Emerald Forest Pty Ltd & Ors v. Bruderle

[2009] QSC 79

[2009] QSC 79

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

Claim No 291 of 2005

EMERALD FOREST PTY LTD AND ORS	Respondents (Plaintiffs)
and
DIETHARDT EUGEN BRUDERLE AND ANOR	Applicants (Defendants)

CAIRNS

..DATE 03/04/2009

JUDGMENT

HIS HONOUR:  This is an application by the defendant in the matter for an adjournment of the trial which has been listed for hearing to commence on the 14th of April 2009.  The dates for hearing were allocated on the 8th of December 2008, and after that date, there was an exchange of further amended pleadings which refined the relief sought in the action.

The application is brought now some 11 days before the commencement of the hearing on the basis that the solicitor retained by the applicants is unable to continue to act, because of the solicitor's father's illness.  That state of affairs was indicated on the 25th of March 2009.  It was accompanied by the advice from the solicitors that another solicitor should be retained, and that the solicitors would arrange for that to happen and to transfer the file.

The letter from the solicitors noted that the applicants did not wish for an alternative solicitor to be retained.  The explanation given by the applicants here is that this is a complex commercial dispute and that a solicitor would not be able to take over the running of the trial at short notice.  I disagree with that assessment of the case, which is based on a review which I have made of the amended pleadings as they presently stand.

I should indicate that this claim was commenced on the 6th of July 2005, almost four years ago.  Its progress has been characterised by amendments to the pleadings, by applications for discovery and request for particulars.  As a consequence, the documentation in the file has grown to quite alarming levels.  A further amended statement of claim was delivered on the 13th of February 2008.  The amended pleading in response to that was not filed until the 22nd of January 2009 and that was accompanied, two months later, by an amended counterclaim filed on the 20th of March 2009.

So there has been a considerable lapse in time during which the plaintiffs' case had been identified to the applicants, and during which time the applicants had the opportunity to take legal advice and to mount any challenge they wished to make.  The details of the defence are set out quite clearly in the amended defence filed on the 22nd of January 2009.  The issues that are identified in the pleadings are relatively limited in their scope.

The dispute centres upon the formation of the plaintiff company and its purpose, being the purchase of land in Queensland.  The purchase of land took place on the 12th of January 1998, more than 10 years ago.  The purchase of the land and the conduct of the business for which the land was purchased has been the topic of various discussions.  The first discussion identified in the pleadings took place in July of 1997.  There were other conversations in August 1997 and between August and November 1997.

Those discussions, as I've indicated, were undertaken by telephone calls and by facsimile transmissions.  There were face to face discussions between second and third plaintiffs and the first defendant in Australia between November and December 1997 and, of course, there have been ongoing discussions about the conduct of the business thereafter. But the case centres upon whether, in those discussions that I've identified, representations were made by the first defendant which might be characterised as such, at law, and as being made negligently or falsely for the purpose of having the plaintiffs rely upon them to enter into the purchase.

So the issue really comes down to matters of credibility as to whether the conversations were held, whether the content of the conversations amounted to representations or not, and whether the plaintiffs acted in reliance upon them, or whether they made their own judgment, and whether the representations were no more than responses to queries raised by the defendants.

There is very little scope for other witnesses to have heard or to be parties to those particular conversations.  So the issue ultimately depends upon the credibility of the parties, and the terms of the conversations.  As I mentioned before, these have been well rehearsed in the pleadings and amended pleadings along the course of the development of the case to this point.

There are a number of documents which will, no doubt, be relied upon to indicate the course of the conduct of the business, and there'll be, no doubt, financial documents and valuation reports which go, essentially, to questions of damages.  The questions of liability will depend upon credibility going to conversations between the parties themselves.

Having identified the nature of the case in these limited terms, it seems to me no reason why a new solicitor, and particular counsel, would not be able to come to grips with the issues and, at least, to conduct the trial on the question of liability.  I see no reason why the whole trial could not be prepared for and proceeded with in the time available, but certainly, on the issue of liability, the time available is more than ample for a competent lawyer to come to grips with the issues.

The consideration that I must have is the length of time over which this matter has been listed for trial, the fact that a callover has been held since that time and other matters have been set down, in fact, cases from the civil list have been set down as far as August 2009.  If this matter were to be adjourned it would not get a hearing before August and there would be some doubt whether time would be available even then.  If it were to be not able to be listed for August, the next available hearing would be October.

For a trial which relates to issues which came into being in the latter part of 1997, and have been the subject of Court proceedings since July 2005, further delays of that kind would be unconscionable, in my view.  Accordingly, I've come to the view that the matter should proceed on the 14th of April 2009 using such of the time as is available and if there be some difficulty in relation to the determination of damages, which might depend on evidence to come from other parties, then an adjournment to achieve that might be available, depending on the circumstance and in the expectation that shorter time would be available for the conduct of that part of the case.

But the primary matters on which liability turns are of relatively short compass.  I refuse the application for an adjournment of the case for the reasons mentioned

...

HIS HONOUR:  I will order that the plaintiffs costs of incidental to the application be paid by the first defendant, to be assessed on the standard basis, but I'll make no time within which such costs should be paid.  These will probably end up being added to, or subtracted from, whatever costs are ordered as a consequence of the trial.

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