Baviv Pty Ltd v J and R Cuda Pty Ltd, Cuda and Cuda

Baviv Pty Ltd sought leave to proceed with an action against J and R Cuda Pty Ltd and its directors, despite a two-year lapse in taking any steps in the action. The case was heard in a relevant Australian court, where the primary issue was whether the plaintiff could be granted leave to proceed with the action under rule 389(2) of the Uniform Civil Procedure Rules 1999, given the inactivity in the proceedings for two years.

The court had to determine if the plaintiff's lack of action for two years warranted the granting of leave to proceed. This involved examining whether the plaintiff had a bona fide prospect of succeeding in the action, and if there were any mitigating circumstances that could justify the delay. The court referenced the case of Tyler -v- Custom Credit Corporation Limited & Ors (2000) QCA 178, which provided guidance on similar issues.

After reviewing the circumstances, the court found that the plaintiff had a legitimate reason for the delay and had a bona fide prospect of succeeding in the action. Consequently, the plaintiff was granted leave to proceed with the action, with the requirement to deliver a Statement of Claim within 14 days from the date of the order. Additionally, the plaintiff was ordered to pay the defendants' costs of and incidental to this application, to be assessed.