Chavez v Moreton Bay Regional Council - [2009] QSC 179

SUPREME COURT OF QUEENSLAND

CITATION:

Chavez v Moreton Bay Regional Council [2009] QSC 179

PARTIES:

CHESTER GORDON CHAVEZ
(plaintiff/applicant)
v
MORETON BAY REGIONAL COUNCIL
(defendant/respondent)

FILE NO/S:

BS 10727 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 July 2009

JUDGE:

Chief Justice

ORDER:

1. That the application filed on 17 June 2009 be dismissed.

2. That the plaintiff pay the defendant’s costs, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF THE COURT – TIME – EXTENSION OF TIME – Non compliance with self-executing consent order – entry of judgment – whether time for compliance should be extended

Uniform Civil Procedure Rules 1999 (Qld) r 7, r 280, r 668

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered
Cummings and Anor v Davis and Anor [2001] QCA 293, considered
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, considered
Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd and Ors [2009] QSC 98, cited
Rankin v Agen Biomedical Ltd (1999) 2 Qd R 435, distinguished

COUNSEL:

P J Dunning QC with T F N Pincus for the applicant
T P Sullivan SC with R G Fryberg for the respondent

SOLICITORS:

Everingham Lawyers for the applicant
McInnes Wilson Lawyers for the respondent

CHIEF JUSTICE: Faced with an application for dismissal of his proceeding for want of prosecution, the plaintiff, on 11 May 2009, consented to orders in these terms:

“…
3. The plaintiff provides security for costs in favour of the defendant in the sum of $50,000 by way of a registered first mortgage upon real property on or before 4 pm on 1 June 2009.
…
7. In the event the plaintiff does not comply with any of orders 2-5 inclusive above, and upon the filing of an affidavit by the solicitor for the defendant to that effect, the proceedings be struck out for want of prosecution and the plaintiff shall pay the defendant’s costs of and incidental to the proceedings on a standard basis.
…”

The plaintiff did not comply with order 3. On 2 June 2009, on an ex parte basis, the defendant obtained an order from the Registrar that the proceeding be struck out for want of prosecution.

The plaintiff’s solicitors became aware of that order on 10 June 2009. On 17 June the plaintiff filed an application seeking orders that the time for compliance with the orders of 11 May be extended, and that the order of 2 June be set aside. The plaintiff invokes Rules 7, 280 and 668 of the Uniform Civil Procedure Rules 1999 (Qld).

The circumstances in which the plaintiff failed to comply with order 3 were as follows. The plaintiff’s present solicitors commenced to act for the plaintiff on 8 May 2009. Following the orders of 11…

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: [2009] QSC 179
Decision Date: 7 July 2009

CaseChat Overview and Summary

Chavez v Moreton Bay Regional Council involved a dispute between the plaintiff, Chavez, and the defendant, Moreton Bay Regional Council. The case was heard in the Supreme Court of Queensland, focusing on whether the time for compliance with a self-executing consent order should be extended. The plaintiff had failed to comply with a consent order, leading to the defendant's application for judgment. The central legal issue was whether the court should grant an extension of time for the plaintiff to comply with the consent order.

The court examined the principles governing the extension of time in compliance with court orders. It noted that such extensions are generally disfavored and only granted in exceptional circumstances. The court considered whether the plaintiff had demonstrated any exceptional circumstances justifying an extension. The court found that the plaintiff had not provided sufficient evidence or justification to warrant an extension of time. Consequently, the court dismissed the plaintiff's application for an extension of time.

In reaching its decision, the court emphasised the importance of adhering to court orders and the need for parties to manage their obligations diligently. It concluded that the plaintiff's failure to comply with the consent order was not due to any exceptional circumstances. Therefore, the court dismissed the application and ordered the plaintiff to pay the defendant's costs, to be assessed on the standard basis.

Orders

Orders of the court

1. That the application filed on 17 June 2009 be dismissed.

2. That the plaintiff pay the defendant’s costs, to be assessed on the standard 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:	Chavez v Moreton Bay Regional Council [2009] QSC 179
PARTIES:	CHESTER GORDON CHAVEZ (plaintiff/applicant) v MORETON BAY REGIONAL COUNCIL (defendant/respondent)
FILE NO/S:	BS 10727 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 July 2009
JUDGE:	Chief Justice
ORDER:	1. That the application filed on 17 June 2009 be dismissed. 2. That the plaintiff pay the defendant’s costs, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF THE COURT – TIME – EXTENSION OF TIME – Non compliance with self-executing consent order – entry of judgment – whether time for compliance should be extended Uniform Civil Procedure Rules 1999 (Qld) r 7, r 280, r 668 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered Cummings and Anor v Davis and Anor [2001] QCA 293, considered FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, considered Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd and Ors [2009] QSC 98, cited Rankin v Agen Biomedical Ltd (1999) 2 Qd R 435, distinguished
COUNSEL:	P J Dunning QC with T F N Pincus for the applicant T P Sullivan SC with R G Fryberg for the respondent
SOLICITORS:	Everingham Lawyers for the applicant McInnes Wilson Lawyers for the respondent