Commonwealth Bank of Australia v Carney

[2013] QSC 2

SUPREME COURT OF QUEENSLAND

CITATION:

Commonwealth Bank of Australia v Carney [2013] QSC 2

PARTIES:

COMMONWEALTH BANK OF AUSTRALIA

(applicant)

v

CARNEY

(respondent)

FILE NO/S:

BS8641 of 2010

DIVISION:

Trial

PROCEEDING:

Application for decision on the papers without an oral hearing

DELIVERED ON:

29 January 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Peter Lyons J

ORDER:

1.   Application dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TIME – DELAY SINCE LAST PROCEEDING – where plaintiff commenced action in 2010 – where a step was last taken in the action on 15 September 2010 – where plaintiff applied on the papers for leave to proceed – where defendant has not been named as respondent – where there is no evidence of effective service of the application on the defendant – whether leave should be granted to proceed

Uniform Civil Procedure Rules 1999 (Qld) r31, r 389, r 489, r 492, r 494

SOLICITORS:

Gadens Lawyers for the Plaintiff

1. Peter Lyons J: The plaintiff commenced this action in August 2010, seeking to recover an amount alleged to be owed to it, and possession of land said to be mortgaged to it to secure the debt.  The first defendant was then a bankrupt, recognised in his description in the title to the action. 

1. The first defendant is no longer a bankrupt. The plaintiff seeks to amend the claim and the statement of claim to reflect the first defendant’s current status. It also seeks leave to proceed under r 389 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).  The material indicates that a step was last taken in the action on 15 September 2010. 

1. The plaintiff has made this application as an application to be determined on the papers without an oral hearing, pursuant to r 489 of the UCPR. 

1. Rule 31(3) of the UCPR requires that an application within a proceeding must name as respondent, any party whose interest may be affected by the granting of the relief sought.  Neither defendant was named as a respondent in the application.  Rule 31(5) requires that an application be served on each respondent.  There is no evidence of service of the application on either of the defendants.

1. Rule 492 makes provision for a response by a respondent to an application to be determined on the papers without an oral hearing.  Rule 494 permits a respondent to require an oral hearing.

1. It is clear that the interests of the defendants may be affected by the orders sought by the plaintiff. At present, r 389 precludes the plaintiff from taking further any step in the proceeding.

1. Rule 389(2) authorises the court to make an order permitting a party to take a step in the action more than two years after the last step was taken, without notice to any other party.  However it is unusual for the court to make such an order, without other parties being given the opportunity to be heard.  In the present case, no submission has been advanced in support of that course; and it is not apparent why it should be followed.

1. I gave consideration to adjourning the matter to permit service to be effected.  That may have the consequence that the defendants require an oral hearing; and because I have embarked on a consideration of a matter, that it should be heard by me.  There may then be difficulties in arranging a hearing date.

1. It seems to me that the better course is to dismiss the application. 

Conclusion

1. Accordingly, I dismiss the application.