Dunseath v Febriway Pty Ltd - [2001] QCA 104

[2001] QCA 104

COURT OF APPEAL

McMURDO P
McPHERSON JA
BYRNE J

Appeal No 11310 of 2000

EARL ROSS DUNSEATH and
URSULA MERLE DUNSEATH Applicants (Plaintiffs)

and

FEBRIWAY PTY LTD Not a party to the appeal
(First Defendant)
and

EMMANUEL DRIVAS Not a party to the appeal
(Second Defendant)
and

GEORGE FRINTZILAS and
MARIA FRINTZILAS Not a party to the appeal
(Third Defendant)
and

JOHN FRINTZILAS and
ROSALIA FRINTZILAS Not a party to the appeal
(Fourth Defendant)
and

CHRIS KAZANIS Respondent
(Fifth Defendant)

BRISBANE

..DATE 15/03/2001

JUDGMENT

THE PRESIDENT: Justice McPherson will deliver his reasons first.

McPHERSON JA: This is an application for leave to appeal against an order striking out as against the fifth defendant an action commenced by the plaintiffs in the District Court in 1991. The action arose out of the sale to the plaintiffs, who now reside in New Zealand, of a fruit market. The sale took place in 1988 and the fifth defendant was the vendor's agent. There were some four vendors and they are the other defendants in the action.

The action is founded on an alleged oral representation that the business was in fact more profitable than was disclosed in the profit and loss statement. After the plaint issued on 12 August 1991, it was amended in September of that year and, by 5 August 1993, the action had progressed to the stage where the fifth defendant had answered the plaintiff's interrogatories.

Nothing more happened after that until 19 April 1995 when a notice under O.90, r.9 of intention to proceed in the action was given by the plaintiffs. Despite that notice, nothing was done except that on 14 January 1997, the plaintiffs answered interrogatories which had been delivered to them by the fifth defendant in 1995.

The last correspondence between the solicitors for these parties consisted of a communication on 15 August 1997. The action then lay dormant until 14 November 2000 when the fifth defendant filed an application to strike out the plaintiffs' action as against the fifth defendant.

On 20 November 2000, the order against which leave to appeal is now sought was made by the Chief Judge of the District Court. On 18 December 2000, the period of 28 days for appealing against that order expired and, on 21 or 22 December, an application was filed seeking an extension of time within which to appeal. No explanation, except perhaps that the plaintiffs had engaged new solicitors, was advanced for that application or extension.

It seems likely that what prompted the sudden interest by the plaintiffs in the action was the arrival of an attempt by the respondent to enforce against them a costs order which the respondent had obtained in consequence of the striking out of the action against them.

The plaintiffs claim they are in a position of some financial difficulty and have been saving to run the action. That, however, is an item of information which has come to us in support of the application for leave…

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: [2001] QCA 104
Decision Date: 15/03/2001

CaseChat Overview and Summary

The case of Dunseath v Febriway Pty Ltd involved an application for leave to appeal against an order that struck out the plaintiffs' action against the fifth defendant. The action arose from the sale of a fruit market in 1988 and was based on an alleged oral representation regarding the profitability of the business. The plaintiffs, Ross and Ursula Merle Dunseath, sought leave to appeal against the order made by the Chief Judge of the District Court, which dismissed their action for want of prosecution.

The legal issues the court needed to decide were whether the plaintiffs had a sufficient prospect of success on appeal and whether the primary judge's exercise of discretion to refuse an adjournment and strike out the action was appropriate. The court considered the plaintiffs' long delay in progressing the action, the lack of any sensible instructions provided to their solicitor for opposing the application to strike out, and the absence of any material demonstrating a commitment to proceed with the litigation.

The court found that the primary judge was correct in refusing the adjournment and striking out the action. The plaintiffs' delay in taking any steps to progress the action for over three years, coupled with their vague request for an adjournment without any clear explanation or proposed action, demonstrated a lack of intention to proceed with the action. The court held that the primary judge's decision to dismiss the proceedings for want of prosecution was justified and that the plaintiffs' prospects of success on appeal were extremely slight. The application for leave to appeal was refused with costs.

Orders