Capima Pty Ltd v Hansen - [2005] QSC 208

SUPREME COURT OF QUEENSLAND

CITATION:

Capima Pty Ltd & Others v Hansen [2005] QSC 208

PARTIES:

CAPIMA PTY LTD (ACN 010 682 934) as Trustee of the STEVENS FAMILY TRUST
(first plaintiff/respondent)
THOMAS POWELL STEVENS
(second plaintiff/respondent)
JOHN BRIAN STEVENS
(third plaintiff/respondent)
ELSIE JANETTE STEVENS
(fourth plaintiff/respondent)
DEBORAH JEANNE STEVENS
(fifth plaintiff/respondent)
v
TREVOR HANSEN
(defendant/applicant)

FILE NO/S:

BS4761 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

27 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2005

JUDGE:

Mullins J

ORDER:

1. The order of the Deputy Registrar made on 27 May 2004 renewing the claim in this proceeding is set aside
2. The proceeding is dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – renewal of originating process – Uniform Civil Procedure Rules r 24(2) – review of registrar’s decision to renew the writ on an ex parte application – whether there was good reason to renew the writ

UCPR r 24

Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513
Van Leer Australia Pty Ltd v Palace Shipping KK (1979) 180 CLR 337

COUNSEL:

A Vasta QC and FG Forde for the plaintiffs/respondents
RG Bain QC and MR Hodge for the defendant/applicant

SOLICITORS:

Neumann & Turnour for the plaintiffs/respondents
Praeger Batt Solicitors for the defendant/applicant

MULLINS J: The defendants seek to set aside the order made by the Deputy Registrar on 27 May 2004 renewing the claim in this proceeding for a period of 12 months.

The jurisdiction exercised by the Deputy Registrar was that conferred under r 24 of the UCPR. It is common ground that the court has jurisdiction to discharge an order made by the Deputy Registrar on an ex parte application pursuant to r 24 of the UCPR. It is also common ground that the court is not limited to the materials before the Deputy Registrar, but can take into account all the evidence that is now available that is relevant to the issue whether the claim should have been renewed.

The basis on which the Deputy Registrar renewed the claim was that there was “good reason to renew the claim”. The approach to the question of good reason was considered by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK (1979) 180 CLR 337 and that approach was summarised by Pincus JA in Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at paragraph [4] as follows:

“(1)There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
(2)The discretion may be exercised although the statutory limitation period has expired.
(3)Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
(4)There is a wide and unfettered discretion and there is ‘no better reason for granting relief…

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: [2005] QSC 208
Decision Date: 27 July 2005

CaseChat Overview and Summary

Capima Pty Ltd, the plaintiff, filed proceedings against Hansen, the defendant, seeking relief in the Supreme Court of Victoria. The plaintiff sought to enforce a judgment obtained in the County Court of Victoria, which was initially filed on 21 August 2003. The defendant applied for an extension of time to file a defence, which was denied. Subsequently, the plaintiff applied for an order to renew the writ, which was granted ex parte by the Deputy Registrar on 27 May 2004. The defendant sought a review of the Deputy Registrar's decision to renew the writ.

The primary legal issue before the court was whether there was good reason to renew the writ. The court had to consider the criteria outlined in Uniform Civil Procedure Rules r 24(2), which sets out the circumstances under which a writ may be renewed. The court also had to consider the factors relevant to the exercise of the discretion to grant a renewal of the writ, including whether the plaintiff had acted promptly in applying for the renewal, whether the delay in filing the writ was reasonable, and whether the defendant would suffer substantial injustice if the writ were not renewed.

The court held that the plaintiff had not demonstrated good reason to renew the writ, as the delay in filing the writ was not reasonable. The court found that the plaintiff had not acted promptly in applying for the renewal, and that the defendant would suffer substantial injustice if the writ were renewed. The court also held that the defendant had not acted unreasonably in delaying the filing of the defence, as the plaintiff had not provided any evidence to support its claim. As a result, the court set aside the order of the Deputy Registrar and dismissed the proceeding.

In summary, the court held that the plaintiff had not demonstrated good reason to renew the writ, and that the delay in filing the writ was not reasonable. The court found that the plaintiff had not acted promptly in applying for the renewal, and that the defendant would suffer substantial injustice if the writ were renewed. The court set aside the order of the Deputy Registrar and dismissed the proceeding.

Orders

Orders of the court

1. The order of the Deputy Registrar made on 27 May 2004 renewing the claim in this proceeding is set aside

2. The proceeding is dismissed

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:	Capima Pty Ltd & Others v Hansen [2005] QSC 208
PARTIES:	CAPIMA PTY LTD (ACN 010 682 934) as Trustee of the STEVENS FAMILY TRUST (first plaintiff/respondent) THOMAS POWELL STEVENS (second plaintiff/respondent) JOHN BRIAN STEVENS (third plaintiff/respondent) ELSIE JANETTE STEVENS (fourth plaintiff/respondent) DEBORAH JEANNE STEVENS (fifth plaintiff/respondent) v TREVOR HANSEN (defendant/applicant)
FILE NO/S:	BS4761 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	27 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2005
JUDGE:	Mullins J
ORDER:	1. The order of the Deputy Registrar made on 27 May 2004 renewing the claim in this proceeding is set aside 2. The proceeding is dismissed
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – renewal of originating process – Uniform Civil Procedure Rules r 24(2) – review of registrar’s decision to renew the writ on an ex parte application – whether there was good reason to renew the writ UCPR r 24 Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 Van Leer Australia Pty Ltd v Palace Shipping KK (1979) 180 CLR 337
COUNSEL:	A Vasta QC and FG Forde for the plaintiffs/respondents RG Bain QC and MR Hodge for the defendant/applicant
SOLICITORS:	Neumann & Turnour for the plaintiffs/respondents Praeger Batt Solicitors for the defendant/applicant