Edgarange Pty Ltd v Pretirement Villages Pty Ltd

[2012] QDC 365

[2012] QDC 365

DISTRICT COURT

CIVIL JURISDICTION

ROBIN QC

No 918 of 2011

EDGARANGE PTY LTD

Plaintiff

and

PRETIREMENT VILLAGES PTY LTD

and

SSE CIVIL CONSULTANTS

and

SEAN JAMES STRINGER

Defendant

First Third Party

Second Third Party

BRISBANE

..DATE 30/11/2012

ORDER

Uniform Civil Procedure Rules 1999 r 203(2)

Separate determination of issues between defendant and third parties recently added by leave ordered, subject to review - plaintiff ought not at this stage to lose the advantage of fixed trial dates
The court has refused the defendant's application to vacate

trial dates which some time ago were fixed, commencing the 4th

of February next year.  The reasons, published at

[2012] QDC 326, show it was anticipated that there might be

difficulties in achieving a full trial of the proceeding on

those dates, given the embryonic third party proceedings the

defendant had in mind.

The court was unimpressed with the defendant's slowness in

getting third party proceedings underway that has happened.

The Court set deadlines which have to be met if the

defendant is to have the advantage of recourse against the

third parties open.  Needless to say, the defendant was in

that position because it needed leave to bring the third party

proceedings.

The corporate third party was served wihtin the short time

allowed.  The individual third party was not for which the

defendant cannot fairly be blamed in the circumstances.  Both

third parties appear today represented by Mr Ashton.  Today

was the deadline for the company's pleading.  Mr Stringer will

have an extra week. 

Matters aren't straightforward.  Mr Ashton informs the court

that his clients have in mind the possibility of bringing in a

fourth party, also that he is dissatisfied with the pleading

he has to respond to.

The main issue today has been the defendant's application on a

preset mention date to vacate the trial dates, I'm not prepared to take that course.  The published reasons record

the impression I have, which has been confirmed today,

that it is a very close call whether the third party issues

ought to be tried together with those in the claim.  My view

is that the plaintiff ought not to be further delayed.

Accordingly an order has been made which for the moment

separates out the third party issues so that the trial can go

ahead.  It is necessary for the court to make that order under

rule 203(2).

It may well be that some further order can be made to permit

discrete identified issues involving the third parties to be

determined at the trial if that can be shown to be

conveniently possible, perhaps even on the basis of modest

delay.  This can be kept under review.

I have given the parties the best assurance I can that the

same Judge will hear the trial and the third party proceedings

when they're ready so that one can be pretty confident the

apocryphal risk of litigants falling between stools is not a

real risk at all here.  I accept what Mr Ashton and

Mr O'Higgins say about the sets of issues being largely

separate.

It's worth placing on record another matter that may occupy

the court's attention, namely an application by the third

parties for security for costs; that will be by a separate

application.

Those are the reasons for the court's ordering in terms of the

draft which I initial, providing:

“THE ORDER OF THE COURT IS THAT:

1. The trial to commence on 4 February 2013 but those issues between the Defendant and the First Third Party and the Second Third party (together “the Third Parties”) not be tried unless the Court otherwise orders.

1. The Third Parties make any requests for particulars of the Defendant’s Third Party Amended Statement of Claim by 7 December 2012.

1. The Third Parties to file and serve their Notice of Intention to Defend and Defence(s) by 24 January 2013 or 14 days after the provision of particulars whichever is later.

1. The Defendant to file any reply to the Third Parties’ Notice of Intention to Defend and Defence(s) within 14 days of the operative deadline pursuant to the preceding paragraph.

1. The Defendant and the Third Parties conduct mutual disclosure by 31 January 2013.

1. Any expert reports upon which the parties intend to rely at the trial be filed and served by 31 January 2013.

1. The matter to be listed for further review on 29 January 2013.

1. The Plaintiff’s costs of today over and above such costs as would be incurred on the non-contentious mention be its costs in the cause.  Otherwise costs are reserved.

1. Liberty to apply.”

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