SUPREME COURT OF QUEENSLAND
CITATION:
Field v Luxor Products Pty Ltd & Anor [2009] QSC 218
PARTIES:
MARK ANTHONY FIELD trading as M & N WATERPROOFING & RESTORATION SERVICES (BN 6535811)
(plaintiff/applicant)
v
LUXOR PRODUCTS PTY LTD ACN 002 301 886
(first defendant/first respondent)
AND
GABR SAYED ELGAFI
(second defendant/second respondent)
FILE NO:
BS 10122 of 2005
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 August 2009
DELIVERED AT:
Brisbane
HEARING DATE:
20 July 2009
JUDGE:
P Lyons J
ORDER:
1. The claim is dismissed for want of prosecution
CATCHWORDS:
PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the plaintiff is in default due to a failure to comply with previous court orders on a number of occasions – where the defendant seeks an order that the action be dismissed for want of prosecution – where there was a lack of credible explanation for the delay – Consideration of r 5 Uniform Civil Procedure Rules 1999 (Qld) – whether the plaintiff is entitled to commence fresh proceedings after the action has been dismissed while the plaintiff’s claim is still within limitation periods.
Trade Practices Act 1974 (Cth), ss 74G; 74J
Uniform Civil Procedure Rules 1999 (Qld), rr 5; 444Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, considered.
Arc Holdings Pty Ltd v Riana Pty Ltd & Another [2008] QSC 191, mentioned
Birkett v James [1978] AC 297, considered
Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623, considered
Cooper v Hopgood & Ganim [1999] Qd R 113, applied
Ketteman v Hansel Properties [1987] 1 AC 189, considered
Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Piconev AGC (Advances) Limited (1990) 98 ALR 100, followed
Logicrose Ltd v Southend United Football Club, unreported, Chancery Division, 5 February 1988, mentioned
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, considered
Mango Boulevard Pty Ltd v Spencer& Ors [2008] QCA 274, considered
Quinlan v Rothwell & Anor [2001] QCA 176, considered
Re Jokai Tea Holdings Ltd (1992) 1 WLR 1196, followed
The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2008] QCA 224, considered
Tolley v Morris [1979] 1 WLR 592, cited
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, consideredCOUNSEL:
D North SC with P J Hay for the plaintiff/applicant
A Crowe SC for the defendants/respondents
SOLICITORS:
Mason Black Lawyers for the plaintiff/applicant
Piper Alderman for the defendants/respondents
[1] J: P LyonsThe plaintiff has, again, failed to comply with an order of the Court requiring it to take an action by a specified date. It seeks a variation of that order, and further directions. The defendants seek an order that the action be dismissed for want of prosecution.
The litigation
[2] The claim arises out of cleaning work performed by the plaintiff on tiles in a residence…
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- Case
- [2009] QSC 218
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff had been in default due to multiple failures to comply with court orders without a credible explanation for the delays. The court emphasised the importance of adherence to procedural requirements and the need for litigants to act promptly and responsibly. The judge held that the plaintiff's conduct warranted the dismissal of the proceedings. The court also noted that, while the plaintiff's claims were still within the limitation periods, the plaintiff was not entitled to re-initiate the proceedings without first addressing the reasons for the previous failures to comply with procedural obligations. The court concluded that the dismissal was appropriate given the lack of credible explanation and the repeated failures to comply with the court's orders.
The court dismissed the plaintiff's claim for want of prosecution. The plaintiff was not entitled to commence fresh proceedings without addressing the reasons for the previous defaults. The judge ordered that the proceedings be dismissed and made no order as to costs.
Orders
Orders of the court
1. The claim is dismissed for want of prosecution
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
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