Costello v Costello

SUPREME COURT OF QUEENSLAND

CITATION: 

Costello v Costello [2005] QSC 160

PARTIES: 

PETER MICHAEL COSTELLO
(plaintiff)
v
PATRICK JOHN FERGUS COSTELLO
(defendant)

FILE NO/S: 

SC No 502 of 1999

DIVISION: 

Trial

PROCEEDING: 

Application

ORIGINATING 

Supreme Court at Townsville

COURT: 

DELIVERED ON: 

14 June 2005

DELIVERED AT: 

Townsville

HEARING DATE: 

27 May 2005

JUDGES: 

Cullinane J

ORDER: 

1.	That the plaintiff be given leave to proceed with action number 502 of 1999 in the Townsville Supreme Court notwithstanding that no step in the action has been taken for more than two years
2.	Dismiss the defendant’s application to dismiss the action for want of prosecution
3.	That action number 404 of 2004 be dismissed
4.	That the plaintiff pay the defendant’s costs of and incidental to the application for leave to proceed, the application by the defendant to dismiss for want of prosecution and the application to strike out action number 404 of 2004 with costs to be assessed

CATCHWORDS: 

PRACTICE – QUEENSLAND – PRACTICE UNDER RULES OF SUPREME COURT – TIME – where the plaintiff instituted proceedings on 23 June 1999 against the defendant seeking damages for breach of contract – where last step in the action was taken on 27 February 2001 – where plaintiff deposes that delay due to financial and health problems – where plaintiff’s explanation for delay unchallenged – where defendant did not place any material before the Court suggesting any specific prejudice arising out of the delays which have occurred – whether leave to proceed against the defendant pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 should be granted – whether proceedings should be dismissed for want of prosecution

Uniform Civil Procedure Rules 1999 (Qld), r 389

Tyler v Custom Credit Corp Ltd [2000] QCA 178, CA No
9466 of 1999, 19 May 2000, considered

COUNSEL: 

A J Moon for the plaintiff
D O’Brien for the defendant

SOLICITORS: 

Suthers Taylor for the plaintiff
W T Purcell Chadwick and Skelly for the defendant

1. There are two applications before the Court. One is by the plaintiff seeking leave to proceed pursuant to rule 389 of the Uniform Civil Procedure Rules 1999 (Qld). The other is by the defendant seeking that the action be struck out for want of prosecution.

2. The plaintiff instituted proceedings on 23 June 1999 against the defendant, who is his brother, seeking damages for breach of contract and on other grounds. The claim arises out of a contract for the sale of a grazing property which was entered into in early April 1998. The defendant was the vendor and the plaintiff was the purchaser. Essentially the claim relates to a failure by the defendant to disclose the right of a mining company to pass through the property.

3. A detailed chronology of the matter up until the time the last step in the action was taken is to be found in an attachment to the affidavit of Graham Vincent Skelly, solicitor for the defendant.

4. The plaintiff deposes to the fact that…