Posted: September 13th, 2017

Law Civil Procudure Assignment

Law Civil Procudure Assignment

Order Description

1. Drafting documents (except an appearance slip) required to achieve Summary judgement against the second Defendant

2. Draft an outline of argument appropriate for the hearing of the application and in compliance with supreme Court practice direction no 6 of 2004 Applications Jurisdiction – outline argument, documents read, appearance slip. A sample outline of argument is provided for example (see attached douments) but this is not an application for summary judgement

Note:    The Assignment must:
•    Be prepared and presented in the same way as any other piece of written work in the Law School (Refer to Written Assessment in the Law School, January 2015);
•    Be typed in 12 point font (Times New Roman or Arial), margins of at least 2.5cm with 1.5 line spacing; and
•    Not exceed 3,000 words – the word limit includes all material except footnotes (which must not contain matters of substance); in particular, quotes are included in the word count as well as words like ‘a’ and ‘the’ – material exceeding the word limit will not be read or marked.

The Assignment

You are a partner of the law firm, Cooper and Associates, and you act for Mr Peter Adams who owns the Premises defined in the Statement of Claim below. The material facts in relation to the debt incurred by a partnership, known as Newton Brown Partners, have been pleaded in the Statement of Claim below. Mr Adams had met with one of the partners, Norman Newton, and leased the Premises to the partnership.

The other partner, Bernard Brown, pleaded in his Defence, denied all of the allegations in the Statement of Claim alleging that he had retired from the partnership before Mr Adams met with Mr Newton and that the partnership no longer existed. In the Defence it was not pleaded that Mr Brown had given any formal notice of his retirement. On 6 February 2015 you called Steve Robins, a partner of Wilson and White, Lawyers who are the solicitors for Mr Brown, and pressed him for a copy of the notice that Mr Brown was no longer a partner of Newton Brown Partners. Mr Robins said that no such notice exists. A further request in writing to Mr Robins requesting a copy of any notice that Mr Brown was no longer a partner of Newton Brown Partners was answered in writing by Mr Robins confirming that no such notice exists.

Disclosure has been completed and the evidence that you have includes the following:
(a)    Copy of the Lease between Mr Adams and the partnership;
(b)    Copy of the Deed of Partnership pursuant to the Partnership Act 1891 (Qld) that stated there was no fixed term for the duration of the partnership that was not a limited or incorporated limited partnership.
(c)    Title search of the Premises dated 18 December 2014.
(d)    Copy of letter to solicitors for Mr Brown dated 9 February 2015 requesting a copy of any notice that Mr Brown had retired from the Partnership.
(e)    Letter from solicitors for Mr Brown dated 11 February 2015 stating that there was no notice that Mr Brown had retired from the Partnership.
(f)    Copies of invoices for payment of the Premises rental.
(g)    Copy of Mr Adams’ letter dated 8 December 2014 to Mr Newton requesting payment of the outstanding amount and warning that should payment not be received by 15 December 2014, the Lease would be terminated.
(h)    Copy of Mr Adams’ letter dated 15 December 2014 terminating the Lease and requesting payment of the outstanding amount.

You MUST answer BOTH Questions, 1 AND 2.

1.    Other than the document in Question 2 below, draft all of the documents (except an Appearance Slip) required to achieve Summary Judgment against the second defendant, Mr Bernard Brown.
If you include an exhibit or exhibits to an Affidavit, you are not required to produce a copy of the document that constitutes that exhibit in the Affidavit. Those documents will be described in the list of evidence provided above. However, in all other aspects of the Affidavit, you must do all that is required by the UCPR in relation to exhibits to Affidavits.
Should a detail or documentary evidence be necessary to enable drafting of the required document, for example the time of day or copy of an email, and has not been provided in this Assignment information, please include the detail or documentary evidence that best meets your client’s needs.
(25 marks)

2.    Draft an Outline of Argument appropriate for the hearing of the Application and in compliance with Supreme Court Practice Direction No 6 of 2004 Applications jurisdiction – outline of argument, documents read, appearance slip. A sample Outline of Argument is provided below as an example only, as it is not an Application for Summary Judgment.

STATEMENT OF CLAIM

Filed in the Brisbane Registry on:  5 January 2015.

This claim in this proceeding is made in reliance on the following facts:

1.    The plaintiff was the registered owner of premises located at 16 Smith Street, West End, Brisbane in the State of Queensland, more particularly described as Lot 2 on Registered Plan 587785, County of Expo, Parish of Southbank on Certificate of Title Reference 8844221 (the “Premises”).

2.    The first defendant and second defendant entered into a deed of partnership dated 1 January 2000 creating Newton Brown Partners.

3.    By an agreement in writing between the plaintiff and the first defendant, for and on behalf of Newton Brown Partners, dated 20 January 2012, the plaintiff agreed to lease the Premises to the first defendant and second defendant on certain terms and conditions for a period commencing on 1 February 2012 and expiring on 1 February 2016 (the “Lease”).

Statement of Claim                        Cooper and Associates
Filed on behalf of the Plaintiff                    Solicitors
Form 16, RR 22, 146                        10th Floor, 100 Queen St                                BRISBANE QLD 4000                                    Ph:  (07) 5555 4444
Fax: (07) 5555 4445

4.    The plaintiff will refer to the Lease at the trial or earlier hearing of this matter for its full terms, true meaning and effect.

5.    By clause 2.1 of the Lease, the first defendant and second defendant agreed to pay rent to the plaintiff in the amount of $25,000 per month in advance on the first day of each month.

6.    In breach of the Lease, the first defendant and second defendant have failed to pay the plaintiff rent in the sum of $275,000 referrable to the period 1 January 2014 to 1 November 2014.

Particulars

(a)    Instalment of rent due 1 January 2014.    $25,000
(b)    Instalment of rent due 1 February 2014.    $25,000
(c)    Instalment of rent due 1 March 2014.    $25,000
(d)    Instalment of rent due 1 April 2014.    $25,000
(e)    Instalment of rent due 1 May 2014.    $25,000
(f)    Instalment of rent due 1 June 2014.    $25,000
(g)    Instalment of rent due 1 July 2014.    $25,000
(h)    Instalment of rent due 1 August 2014.    $25,000
(i)    Instalment of rent due 1 September 2014.    $25,000
(j)    Instalment of rent due 1 October 2014.    $25,000
(k)    Instalment of rent due 1 November 2014.    $25,000
TOTAL    $275,000

7.    Despite numerous requests, the first defendant and second defendant have failed to pay the total price, as invoiced, of $275,000.00.

The plaintiff claims the following relief:

The sum of two hundred and seventy five thousand dollars ($275,000.00) together with interest on that amount under section 58 of the Civil Proceedings Act 2011 (Qld) of 10% per annum from 1 January 2014 to the date of judgment.

Signed: Cooper and Associates

Description:    Solicitors for the Plaintiff

NOTICE AS TO DEFENCE

Your defence must be attached to your notice of intention to defend.

NOTICE UNDER RULE 150(3)

The Plaintiff claims:

$275,000.00
$2,750.00    for interest; and
$637.00   for costs of issuing the claim and statement of claim.

This proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of $300.00 costs of entering judgment in default.

This sample Outline of Argument is provided as an example only as it relates to an Application that is NOT for Summary Judgment.

MAGISTRATES COURT OF QUEENSLAND

REGISTRY:    BRISBANE
NUMBER:    M101/11

Plaintiff:    FLASHY WHEELS PTY LTD
ACN 999 000 999

AND

Defendant:    PETER BUILT

PLAINTIFF’S OUTLINE OF ARGUMENT

1.    This is an application by the plaintiff for summary judgment.
Facts
2.    The plaintiff is a motor dealer. The defendant was a car owner. On 1 May 2011, the plaintiff agreed to buy a car from the defendant for $63,000.  On 20 May 2011, the plaintiff paid the $63,000 into the defendant’s bank account. However, due to an administrative error, on 12 May 2011, the plaintiff paid a further $63,000 into the defendant’s bank account.
3.    Despite demands, the defendant has refused to repay the second payment of $63,000. On 20 June 2011, the plaintiff filed a claim and statement of claim seeking restitution of the $63,000. On 12 July 2011, the defendant filed a notice of intention to defend and defence.
Law
4.    Rule 292 of the UCPR relevantly provides that a Court may give summary judgment for a plaintiff if satisfied that a defendant has no real prospect of successfully defending all or a part of a claim and there is no need for a trial of the claim or the part of the claim.
5.    The test for summary judgment entails the court applying the words found in r 292 of the UCPR. The words ‘real prospect’ in r 292 is used in contradistinction to ‘fanciful prospect.’   Once an applicant for summary judgment establishes a prima facie case entitling it to summary judgment, the evidentiary onus shifts to the respondent to persuade the court why judgment ought not to be given.
Submissions
6.    This is an appropriate proceeding in which to grant summary judgment. The plaintiff’s evidence demonstrates that the elements of the cause of action are satisfied, in that, there has been a payment of money by mistake to the defendant at the plaintiff’s expense and it would be unconscionable for the defendant to retain it.  The High Court has said:
In other words, receipt of a payment of money which has been made under a fundamental mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment.
7.    This has been recently cited with apparent approval by the Supreme Court of Queensland.
8.    The defendant has not raised any defence to the claim either in the defence or by evidence. The defence does not deny that the defendant has received the additional $63,000, and implies that he has spent that money. The essence of the defence appears to be that the defendant alleges he would incur hardship if he re-paid the money. This is not a defence to the claim recognised by law.
9.    In the circumstances, it is submitted that it can now be concluded with a very high degree of certainty that the defendant has no real prospect of successfully defending the claim and there is no need for trial. A trial can only waste the plaintiff’s costs and this Court’s resources.
Conclusion
10.    It is appropriate to grant judgment in accordance with the attached draft judgment.

A. B. Facey
Counsel for the Plaintiff
24 January 2012