BOQ Equipment Finance Ltd v Stacy
[2015] WADC 154
•11 JANUARY 2016
BOQ EQUIPMENT FINANCE LTD -v- STACY [2015] WADC 154
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 154 | |
| Case No: | CIV:2903/2014 | 15 OCTOBER 2015 | |
| Coram: | REGISTRAR KINGSLEY | 11/01/16 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | BOQ EQUIPMENT FINANCE LTD JENNIFER FAY STACY DAVID NOEL STACY MANDURAH CONCRETE PUMPING PTY LTD ASTINA HOLDINGS PTY LTD PORT FORM PTY LTD |
Catchwords: | Practice Inactive Cases List Case dismissed under r 44G District Court Rules 2005 |
Legislation: | Nil |
Case References: | Carlin v Mladenovic [2002] SASC 90 Elwood v Goodman [2014] WADC 143 Musolino v Osmond [1996] SADC 3526; (1996) 189 LSJS 332 Rowe v Stoltze [2013] WASCA 92 The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JENNIFER FAY STACY
First Defendant
DAVID NOEL STACY
Second Defendant
MANDURAH CONCRETE PUMPING PTY LTD
Third Defendant
ASTINA HOLDINGS PTY LTD
Fourth Defendant
PORT FORM PTY LTD
Fifth Defendant
Catchwords:
Practice - Inactive Cases List - Case dismissed under r 44G District Court Rules 2005
Legislation:
Nil
Result:
Application allowed
Representation:
Counsel:
Plaintiff : Ms N Stewart
First Defendant : Mr R Lindsay
Second Defendant : Mr R Lindsay
Third Defendant : Mr R Lindsay
Fourth Defendant : Mr R Lindsay
Fifth Defendant : Mr R Lindsay
Solicitors:
Plaintiff : Smith Leonard Fahey Lawyers
First Defendant : Law Direct
Second Defendant : Law Direct
Third Defendant : Law Direct
Fourth Defendant : Law Direct
Fifth Defendant : Law Direct
Case(s) referred to in judgment(s):
Carlin v Mladenovic [2002] SASC 90
Elwood v Goodman [2014] WADC 143
Musolino v Osmond [1996] SADC 3526; (1996) 189 LSJS 332
Rowe v Stoltze [2013] WASCA 92
The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133
1 REGISTRAR KINGSLEY: The plaintiff has brought an application seeking orders that the action be removed from the Inactive Cases List and that the time for compliance with orders for directions made 2 February 2015 be extended. The plaintiff's application is supported by an affidavit of Natalia Markovski sworn 8 October 2015 (Markovski's first affidavit).
2 In opposition the defendants filed an affidavit sworn by Michael Patrick Brown on 14 October 2015. Subsequent to the hearing on 15 October 2015 the plaintiff filed a further affidavit of Markovski sworn 22 October 2015 (Markovski's second affidavit).
Background
3 The writ was issued by the plaintiff in September 2014. In essence the plaintiff pleads that it, and a company now in liquidation, entered into a written security interest chattel mortgage (chattel mortgage) for the financing of certain goods. In consideration for the plaintiff entering into the chattel mortgage with the liquidated company, the first, second, third fourth and fifth defendants entered into a written guarantee and indemnity.
4 As the liquidated company failed to pay the entirety of the loan instalments, the plaintiff called in the guarantees and, despite demand and, as pleaded, in breach of the agreement, the guarantors failed to pay the loan instalments. The plaintiff pleads that sum of $214,459.96 is owing pursuant to the guarantees.
5 In Markovski's first affidavit, Markovski deposes that at the time of taking carriage of the matter she believed that CIV 2903 of 2014 was running concurrently with BOQ Equipment Finance Ltd v David Noel Stacey, Gordon Henry Hall, TKS Enterprises Pty Ltd and Astina Holdings Pty Ltd (District Court CIV 3657 of 2014). In the two proceedings the plaintiffs are the same, the cause of action is similar and there are related defendants in both actions. Markovski, in her first affidavit, deposes that the existence of the two proceedings and their ongoing management caused her some misunderstandings in respect of compliance with directions in both proceedings.
6 On 16 April 2015 a notice was sent to the plaintiff advising that on 15 April 2015 the case was put on the Inactive Cases List due to the failure to re-enter the case for trial within the time specified. The notice goes on to state that 'Pursuant to r 44G(1) a case that is on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution'. The plaintiff's chamber summons to remove the case from the Inactive Cases List came on for hearing on 15 October 2015, having been filed by the plaintiff's solicitors on 6 October 2015, but not listed by the court until 15 October 2015.
Has the action been deemed dismissed
7 The notice that the case is on the Inactive Cases List was issued on 16 April 2015 and stated that the case was placed on the Inactive Cases List on 15 April 2015. The notice stated that if an action is on the Inactive Cases List for six continuous months it is deemed to have been dismissed for want of prosecution. Pursuant to s 62(3) Interpretation Act 1984, where a time period of six months is referred to, the period of six months is calculated from the date on which it is to begin to the date numerically corresponding in the sixth month, less one. The example given in s 62(3) is that six months beginning on 15 August ends on 14 February.
8 Applying s 62(3) to this matter the six months expired on 14 October 2015. Pursuant to r 44G a case that has been on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution. This case having been on the Inactive Cases List for six continuous months has now been dismissed for want of prosecution.
9 Having come to that conclusion counsel for plaintiff then made an oral application for the court to exercise its discretion to set aside the dismissal. Counsel for both the plaintiff and defendants were invited to file submissions on whether exceptional circumstances existed to enliven the discretion of the court to set aside the dismissal.
Exceptional circumstances
10 Pursuant to r 44G(5) the court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under s 44G(1).
11 The construction of the term exceptional circumstances in r 44G(5) has been considered in Elwood v Goodman [2014] WADC 143 and in The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133 (The Owners of SP 13443).
12 The common theme in both of those cases, which broadly follow Musolino v Osmond [1996] SADC 3526; (1996) 189 LSJS 332, is that a circumstance is exceptional if it is out of the ordinary, uncommon, unusual or atypical, and causally related to the default in question. The circumstances do not need to be unique or unprecedented or very rare. However a circumstance is not exceptional if they are regularly or routinely or normally encountered.
13 There would be no exceptional circumstance in a case where a plaintiff has manifested a lack of interest or will to prosecute the action, and the action has lain dormant, hanging over of the head of the defendant and clogging up the administration of the court (Rowe v Stoltze [2013] WASCA 92 [71]).
14 The issue whether there are exceptional circumstances is a jurisdictional threshold question which must be satisfied before there can be any consideration of the factors warranting the exercise of the discretion to set aside the dismissal (The Owners of SP 13443 [47]).
15 If it is established that there are exceptional circumstances causally related to the dismissal of the action, the discretion of the court to set aside that dismissal is enlivened. The discretion should be exercised having regard to the interests of justice after considering factors such as:
(a) whether there was any delay in bringing the r 44G(5) application to set aside the dismissal;
(b) the merits of the plaintiff's case;
(c) the prejudice to the plaintiff if the dismissal of the action is not set aside; and
(d) the prejudice to the defendant if the dismissal of the action is set aside (The Owners of SP 13443, [54]).
Are there exceptional circumstances
16 The plaintiff's claim is for monies owing pursuant to guarantees given in relation to the chattel mortgage. The proceedings were issued in September 2014 and after orders were made for provision of particulars by the plaintiff on 5 November 2014 defences were filed on 14 November 2014. The plaintiff brought an application for summary judgment on 15 December 2014 and on 19 December 2014 the defendants amended their defence.
17 The plaintiff's application for summary judgment was re-listed on 30 January 2015 and adjourned to 2 February 2015. On 2 February 2015 the plaintiff's application for summary judgment was dismissed. By way of direction the parties were to exchange a list of documents verified on oath by 27 February 2015 and that any further request for particulars by the defendants to be delivered by 20 February 2015 and responded to by the plaintiff by 13 March 2015. On 8 April 2015 there was no appearance at a pre-trial conference on the part of the plaintiff, and on 13 April 2015 there was no appearance at a listing conference by the plaintiff.
18 There has been no explanation why there was a non-appearance on those two occasions.
19 On 16 April 2015 the notice that the case is on the Inactive Cases List was issued. The plaintiff brought an application to remove the action from the Inactive Cases List on 6 October 2015. The application, notwithstanding the request of the solicitors that the chamber summons needs to be listed for hearing before 15 October 2015, was listed on 15 October 2015.
20 The question of whether there are exceptional circumstances in a case is confined to those circumstances which are causally related to the dismissal of the action. In my opinion the causal relationship leading to the deemed dismissal of the action was the inability of the court to list the plaintiff's chamber summons prior to the deeming provision taking effect. The plaintiff's application was brought within the six-month period, and the plaintiff requested the application be listed prior to 15 October 2015. Whether through mistake, or simply the lack of resources, the application was not listed until 15 October 2015.
21 The plaintiff's solicitors may well be criticised for not better explaining the circumstance, and requesting that the issue be put before a registrar to seek approval for an earlier listing.
22 The blamelessness of the plaintiff and the default of the plaintiff's solicitors were held, in Carlin v Mladenovic [2002] SASC 90, to be a relevant factor to be considered when deciding whether special circumstances existed. Taking into account the relevant factors in Carlin the judges, on appeal, determined that in the particular circumstances the fault lay solely with the solicitors in circumstances with which the litigant should not be saddled.
23 In my opinion, having regard to the fact that the plaintiff's solicitors brought their application in time, and that the application was listed by the court after the date on which the action was dismissed, and the fact that the plaintiff's solicitors could have taken more robust steps, having regard to the consequences of the failure to have the application heard in time, the plaintiff has established exceptional circumstances.
In exercise of the discretion
24 In the exercise of my discretion I note the application for orders to make the action active was brought before the case was dismissed. There was no delay attributable to the plaintiff. The plaintiff's case, on its face, does have merit. The plaintiff has not manifested a disinterest or lack of will to prosecute its claim. Markovski's first affidavit details the actions to be taken to ensure compliance with orders. Counsel has now been briefed to settle the response to the defendant's request for particulars, and the list of documents to be verified on oath has been finalised. Counsel has also been briefed to take the matter to trial.
25 Having regard to the fact that the matter has gone to a listing conference there will be prejudice to the plaintiff if leave were not granted.
26 There will always be prejudice to a defendant if the dismissal is set aside. However the action is at least ready to be listed for trial and the matter can be brought to trial in a timely fashion.
27 Accordingly I will set aside the dismissal of the action and order that the action be made active. I will hear counsel on the issue of costs and to re-list the listing conference.
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