Australia Abalone World Pty Ltd v Yin - [2020] QDC 190

DISTRICT COURT OF QUEENSLAND

CITATION:

Australia Abalone World Pty Ltd v Yin [2020] QDC 190

PARTIES:

AUSTRALIA ABALONE WORLD PTY LTD ACN 136 651 913

(plaintiff)

v

WEI GUANG YIN (AKA ANTHONY WEI GUANG YIN)

(first defendant)

and

B.N.Y TRADING PTY LTD ACN 098 709 886

(second defendant)

and

JILOON PTY LTD ACN 124 914 263 AS TRUSTEE FOR YIN FAMILY TRUST

(third defendant)

FILE NO/S:

4582/11

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2020

JUDGE:

Barlow QC DCJ

ORDER:

1.     The proceeding be listed as a reserve trial for a five day trial commencing on 16 November 2020, subject to orders 2 and 3 below.

2.     Provided that the plaintiff provides to the registrar, in a form satisfactory to the registrar, security for the defendants’ costs of the proceeding, in the sum of $40,000, by 4.00pm on 21 August 2020, the plaintiff have leave to take further steps in this proceeding.

3.     If the plaintiff does not provide security in accordance with order 2, the proceeding be dismissed for want of prosecution.

4.     If the plaintiff provides security in accordance with order 2, then the following orders and directions apply.

5.     The plaintiff file and serve any further amended statement of claim by 24 August 2020.

6.     The defendants file and serve any further amended defence by 2 September 2020.

7.     The plaintiff file and serve any amended reply by 8 September 2020.

8.     The parties complete any further disclosure by serving a list of documents, together with copies of any documents in that list not already provided to the other parties, by 10 September 2020.

9.     The proceeding be listed for review and any further directions on 11 September 2020.

10.   The plaintiff pay the defendants’ costs of and incidental to the applications filed on 9 July 2020 and 28 July 2020, on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – proceeding commenced in 2011 – plaintiff has not taken a step in the proceeding for over two years – defendants seek an order dismissing the proceeding for want of prosecution – plaintiff seeks an order giving it leave to proceed

Uniform Civil Procedure Rules 1999 r 280, r 389(2)

Artahs Pty Ltd v Gall Standfield & Smith [2011] QSC 273, considered

Chapman v Australian Stock Exchange Ltd (unreported, Federal Court of Australia, NG20/1994, Tamberlin J, 25 August 1995), considered

Eltran Pty Ltd v Westpac Banking Corporate (1990) 25 FCR 322, considered

Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214, considered

COUNSEL:

C Templeton for the plaintiff

CW Chiang for the defendants

SOLICITORS:

ACLG Lawyers for the plaintiff

Rice Legal, as town agents for Francis Lim Lawyers, for the defendants

This proceeding commenced on 14 November 2011. Yesterday I heard two applications. The first, filed by the defendants on 9 July 2020, seeks an order dismissing the proceeding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QDC 190
Decision Date: 7 August 2020

CaseChat Overview and Summary

Australia Abalone World Pty Ltd brought an action against Yin, seeking damages for breach of contract and other related claims. The case was filed in 2011, but the plaintiff did not take any steps in the proceeding for over two years. The defendants moved to dismiss the proceeding for want of prosecution, while the plaintiff sought leave to proceed with the action. The court was required to determine whether the plaintiff should be granted leave to proceed with the action, and if so, what conditions should be imposed.

The court held that the plaintiff was not entitled to proceed without providing security for the defendants' costs, as the proceeding had been inactive for a significant period. The court noted that the plaintiff had failed to take any steps in the proceeding for over two years, despite the defendants' requests for progress. The court found that the plaintiff's conduct amounted to a want of prosecution, which justified dismissal of the proceeding. However, the court was willing to grant leave to proceed on the condition that the plaintiff provided security for the defendants' costs. The court considered that this condition was necessary to ensure that the proceeding would be prosecuted with due diligence and that the defendants would not be prejudiced by the plaintiff's delay.

The court ordered that the proceeding be listed as a reserve trial for a five-day trial commencing on 16 November 2020. The plaintiff was granted leave to take further steps in the proceeding, provided that it provided security for the defendants' costs in the sum of $40,000 by 4.00pm on 21 August 2020. If the plaintiff failed to provide the security, the proceeding would be dismissed for want of prosecution. If the plaintiff provided the security, the court imposed several directions and orders to ensure that the proceeding would be prosecuted with due diligence. The plaintiff was also ordered to pay the defendants' costs of and incidental to the applications filed on 9 July 2020 and 28 July 2020, on the indemnity basis.

Orders

Orders of the court

1. The proceeding be listed as a reserve trial for a five day trial commencing on 16 November 2020, subject to orders 2 and 3 below.

2. Provided that the plaintiff provides to the registrar, in a form satisfactory to the registrar, security for the defendants’ costs of the proceeding, in the sum of $40,000, by 4.00pm on 21 August 2020, the plaintiff have leave to take further steps in this proceeding.

3. If the plaintiff does not provide security in accordance with order 2, the proceeding be dismissed for want of prosecution.

4. If the plaintiff provides security in accordance with order 2, then the following orders and directions apply.

5. The plaintiff file and serve any further amended statement of claim by 24 August 2020.

6. The defendants file and serve any further amended defence by 2 September 2020.

7. The plaintiff file and serve any amended reply by 8 September 2020.

8. The parties complete any further disclosure by serving a list of documents, together with copies of any documents in that list not already provided to the other parties, by 10 September 2020.

9. The proceeding be listed for review and any further directions on 11 September 2020.

10. The plaintiff pay the defendants’ costs of and incidental to the applications filed on 9 July 2020 and 28 July 2020, on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Australia Abalone World Pty Ltd v Yin [2020] QDC 190
PARTIES:	AUSTRALIA ABALONE WORLD PTY LTD ACN 136 651 913 (plaintiff) v WEI GUANG YIN (AKA ANTHONY WEI GUANG YIN) (first defendant) and B.N.Y TRADING PTY LTD ACN 098 709 886 (second defendant) and JILOON PTY LTD ACN 124 914 263 AS TRUSTEE FOR YIN FAMILY TRUST (third defendant)
FILE NO/S:	4582/11
DIVISION:	Civil
PROCEEDING:	Application
DELIVERED ON:	7 August 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2020
JUDGE:	Barlow QC DCJ
ORDER:	1. The proceeding be listed as a reserve trial for a five day trial commencing on 16 November 2020, subject to orders 2 and 3 below. 2. Provided that the plaintiff provides to the registrar, in a form satisfactory to the registrar, security for the defendants’ costs of the proceeding, in the sum of $40,000, by 4.00pm on 21 August 2020, the plaintiff have leave to take further steps in this proceeding. 3. If the plaintiff does not provide security in accordance with order 2, the proceeding be dismissed for want of prosecution. 4. If the plaintiff provides security in accordance with order 2, then the following orders and directions apply. 5. The plaintiff file and serve any further amended statement of claim by 24 August 2020. 6. The defendants file and serve any further amended defence by 2 September 2020. 7. The plaintiff file and serve any amended reply by 8 September 2020. 8. The parties complete any further disclosure by serving a list of documents, together with copies of any documents in that list not already provided to the other parties, by 10 September 2020. 9. The proceeding be listed for review and any further directions on 11 September 2020. 10. The plaintiff pay the defendants’ costs of and incidental to the applications filed on 9 July 2020 and 28 July 2020, on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – proceeding commenced in 2011 – plaintiff has not taken a step in the proceeding for over two years – defendants seek an order dismissing the proceeding for want of prosecution – plaintiff seeks an order giving it leave to proceed Uniform Civil Procedure Rules 1999 r 280, r 389(2) Artahs Pty Ltd v Gall Standfield & Smith [2011] QSC 273, considered Chapman v Australian Stock Exchange Ltd (unreported, Federal Court of Australia, NG20/1994, Tamberlin J, 25 August 1995), considered Eltran Pty Ltd v Westpac Banking Corporate (1990) 25 FCR 322, considered Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214, considered
COUNSEL:	C Templeton for the plaintiff CW Chiang for the defendants
SOLICITORS:	ACLG Lawyers for the plaintiff Rice Legal, as town agents for Francis Lim Lawyers, for the defendants