Brown Consulting (Qld) Pty Ltd v Ross Nielson Properties Pty Ltd

[2011] QDC 87

[2011] QDC 87

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3642 of 2008

BROWN CONSULTING (QLD) PTY LTD	Plaintiff
and
ROSS NIELSON PROPERTIES PTY LTD	Defendant

BRISBANE

..DATE 17/05/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 389

Leave to proceed after more than 2 years - no real explanation for delay - defendant abides the court's order and does not assert prejudice

HIS HONOUR:  This is an application by the plaintiff for leave to proceed under rule 389 of the UCPR after a delay exceeding the two years referred to in the rule.

The claim filed on the 23rd of December 2008 was for fees for professional services of an engineering nature which, according to the statement of claim and affidavit material, have been performed by the plaintiff for the defendant in 2007 and 2008.

A notice of intention to defend and defence were promptly filed on the 27th of January 2009 raising some complaints about the work and invoking a set-off.  From that time the proceeding went to sleep. 

Mr Griffiths, a principal of the plaintiff, deposes to multiple occasions from February 2009 to February 2011 when he made inquiry of the solicitors engaged about progress of the matter.  There are 24 such occasions to which one might add another dozen inquiries of similar nature made by the plaintiff's chief executive officer Mr Fracchia from June 2009 to October 2010.

I agree with Mr Sindel representing the defendant that there is a great deal of mystery about the circumstances that are, perhaps, easier to understand when it's noted that this was far from the only legal matter that the firm was engaged in by the plaintiff.

There seems to have been some lack of communication within the firm as well, according to Mr Brookes' affidavit.  The solicitors accept responsibility for the unsatisfactory situation to the extent of proposing that they be responsible for the costs of the application.

Mr Sindel is abiding the court's order.  He correctly anticipated that the court will be inclined to allow the matter to proceed.  That seems to be the plaintiff's intention and desire.

In circumstances such as the present, the court's role is to act as a gatekeeper to ensure that where there's been a long delay, the proceeding ought not to be allowed to go on without the court's leave.  No reason appears why the leave ought not to be granted in this instance.  There's been no attempt to allege prejudice on the defendant's side.

There will be an order in terms of the initialled draft.

...

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