ATK Mackay Pty Ltd v Oke One Pty Ltd

[2013] QDC 10

DISTRICT COURT OF QUEENSLAND

CITATION:

ATK Mackay Pty Ltd v OKE One Pty Ltd  [2013] QDC 10  (delivered ex tempore)

PARTIES:

ATK MACKAY PTY LTD
(Plaintiff)

v

OKE ONE PTY LTD  
(Defendant)

FILE NO/S:

63/2011

PROCEEDING:

Application

DELIVERED ON:

17/01/2013

DELIVERED AT:

Brisbane

JUDGE:

Samios DCJ

ORDER:

1. Order as per draft.

COUNSEL:

SM McLennan for the plaintiff.

M Webster for the defendant.

SOLICITORS:

Kelly Legal for the plaintiff.

Tucker and Cowen for the defendant.

1. The plaintiff claims against the defendant monies for commission the plaintiff says is due and owing by the defendant to the plaintiff for properties sold by the plaintiff on behalf of the defendant.

1. The claim was filed in the Mackay Registry of the District Court on the 11th of July 2011.  A notice of intention to defend was filed on 16 August 2011.

1. I assume there have been amendments to the pleadings since then.  I have not read the amended pleadings on the applications which are before me today.  However, it is clear that there have been a number of applications made in the course of the proceedings.  The file has grown to three volumes.

1. Despite the disputes between the parties, which appear to have been resolved, as far as I can see, by consent orders, on 1 November 2012, a consent order was made which included directions that both parties complete any supplementary disclosure by 30 November 2012, and the parties complete a request for trial date by 14 December 2012.  Those steps have not been complied with.

1. The plaintiff filed an application on 8 January 2012, seeking judgment on the grounds of the defendant's failure to comply with the order of 1 November 2012.  That is not proceeded with today.  However, the alternative order sought which is proceeded with is that directions be made as to the future conduct of the proceedings.

1. The defendant has filed an application on 11 January 2013 seeking to vary the order about completing any supplementary disclosure by 30 November 2012 by substituting a date of 15 February 2013.

1. In addition, the defendant seeks in this application that the order that both parties complete a request for trial date by 14 December 2012, be set aside.

1. The affidavit material read by the plaintiff shows that the plaintiff has been desirous of progressing this matter to trial, and that it has been a case of the plaintiff bringing applications and then the matters being resolved by agreement.  Notwithstanding agreement though, the plaintiff has had to pursue the defendant further to comply with what had been agreed.

1. Matters have got to the stage though that new solicitors have commenced to act for the defendant as from the 22nd of November, 2012.  Instructions were received by these new solicitors, Messrs Tucker and Cowan, from the defendant, on 20 November, 2012.

1. Clearly, it has been a substantial task for the new solicitors for the defendant.  In particular, Ms Webster, to review the pleadings and the disclosure.  Ms Webster is of the opinion, that there may be a need for more interlocutory steps, including amendment to pleadings. And that at this stage the request for trial date could not be signed, as in her opinion, the matter is not ready for trial.

1. Clearly on the affidavits that I have read, including Ms Webster's affidavit filed 16 January, 2013, both parties say more has to be done in respect to disclosure.

1. The matter has been on foot for about 18 months.  One would think that these are not matters that should be outstanding at this stage.  Even the plaintiff seeks that the defendant complete more disclosure.

1. Although disclosure today appears to have been tortuous, I have come to the view that a direction should be given allowing further time to the parties who the Court hopes with good will, will complete disclosure by the time allowed.

1. There will, it seems to me, be a possibility that the pleadings will be amended.  Ms Webster is to be commended for identifying where there might be able to be an admission made, which may narrow the issues at the trial.  That is to be encouraged.

1. However, Mr McLennan who appears for the plaintiff today, does seek orders that the proceedings be transferred from MacKay to Brisbane, and that they be listed for trial, for five days commencing 18 March, 2013. I amend that. He initially sought three days. However, my view that I expressed to him was that, allow five days rather than three. If the matter is concluded within three days, well and good. I think Ms Webster, while not accepting that the matter should be set down for trial, accepted that it could be a five day trial.

1. One option before me is to simply send the matter back to MacKay.  However, my conscience does not allow that.  The plaintiff is anxious to have a trial, and no doubt the defendants would benefit from the resolution of the dispute quickly.  Those representing the defendant can also get on with their lives.

1. My experience is that it is unlikely this matter will be heard in MacKay earlier than it might be heard in Brisbane.  Dates are available in Brisbane in the future.  I am satisfied that there is no need for the matter to be heard in MacKay; and that it could be justly heard here in Brisbane.  To be blunt, I would be surprised if this matter could be heard in MacKay this year.

1. In the circumstances, I have come to the view that the parties have had enough time to prepare the matter for trial.  The fact that the defendant has changed solicitors should not lead to a delay in the matter proceeding to trial.  That is a matter for the defendant, that it chose to change solicitors.  Of course, some regard must be had to the change that has occurred, and allowance made for it in the directions. However, litigation should be conducted expeditiously, in the interests of all parties.

1. Therefore, I have come to the view that these are the orders that I will make: I order that the proceedings be transferred from MacKay to Brisbane. I order that the proceedings be listed for trial, for five days, commencing 18 March, 2013.

1. I order that the requirement that the proceedings not be set down for trial unless the parties sign a request for trial date, in the approved form, be dispensed with, pursuant to rule 467, sub-rule 2, of the Uniform Civil Procedure Rules.

1. I order that the following directions are made: 

(i)  The defendant file and serve any amended defence by 31 January, 2013.

(ii) That the plaintiff file and serve any amended reply by 7 February, 2013.

(iii) The parties complete any supplementary disclosure by 15 February, 2013.

1. I will hear the parties on the question of costs. 

1. I have come to the view that in relation to the costs of both these applications, filed 8 January, 2013, and 11 January, 2013, that the parties' costs of these applications be the parties' costs in the cause.

1. My reasons are that I consider that the defendant's solicitors currently acting, have acted reasonably in the circumstances.  I am not prepared, at this point, to conclude that the defendant has unreasonably delayed the matter, since the solicitors have come into the matter.  And I consider that if the plaintiff is vindicated both as to the action and what occurred in these applications, the plaintiff's costs will be protected by making them costs in the cause.

1. Of course, if the plaintiff fails in the action, then one would argue the action should never have been brought, and all these costs should not have been incurred, and the defendant will be able to recover its costs.  So there will be an order as per the draft, initially by me, and left with the papers.