Cox v Nash - [2022] QDC 73

DISTRICT COURT OF QUEENSLAND

CITATION:

Cox & Anor v Nash & Anor [2022] QDC 73

PARTIES:

DAVID LEONARD COX

(first plaintiff)
and
CHRISOPHER JOHN STANLEY COX
(second plaintiff)
v
MICHAEL WILLIAM NASH
(first defendant)
and

SARAH ELIZABETH STANTON

(second defendant)

FILE NO:

3768 of 16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2022

JUDGE:

Sheridan DCJ

ORDER:

1.   The defendants’ application is dismissed.

2. Pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld), leave be granted to the plaintiffs to proceed with the claim.

3.   The parties are to confer with respect to the directions to be made for the further conduct of the matter and submit a draft order by 4.00 pm, 1 April 2022, or failing agreement each party is to submit their draft directions by 4.00 pm, 1 April 2022.

4.   If the parties are unable to agree on the appropriate order as to costs, the defendants are to make submissions on costs limited to 4 pages by 4.00 pm, 4 April 2022 and the plaintiffs are to make submissions on costs limited to 4 pages by 4.00 pm, 8 April 2022.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS - where the proceedings commenced in 2016 – where there has been no step taken in the proceeding for over two years – where the defendants seek an order dismissing the proceeding for want of prosecution – where the plaintiffs make an application for leave to proceed – whether leave should be granted

LEGISLATION:
Uniform Civil and Procedure Rules 1999 (Qld), rr 5, 280, 292, 389, 444
Property Law Act 1974 (Qld), s 179

CASES:
Pittaway v Noosa Cat Australia Pty Ltd [2016] QCA 4; [2016] 2 Qd R 556
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
UBS AG v Tyne (2018) 265 CLR 77

Mango Boulevard Pty Ltd v Spencer [2010] QCA 207

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

COUNSEL:
J Marr for the plaintiffs

B E Codd for the defendants

SOLICITORS:
Craig Ray & Associates for the plaintiffs

Mills Oakley for the defendants

Introduction

There are two applications before the Court. The first, filed by the defendants on 16 December 2021, seeks an order dismissing the proceeding for want of prosecution. The second, filed by the plaintiffs on 11 February 2022, seeks an order for leave to proceed, as no step has been taken in the proceeding for over two years.
Factual Background
The plaintiffs and the defendants own adjoining properties in Windsor. The properties share a common side boundary.
The plaintiffs have jointly owned their property since 1 December 2010; the first plaintiff having owned the property, which was then previously part of a larger lot, since 1976. The defendants have jointly owned…

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: [2022] QDC 73
Decision Date: 25 March 2022

CaseChat Overview and Summary

In the matter of Cox v Nash, the Queensland Supreme Court was tasked with determining two applications filed by the defendants and plaintiffs, respectively, concerning the dismissal of the proceeding for want of prosecution and the grant of leave to proceed. The proceedings originated in 2016 and involved disputes regarding property boundaries and excavation works conducted by the defendants. The plaintiffs alleged that the excavation works had caused land collapse onto their property, leading to potential slope failure and interference with their property's use and enjoyment. The defendants argued for the dismissal of the proceeding due to a lack of progress, while the plaintiffs sought leave to proceed.

The legal issues before the court included whether the defendants' application for dismissal should be granted based on the lack of prosecution and whether the plaintiffs' application for leave to proceed should be allowed despite the lengthy delay. The court had to consider the principles of court supervision, the factors relevant to granting or refusing leave to proceed, and the potential consequences of dismissing the proceeding.

The court concluded that the defendants had not demonstrated that the plaintiffs' action had no prospect of success. It rejected the argument that the refusal of leave to proceed would create a res judicata or issue estoppel, citing relevant case law. The court also noted that while litigation could be distressing for all parties, the defendants' distress did not necessarily outweigh the need for resolution of the ongoing issues. Accordingly, the defendants' application was dismissed, and leave was granted to the plaintiffs to proceed with the claim. The court further directed the parties to confer on further directions and costs.

Orders

Orders of the court

1. The defendants’ application is dismissed.

2. Pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld), leave be granted to the plaintiffs to proceed with the claim.

3. The parties are to confer with respect to the directions to be made for the further conduct of the matter and submit a draft order by 4.00 pm, 1 April 2022, or failing agreement each party is to submit their draft directions by 4.00 pm, 1 April 2022.

4. If the parties are unable to agree on the appropriate order as to costs, the defendants are to make submissions on costs limited to 4 pages by 4.00 pm, 4 April 2022 and the plaintiffs are to make submissions on costs limited to 4 pages by 4.00 pm, 8 April 2022.

Background

Background to the litigation

There are two applications before the Court. The first, filed by the defendants on 16 December 2021, seeks an order dismissing the proceeding for want of prosecution. The second, filed by the plaintiffs on 11 February 2022, seeks an order for leave to proceed, as no step has been taken in the proceeding for over two years. Factual Background The plaintiffs and the defendants own adjoining properties in Windsor. The properties share a common side boundary. The plaintiffs have jointly owned their property since 1 December 2010; the first plaintiff having owned the property, which was then previously part of a larger lot, since 1976. The defendants have jointly owned their property since 23 February 2009. Sometime prior to either of the plaintiffs or the defendants having an interest in their respective properties, excavation to the rear of the defendants’ property had been performed. A survey shows that the excavation face is entirely within the defendants’ property but it forms a common side boundary between the plaintiffs and the defendants and extends for approximately 37 metres. The excavation face ranges in height from about 3.7 metres at the western end and gradually reduces to zero in an easterly direction. In the course of renovating their property, the defendants carried out further excavation works to lay a concrete patio slab along the western side of their home. The excavation was between 1.5 and 2 metres from the excavation face. On 26 February 2014, the plaintiffs wrote to the defendants alleging that the excavation had caused some of their land to collapse onto the defendants’ property. In the letter, the plaintiffs expressed concern that they could not build a fence along the boundary because some of the ground where the fence should go had been removed. The defendants responded, by email sent 5 March 2014, saying they welcomed the opportunity to discuss the issue of the boundary and saying they planned to retain the required areas of their property along with the remaining renovation works. There were further communications between the plaintiffs and the defendants during 2014 and into 2015. Each party appointed solicitors in or about October 2015. The plaintiffs engaged a structural engineer, Daniel Tonino of Malcolm Douglas Consultants, in November 2015. That expert provided a report dated 19 November 2015 and that report was provided by the plaintiffs’ solicitors to the defendants’ solicitors under cover of a letter dated 23 November 2015. In the report, Mr Tonino expressed the opinion that a suitably designed retaining wall should be constructed for the stability of the excavation face to protect the plaintiffs’ property from potential slope failure, the underground services and house foundation settlement and to protect the neighbour’s property from significant soil subsidence. Mr Tonino repeated that view in a further report dated 2 August 2016. Formal proceedings were commenced on 16 September 2016. The plaintiffs’ claim relies on three causes of action against the defendants:(a)Breach of s 179 of the Property Law Act1974 (Qld) as a result of the alleged loss of lateral support caused by the works conducted by the defendants in the proximity of the embankment in or about October 2015, and/or alternatively between 23 February 2009 and 26 February 2014;(b)Negligence arising from the alleged known risk of erosion and/or subsidence of the embankment and the failure of the defendants to construct a retaining wall or other adequate support structure to support and stabilise the embankment; and (c)Nuisance arising from the failure of the defendants to construct an adequate support structure to stabilise and prevent erosion and subsidence of the embankment which constitutes an unreasonable interference in the plaintiffs’ enjoyment and use of their property.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The most that needs to be said is that the defendants have not satisfied me that the plaintiffs’ action has no prospect of success.Conclusion of Litigation In the course of oral submissions, having regard to one of the factors referred to by Atkinson J in Tyler, the defendants’ counsel submitted that if leave was not granted then that would be the end of the dispute between the parties and the plaintiffs would be precluded from litigating the matter further. It was submitted that this would create an estoppel, that it was potentially res judicata and it would be an abuse of process following the principles identified in Port of Melbourne Authority v Anshun[7] and reaffirmed by the High Court in UBS AG v Tyne.[8][7](1981) 147 CLR 589.[8](2018) 265 CLR 77. Leave was granted on the hearing of the applications for further submissions to be made on that legal issue. Given the conclusion that I have come to, it is not necessary to deal at any length with these submissions. It is sufficient for present purposes to observe that none of the authorities to which I was referred by the defendants’ counsel justify the conclusion that the refusal of leave to proceed, or even dismissal of the proceedings, would create a res judicata or issue estoppel. The submission is contrary to the decision and reasoning of the Court of Appeal in Mango Boulevard Pty Ltd v Spencer[9]; upon which counsel for the plaintiffs relied. [9][2010] QCA 207 [56], [113]-[116]. It is unclear how an Anshun estoppel might arise, and the defendants did not suggest any. The present and future facts are likely to be far removed from the situation and the principles discussed in either Tomlinson v Ramsey Food Processing Pty Ltd[10] or UBS.[11][10](2015) 256 CLR 507.[11](2018) 265 CLR 77. In any event, it is not clear to me why the submission necessarily works in favour of the defendants. If the proceedings were to be concluded by an order, that makes the defendants’ task of striking out the proceedings even more onerous; assuming, as here, that there is a serious dispute and on-going issues which require resolution.Prejudice In support of the application by the defendants, the female defendant has disposed to the impact of the ongoing litigation. Ms Stanton refers to the inability to move forward in their lives as a result of this proceedings. Ms Stanton refers to living in constant fear of the first plaintiff entering her home and causing damage. Ms Stanton refers to being harassed, of the first plaintiff entering her property uninvited and of unwanted solicitor correspondence. Ms Stanton refers to their decision to relocate and of their need to sell their home but of their inability to do so because of these unresolved proceedings. In submissions, reference was made to the disparity between the impact of these proceedings on the defendants, who reside in the property as their principal place of residence, and the plaintiffs, for whom the residence is an investment property. However, and this is not to downplay the defendants’ distress, it is well known that litigation can be personally distressing for all parties and, although appalling if the conduct of the first plaintiff occurred in the way described, it might reflect his own distress at the circumstances he has been advised he risks.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cox & Anor v Nash & Anor [2022] QDC 73
PARTIES:	DAVID LEONARD COX (first plaintiff) and CHRISOPHER JOHN STANLEY COX (second plaintiff) v MICHAEL WILLIAM NASH (first defendant) and SARAH ELIZABETH STANTON (second defendant)
FILE NO:	3768 of 16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 March 2022
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2022
JUDGE:	Sheridan DCJ
ORDER:	1. The defendants’ application is dismissed. 2. Pursuant to r 389(2) of the *Uniform Civil Procedure Rules 1999* (Qld), leave be granted to the plaintiffs to proceed with the claim. 3. The parties are to confer with respect to the directions to be made for the further conduct of the matter and submit a draft order by 4.00 pm, 1 April 2022, or failing agreement each party is to submit their draft directions by 4.00 pm, 1 April 2022. 4. If the parties are unable to agree on the appropriate order as to costs, the defendants are to make submissions on costs limited to 4 pages by 4.00 pm, 4 April 2022 and the plaintiffs are to make submissions on costs limited to 4 pages by 4.00 pm, 8 April 2022.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS - where the proceedings commenced in 2016 – where there has been no step taken in the proceeding for over two years – where the defendants seek an order dismissing the proceeding for want of prosecution – where the plaintiffs make an application for leave to proceed – whether leave should be granted
LEGISLATION:	Uniform Civil and Procedure Rules 1999 (Qld), rr 5, 280, 292, 389, 444 Property Law Act 1974 (Qld), s 179
CASES:	Pittaway v Noosa Cat Australia Pty Ltd [2016] QCA 4; [2016] 2 Qd R 556 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 UBS AG v Tyne (2018) 265 CLR 77 Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
COUNSEL:	J Marr for the plaintiffs B E Codd for the defendants
SOLICITORS:	Craig Ray & Associates for the plaintiffs Mills Oakley for the defendants