpersuaded that it is an appropriate basis to refuse the application on this part of the claim.
- [23]On the state of the pleadings and the evidence, there is no real prospect of the defendant defending this aspect of the claim. There is no identifiable need for a trial, in my view. The application, in so far as it relates to the damages for loss of rent, must succeed.
Damages for legal costs.
- [24]The plaintiff claimed $6,769.74 as damages for legal costs incurred in relation to the breach and re-entry to the premises. The defendant pleaded a non-admission, which was not addressed in the Reply.
- [25]The plaintiff put on affidavit material on the application suggesting a total outlay of $8,590.24 in legal fees, and attached invoices substantiating that amount, but waived any claim relating to the excess over the claimed amount. The effect is that the plaintiff is claiming only on the first of the two invoices, and submits that it is admissible as a business record of the amount paid in satisfying those legal costs.
- [26]The defendant’s affidavit material did not address this claim at all. Initially, oral submissions were directed to the admissibility of opinion evidence as to the reasonableness of the legal costs incurred. The defendant submitted that while the items of work undertaken were individually listed on the invoice, there was no identification in any of them, bar two, of the time taken and the rate applied. Those two exceptions were noted to be fixed fee items. It was argued that the Court could assess the reasonableness of the costs without the opinion evidence. Ultimately, the opinion was not pressed by the plaintiff as being admissible.
- [27]The defendant then submitted that, on the admissible evidence, there were reasonable prospects of defending at least some of what was charged and, in essence, relied on the same submissions as made on the objection to the opinion evidence. I don’t agree. The defendant’s submission was that the Court could assess reasonableness itself. While it is true that only a few of the items showed a fixed fee for the service, and hence it is unknown precisely how the charges were arrived at, the amount claimed is comfortably within range for what could be expected for this type of service.
- [28]Further, the non-admission pleaded in the Defence means that r. 165(2) of the UCPR applies, thereby limiting the opportunity for the defendant to be able to adduce any evidence on the topic. The defendant has not suggested how any such evidence would become admissible by going to another part of the defendant’s pleadings.
- [29]The prospect of discovering something mitigatory arising from the sale of the property cannot conceivably affect this head of damage, particularly so where the costs claimed accrued up to just over three months prior to the sale.
- [30]In my view, the defendant has no real prosect of defending this aspect of the claim, and there is no need for a trial. The application, in so far as it relates to the damages for legal costs, must succeed.
Conclusion
- [31]The application for summary judgment must be refused in respect of the “make good costs” damages claim, but otherwise succeeds, albeit on the limited basis it was orally argued as opposed to the pleadings in the Statement of Claim.
- [32]I will hear the parties as to costs.
Footnotes
[1]These orders were subsequently varied. See Prosser v Lifetime International.com Pty Ltd (No. 2) [2024] QDC 201.
[2]Salcedo v Deputy Commissioner of Taxation [2005] 2 Qd R 232.
[3]Coldham-Fussell v Commissioner of Taxation [2011] QCA 45, [99], [102].
[4]Queensland Pork Pty Ltd v Lott [2003] QCA 271, [41].
[5]RB Lease Pty Ltd v Heron [2013] QCA 181, [23].
[6][2012] QSC 314, [18], [22].