Allan James Cummings v Peter J Davis

SUPREME COURT OF QUEENSLAND

CITATION:

Allan James Cummings & Anor v Peter J Davis & Anor
[2000] QSC 158

PARTIES:

Allan James CUMMINGS
AND
Lynn Mari CUMMINGS
(Plaintiffs/Respondent)
v
Peter J DAVIS
AND
Brian T EGAN
(Defendants/Applicant)

FILE NO:

No. S2099 of 1994

DELIVERED ON:

7 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2000

JUDGE:

Chesterman J

ORDER:

1.  That the action be dismissed

2. That the defendants’ costs of the action and of the     application be assessed on the standard basis and paid by the plaintiffs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – OTHER MATTERS BEFORE TRIAL – application to dismiss for want of prosecution – whether the interests of justice require that the proceedings be dismissed – factors relevant to court’s discretion – delay and lack of  explanation for delay by plaintiff – affect on prospects for fair trial – attitude of plaintiffs towards accelerating action.

COUNSEL:

D McLure solicitor for the applicants
P Sayer solicitor for the respondents

SOLICITORS:

Minter Ellison for the applicants

Thomson Redhead as town agents for Saunders Downing for the respondents

Uniform Civil Procedure Rules rr 280, 138, 214

Birkett v James [1978] AC 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cooper v Hopgood & Ganim [1999] 2 Qd R 113
Shire of Myrtleford v Bowater Scott Ltd (1985) 62 LGRA 314
Stollznow v Calvert (1980) 2 NSWLR 749
Tricon Industries Pty Ltd v Able Lemon & Company Pty Ltd (No 2) [1998] 2 Qd R 55

1. CHESTERMAN J:  The defendants apply to dismiss the plaintiffs’ action for want of prosecution.  The application depends upon the inherent jurisdiction of the court.  In somewhat unusual circumstances for an application of this type the plaintiffs have not failed to take a step presently required of them nor have they failed to comply with an order of the court.  UCPR 280 does not therefore provide a basis for the application. 

1. The plaintiffs’ claim is essentially a simple one.  They and companies owned and controlled by them contracted to sell two parcels of improved land to a company, Alimyawl Pty Ltd, in about November 1988.  The defendants were at the time solicitors who carried on practice in partnership.  The first named defendant acted for the plaintiffs in connection with the sales.  Settlement occurred on 23 December 1988.  Between execution of the two contracts of sale and their settlement it became apparent that Alimyawl Pty Ltd could not pay the whole of the purchase price under either contract.  The contracts were varied to allow the purchaser to pay part only of the price on settlement. The balance was due about two months later, on 28 February 1989.

In the event that Alimyawl Pty Ltd could not pay the balance on the due date the variation agreement provided, unusually, that the amount due was to be reduced by $54,000.00.  The reduced sum was to be paid over three years and was to attract interest.

The case against the defendants is…