Eob Pty Ltd v White - [2020] QDC 237

DISTRICT COURT OF QUEENSLAND

CITATION:

EOB Pty Ltd v White & Anor [2020] QDC 237

PARTIES:

EOB PTY LTD (ACN 132 733 033)

(plaintiff)

v

JOSEPHINE WHITE

(first defendant)

and
BRAYBEX PTY LTD (ACN 011 016 667)
(second defendant)
and
IN2 ACCOUNTS PTY LTD ATFVASJ VENTRUE TRUST
(first defendant by counter-claim)
and
ANITA JAKIS

(second defendant by counter-claim)

FILE NO:

180/15

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

18 September 2020

DELIVERED AT:

Southport

HEARING DATE:

11 September 2020

JUDGE:

Kent QC DCJ

ORDER:

Order that the plaintiff is granted leave to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld). There is presently no order as to security for costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where the plaintiff commenced a claim seeking damages for breach of contract in 2015 – where proceedings proceeded normally and without delay until 2016 – where there has been no step taken in the proceeding for over two years – where the plaintiff made an application to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff submits that the delay was caused by its impecuniosity and the defendant’s conduct – whether the circumstances relied upon by the plaintiff satisfy the non-exhaustive list of factors in Tyler v Custom Credit Corp Ltd [2000] QCA 178.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – DELAY – where the plaintiff submits that the delay in taking a step in the proceeding was caused by its impecuniosity and the conduct of the defendant – where the plaintiff submits that it is now in a position to continue the litigation – whether leave to take a step should be conditional upon the plaintiff giving security for costs.

LEGISLATION:

Uniform Civil Procedure Rules1999 (Qld), r 389.

CASES:

Australia Abalone World Pty Ltd v Yin [2020] QDC 190.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
Dempsey v Dorber [1990] 1 Qd R 418.
Tyler v Custom Credit Corp Ltd [2000] QCA 178.

COUNSEL:
B Strangman for the Applicant

N Shaw for the Respondent

SOLICITORS:
Hartnett Lawyers for the Applicant

Rose Litigation Lawyers for the Respondent

Background

This is primarily an application for leave to take a step in the proceeding, despite a considerable delay.
The action commenced by claim of statement of claim filed on 10 June 2015. It seeks damages for breach of contract and other consequential orders arising out of the first defendant’s previous employment with the plaintiff and the contractual arrangements between the parties including what is said to be a restraint of trade clause in the relevant agreement.
Broadly, as the applicant/plaintiff submits, the first defendant was the Gold Coast manager of the plaintiff’s…

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: [2020] QDC 237
Decision Date: 18 September 2020

CaseChat Overview and Summary

The case of Eob Pty Ltd v White involved a claim for damages for breach of contract, which was commenced by the plaintiff in 2015. The proceedings progressed without delay until 2016, after which no steps were taken in the matter for over two years. The plaintiff subsequently applied for leave to take a step in the proceedings under r 389 of the Uniform Civil Procedure Rules 1999 (Qld). The plaintiff argued that the delay was due to its financial difficulties and the defendant's conduct, and that it was now in a position to continue the litigation. The defendants contended that any grant of leave should be conditional upon the plaintiff providing security for costs, citing the case of Australian Abalone.

The court was required to determine whether the circumstances relied upon by the plaintiff satisfied the non-exhaustive list of factors outlined in Tyler v Custom Credit Corp Ltd [2000] QCA 178, and whether the grant of leave should be conditional upon the plaintiff providing security for costs. The court concluded that the leave to take a step should be allowed, as the plaintiff's prospects of success in the action were reasonable, and there was no disobedience of court orders or directions. The court found that the delay was solely attributable to the plaintiff, and while the reasons for the delay were not the best, they were at least logical. The court did not find any identifiable prejudice to the defendants, other than the inherent prejudice of a significant delay in the proceedings.

The court granted the plaintiff leave to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld). The court did not make any order as to security for costs, as there was no formal application for security for costs before the court at that time.

Orders

Orders of the court

Order that the plaintiff is granted leave to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld). There is presently no order as to security for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally the defendants submit that if leave is granted, the plaintiff’s evidence discloses a level of financial difficulty and thus security for costs should be given as a condition of any grant of leave (although there is not presently a formal application for security for costs before the court). Reference is made to the orders in Australian Abalone referred to above, where this was done. There are also, unsurprisingly, arguments as to costs. Consideration In my conclusion the leave to take a step should be allowed. In terms of the helpful but non-exhaustive list of factors in Tyler, the relevant events took place about six years ago. There was no significant delay before the litigation was commenced, and it was proceeded with relatively quickly up to the point when the plaintiff ceased doing so, apparently in the balancing process referred to above, where it considered that further debates about disclosure were expensive and non-productive; and generally the plaintiff was better to attempt to recover its financial situation by attending to its business rather than expend time and expense on further pursuit of the litigation. It is, of course, correct to observe, as the defendants do, that the decision was not communicated to the defendants, who thereupon have had the litigation hanging over them for some time. It is a case where the plaintiff’s prospects of success in the action are at least reasonable, in my conclusion. There has not been disobedience of court orders or directions. The delay is somewhat lengthy, and is solely attributable to the plaintiff in the way outlined above. I could not at this stage, on the current information, reach a conclusion about the particular degree of impecuniosity of the plaintiff at any particular stage. Nor could I reach a conclusion as to whether the defendants are responsible for that impecuniosity (which would of course be a significant factor). However, I do accept the plaintiff’s submission that the business decision taken at the time, as established by the affidavit material, was at least a logical reason for the deliberate choice to not pursue the litigation more quickly. If there is a continuum of quality of such reasons for delay, in my view the explanation proffered here falls at neither the best nor the worst end of such reasons. It is at least better than the reasons in Dempsey v Dorber, and is probably significantly better than the reasons in Australian Abalone. It is relevant that the litigation between the parties would likely be concluded if the leave to proceed were not given, given the indication that the counter-claim would not be pursued. The litigation has progressed a significant distance; pleadings are closed (at the moment) although an amendment to the plaintiff’s pleadings is quite possible, depending upon further developments including not only the fate of this application but the further argument about disclosure. Finally, there is no identifiable prejudice to the defendants, other than the prejudice which is inherent in any delay of significant time.[6] [6]See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554 to 555 per McHugh J; the very existence of legislated limitation periods exemplifies the presumptive prejudice accruing to a litigant with the effluxion of time.

CITATION:	EOB Pty Ltd v White & Anor [2020] QDC 237
PARTIES:	EOB PTY LTD (ACN 132 733 033) (plaintiff) v JOSEPHINE WHITE (first defendant) and BRAYBEX PTY LTD (ACN 011 016 667) (second defendant) and IN2 ACCOUNTS PTY LTD ATFVASJ VENTRUE TRUST (first defendant by counter-claim) and ANITA JAKIS (second defendant by counter-claim)
FILE NO:	180/15
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	18 September 2020
DELIVERED AT:	Southport
HEARING DATE:	11 September 2020
JUDGE:	Kent QC DCJ
ORDER:	Order that the plaintiff is granted leave to take a step in the proceeding pursuant to r 389 of the *Uniform Civil Procedure Rules 1999* (Qld). There is presently no order as to security for costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where the plaintiff commenced a claim seeking damages for breach of contract in 2015 – where proceedings proceeded normally and without delay until 2016 – where there has been no step taken in the proceeding for over two years – where the plaintiff made an application to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff submits that the delay was caused by its impecuniosity and the defendant’s conduct – whether the circumstances relied upon by the plaintiff satisfy the non-exhaustive list of factors in Tyler v Custom Credit Corp Ltd [2000] QCA 178. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – DELAY – where the plaintiff submits that the delay in taking a step in the proceeding was caused by its impecuniosity and the conduct of the defendant – where the plaintiff submits that it is now in a position to continue the litigation – whether leave to take a step should be conditional upon the plaintiff giving security for costs.
LEGISLATION:	Uniform Civil Procedure Rules1999 (Qld), r 389.
CASES:	Australia Abalone World Pty Ltd v Yin [2020] QDC 190. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Dempsey v Dorber [1990] 1 Qd R 418. Tyler v Custom Credit Corp Ltd [2000] QCA 178.
COUNSEL:	B Strangman for the Applicant N Shaw for the Respondent
SOLICITORS:	Hartnett Lawyers for the Applicant Rose Litigation Lawyers for the Respondent