Rado v Golden Casket (No 2)

[2021] QSC 354

SUPREME COURT OF QUEENSLAND

CITATION:

Rado v Golden Casket (No 2) [2021] QSC 354

PARTIES:

KATHY RADO

(applicant)

v

GOLDEN CASKET

(respondent)

FILE NO/S:

SC No 576 of 2021

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED EX TEMPORE ON:

19 November 2021

DELIVERED AT:

Cairns

HEARING DATE:

19 November 2021

JUDGE:

Henry J

ORDER:

1.    Application dismissed.

2.    The applicant will pay the respondent’s costs of the application to be assessed on the standard basis if not agreed.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – GENERALLY - where a division 1 lottery prize has remained unclaimed since 2014 – where the applicant claimed that she purchased the winning ticket but subsequently lost it – where the applicant seeks an order that a proportion of the money be paid on the basis she was the purchaser of the winning ticket – when the applicant repeats a previously failed application

Uniform Civil Procedure Rules 1999 (Qld), r 14

Rado v Golden Casket [2021] QSC 20, related

COUNSEL:

The applicant appeared on her own behalf

F Lubette for respondent

SOLICITORS:

The applicant appeared on her own behalf

King & Wood Mallesons for the respondent

HENRY J: I gave a decision in Rado v Golden Casket [2021] QSC 20 on 4 February 2021. The applicant in the present application is, again, Ms Rado and the respondent is, again, Golden Casket. The relief sought in this application is, in a legal sense, not materially different from the relief sought last time. The detail of some of the content of the application varies somewhat. But as I have explained today to Ms Rado, at the heart of the application it is, in a legal sense, seeking an order that money be paid on the basis that she was the purchaser of a winning lotto ticket.

Admittedly, she is not seeking the same amount of money as last time; only a proportion of the overall win, rather than the total win.  But that is neither here nor there, because, in a legal sense, the nature of the relief I have just identified demonstrates the unsuitability of it being pursued through an application.  It is sufficient to observe that the reasons I gave last time apply in the same way to today’s application.  I do not propose to repeat the substance of them, having made that indication. 

I would merely add that I have again endeavoured to explain why it is that a dispute such as this is not apt for pursuit through an application, but rather would be in the normal course, at least subject to arguments about limitation periods, pursued as a breach of contract case; that is to say, by a proceeding instituted by filing of a claim and pleadings. 

That pathway, should it survive any points about limitation periods, would ultimately lead to a trial at which I could actually hear evidence and determine where the truth lies.  An application is not an appropriate avenue for the pursuit of such an argument. 

I have turned my mind to the fact that I have powers under the Uniform Civil Procedure Rules to order that an application be continued as if started by a claim and give directions for the filing of pleadings and so forth.  Neither party sought that that occur.  In the circumstances of this case, where there is, if I can put it as neutrally as I can, a cloud over whether or not such a claim would be statute barred, it seems unwise for the Court to initiate an order of that kind of its own volition. 

The upshot, then, is for the same reasons as last time, this application, too, must be dismissed.  Costs will follow the event.  The respondent might well have been entitled to indemnity costs this time around, but has fairly not pressed that point. 

My orders then are:

1. Application dismissed.

2. The applicant will pay the respondent’s costs of the application to be assessed on the standard basis, if not agreed.