DISTRICT COURT OF QUEENSLAND
CITATION: Elesanar Constructions Pty Ltd v. Thiess Contractors Pty Ltd [2001] QDC 293 PARTIES: ELESANAR CONSTRUCTIONS PTY LTD (Plaintiff)
v.
THIESS CONTRACTORS PTY LTD (Defendant)FILE NO/S: Plaint 453 of 1999 DIVISION: PROCEEDING: Applications ORIGINATING COURT: District Court Brisbane
DELIVERED ON: 20 November 2001 DELIVERED AT: Brisbane HEARING DATE: 5 November 2001 JUDGE: McGill DCJ ORDER: Leave to the plaintiff to proceed. Defendant’s application dismissed. Plaintiff to pay the costs. CATCHWORDS: PRACTICE – Leave to Proceed – dismissal for want of prosecution – 2½ year delay in 7½ year old claim – commercial dispute – recollection evidence not paramount – fault of solicitor – no prejudice – leave granted – Uniform Civil Procedure Rules r. 389(2)
Tyler v. Custom Credit Corporation Ltd [2000] QCA 179 - applied
William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 - cited
Quinlan v. Rothwell [2001] QCA 176 - considered
Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 – cited
I.H. Demptster Nominees Pty Ltd v. Chemgoods Pty Ltd [1993] 2 Qd.R. 377 – citedCOUNSEL: S.J. Lee for plaintiff
D.G. Clothier for defendantSOLICITORS: Andrew Abaza for plaintiff
Clayton Utz for defendants
This is an application by the plaintiff for leave to proceed, no step having been taken in the proceedings for upwards of two years: r.389(2). The last step was an application for summary judgment which was dismissed by Wilson J on 22 January 1999. Her Honour ordered the action be remitted to the District Court, which occurred the following month, but that did not count as a step: I.H. Demptster Nominees Pty Ltd v. Chemgoods Pty Ltd [1993] 2 Qd.R. 377. The application was opposed by the defendant, which has filed a cross-application to dismiss for want of prosecution. It was accepted on both sides that that application depended on the outcome of the plaintiff’s application.
Nature of the action
The plaintiff claims for money owing pursuant to a contract between the parties. The contract was for the plaintiff to supply and deliver bulk road base material to the defendant. The material was delivered between January and April 1994. A dispute arose later in the year. Broadly speaking, the plaintiff’s claim, which is for a total of $143,300.72, is made up of three components: $23,587.10 as an extra charge imposed by the plaintiff as a result of its having to comply with a direction from the defendant to use a particular type of truck to deliver the material; $32,261.55 for the supply of cement mixed into the material (where there is a dispute as to the amount of cement for which the defendant is liable to pay), and $87,452.07 claimed as underpayments on various disputed invoices. The defendant denies these sums are payable, and also asserts that it has a set off and counter-claim against the plaintiff because of the supply of defective material.
The nature of the various claims, and defences of the defendant to them, and some discussion…
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- Case
- [2001] QDC 293
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the plaintiff should be granted leave to proceed with its action despite the delay and whether the delay had caused prejudice to the defendant. The court considered various factors in determining whether to grant leave to proceed, including the age of the claim, the reasons for the delay, and whether the delay had caused prejudice to the defendant. The court found that the delay had not resulted in prejudice to the defendant and that there was no injustice or unfairness to either party if the proceeding was allowed to continue. The court also considered the defendant's argument that the plaintiff's recollection evidence was not paramount and that the fault of the solicitor should not be taken into account. The court found that these arguments were not relevant to the determination of whether to grant leave to proceed. The court granted leave to the plaintiff to proceed with its action and dismissed the defendant's application. The plaintiff was ordered to pay the costs.
In reaching its decision, the court considered the case of Tyler v Custom Credit Corporation Ltd, which set out a number of factors that are relevant to the determination of whether to grant leave to proceed. The court found that the factors in Tyler applied to the circumstances of this case. The court considered the age of the claim, the reasons for the delay, and whether the delay had caused prejudice to the defendant. The court found that the delay had not resulted in prejudice to the defendant and that there was no injustice or unfairness to either party if the proceeding was allowed to continue. The court also considered the defendant's argument that the plaintiff's recollection evidence was not paramount and that the fault of the solicitor should not be taken into account. The court found that these arguments were not relevant to the determination of whether to grant leave to proceed. The court granted leave to the plaintiff to proceed with its action and dismissed the defendant's application. The plaintiff was ordered to pay the costs.
The court's final orders were that leave be granted to the plaintiff to proceed with its action, the defendant's application be dismissed, and the plaintiff pay the costs. The court found that the delay in commencing the action was largely attributable to the plaintiff's solicitor not carrying the matter forward as he should have. The court also found that the delay had not resulted in prejudice to the defendant and that there was no injustice or unfairness to either party if the proceeding was allowed to continue. The court considered the factors set out in Tyler v Custom Credit Corporation Ltd and found that they applied to the circumstances of this case. The court's decision to grant leave to the plaintiff to proceed with its action was based on a balanced consideration of all the relevant factors.
Orders
Orders of the court
Leave to the plaintiff to proceed. Defendant’s application dismissed. Plaintiff to pay the costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
A convenient and authoritative summary of most of the factors which are relevant to the determination of whether to give leave to proceed under r.389 may be found in the judgment of Atkinson J, with whom the other members of the court agreed, in Tyler v. Custom Credit Corporation Ltd [2000] QCA 179. The factors listed by Her Honour apply in the circumstance of this case in the following way: the facts with regards to the litigation occurred 7½ years ago, and there was a delay of about 3½ years before the action was commenced. There have been no causes of action added in the formal sense. The various claims now being made by the plaintiff, although not properly pleaded in the specially endorsed writ, were adequately ventilated in the course of an application for summary judgment in November 1998. I could not conclude anything either way as to the prospect of the plaintiff’s success in the action. There has been no disobedience by either party of any court orders or directions. The litigation has been characterised by periods of delay, and the delay is attributable to both parties. Accepting that it is particularly the plaintiff’s responsibility to carry the matter forward, this is a case where the defendant was content to allow the matter to drag on even in circumstances where it was the defendant’s responsibility to take the next step. There is no material as to impecuniosity or otherwise on the part of the plaintiff. The litigation between the parties would be concluded by striking out the plaintiff’s claim; the foreshadowed counterclaim on the part of the defendant would now be statute barred. The litigation has not progressed very far; the pleadings are not finalised or even close to being finalised. The delay was caused by the plaintiff’s lawyer being dilatory. There has been some explanation for the delay, but it has not been comprehensive except in the sense that it is generally attributable to the plaintiff’s solicitor not having carried the matter forward as he ought to have. Plainly that explanation covers a great deal of the relevant period. Part of the overall delay since the cause of action arose may be explained by attempts to resolve the matter by negotiation, but I am unable to conclude that that was the cause of the bulk of the delay, or indeed any particular part of it. No basis has been established which would excuse the delay since February 1999. I do not consider that the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial. It is for the plaintiff to show that there is good reason for excepting this particular proceeding from the general prohibition imposed by the rules: William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 at 496; Tyler (supra) at para. 5. I am satisfied that the continuation of the proceeding would not involve injustice or unfairness to one of the parties by reason of the delay. The facts of Tyler are interesting. The action had been commenced in November 1986 and leave to proceed was given almost 12 years later. The action was in respect of a dispute which arose out of facts occurring in June to October 1986, so the action was commenced reasonably promptly, and was one of a number of proceedings commenced between the parties. A new cause of action was added just days before the expiration of the 6 year limitation period. The litigation was characterised by long periods of delay, although not all of it was caused by the plaintiff. It appears that no step was taken for about 3½ years before the application for leave to proceed, and during that period the defendant had failed to plead to an amended statement of claim which had been delivered on behalf of the plaintiff. The defendant had also failed to progress third party proceedings which it had commenced by delivering third party notices in April 1996, to which appearances had been entered in May 1996. That action was further advanced than the present action, and the matter was said to have been virtually ready for trial. Both parties failed to comply with directions made on one occasion, and the plaintiff had also failed to comply with a different order for further discovery.