Kwai Yim Woo v Prior

[2006] QDC 313

[2006] QDC 313

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

KWAI YIM WOO and LOP SOON WONG	Plaintiffs
and

CHRISTOPHER DAVID PRIOR and

KATHERINE MARIE THOMAS Defendants

SOUTHPORT

..DATE 21/08/2006

ORDER
Catchwords
Uniform Civil Procedure Rules r9 and r13 - by consent of the
parties, proceedings commenced by claim directed to proceed as
an application after closure of pleadings.
HIS HONOUR: This is an application by the defendants seeking

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pursuant to Rule 16, "that the proceedings be struck out".
The applicant/defendants exhibit some lack of confidence (and
understandably so) in that they seek alternative relief under
Rule 13, namely that the proceedings continue as if started by

application with appropriate directions. Costs are sought.	10
Pleadings have been completed. The Claim and Statement of
Claim were filed on the 9th of December 2005, the Notice of
Intention to Defend and Defence on the 4th of July, 2006 and
the plaintiff's reply on the 18th of August 2006.	20
The matter is slow to Court in that it concerns the fate of a
deposit paid in connection with the sale of a house property dated the 8th of January 2005. The contract was conditional upon "the full and final settlement of the buyers' property	30
situated at 72 River Crescent, Broadbeach Waters". The
relevant condition revealed there was an unconditional
contract of sale of 72 River Crescent in respect of which the
14th of February 2005 was an important date, presumably the
date for completion.	40
It seems to be common ground now that completion did not
happen. The plaintiff buyers have sought return of their
deposit of $10,000. The defendant vendors have resisted that,
asserting that the deposit should be forfeited to them,	50

presumably on the basis of the plaintiffs' failure to take
proper or timely steps to entitle them to return of the
$10,000.
I accept from Mr Richardson for the plaintiffs, he not having 2 ORDER 60

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been contradicted by Mr Delaney, that before these proceedings
(which seek "Declaratory relief that the contract of 8th
January 2005 contained a condition precedent" and that the
contract had no effect, also return of the deposit) the

defendants, by their solicitors, had foreshadowed a Supreme	10
Court application by them and then a Magistrates Court claim, in which connection they enquired whether Mr Richardson's' firm had instructions to accept service.
Mr Delaney says that his clients' defence, which curiously	20
does not include the counter-claim one would expect for
forfeiture of the deposit, was filed not to concede that a
claim was appropriate, but rather to protect his clients'
position after some months of frustration in seeking to get Mr
Richardson to agree that the proper procedure was by way of	30
application.
Last Friday the plaintiffs apparently agreed to the relief
sought under Rule 13. I am not sure whether that involves any
admission that the claim was inappropriately started as a	40
claim rather than an application.
...
HIS HONOUR: It seems to me that the rules preceding rule 13	50

are somewhat unclear on the borderline between application
matters and claim matters. Rule 9 requires a claim, but not
if the rules "require or permit" an application. It is far
from clear to me that the present circumstances are ones for 3 ORDER 60

limited to disclosure and the Court fixing a hearing date	10
today. Mr Delaney has expressed a view, without detailed
submissions to support it, that the claim procedure may be
more time and costs consuming. In light of the orders being
made today, assuming Mr Delaney's view is correct, once
pleadings have closed, I trust that will not happen.	20
This argument between the parties is about costs, Mr
Richardson suggesting the costs be in the cause Mr Delaney on
the basis that he has scored a victory seeking costs in favour
of his clients.	30
He has also made the contention which Mr Richardson has not
resisted, that is inherent in the (defence which to a
considerable extent is an uninformative document on the
professed basis that the defendants do not know what has	40
happened) that if the claim fails the defendants ought to have the deposits moneys. There seems no point in the Court requiring further clarification of this.
The parties are not asking for directions that the matter	50

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an application. It is far from clear that there are not
factual issues lurking; all this is by the by in the sense the
parties are agreed that the matter should proceed by way of
application. They join in their request for directions

proceed on affidavit. While it seemed there was a possibility relevant weeks at Southport does not enable that to be accommodated easily. So, costs are better disposed of rather 4 ORDER 60

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than reserved for consideration later, which I would have done
had I been the trial judge. On balance I think Mr
Richardson's approach is the right one. Whoever gets the
money as a result of a Court order if the parties are unable

to resolve the fate of $10,000 in the meantime ought to get	10
the costs of today, which has been useful in advancing the matter.
This is a very unusual application. I am not aware of any
under Rule 13 previously, although successful applications	20
under Rule 14 are common. The orders will be:
(1) That pursuant to Rule 13 the proceeding go ahead as an

application.

30

(2) That the parties make disclosure on or before the 11th of

September 2006.

(3) That the hearing occur on the 28th of September 2006.

40

(4) That costs be cost and cause.

(5) Liberty to apply.

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5 ORDER 60