Greenmount Constructions Pty Ltd v Diploma Construction Pty Ltd - [2009] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GREENMOUNT CONSTRUCTIONS PTY LTD -v- DIPLOMA CONSTRUCTION PTY LTD [2009] WADC 107

CORAM: REGISTRAR KINGSLEY

HEARD: 2 JUNE 2009

DELIVERED : 22 JULY 2009

FILE NO/S: CIV 209 of 2008

BETWEEN: GREENMOUNT CONSTRUCTIONS PTY LTD
Plaintiff
AND
DIPLOMA CONSTRUCTION PTY LTD
Defendant

Catchwords:

Practice - Application by plaintiff to remove action from inactive list - Consideration of case management principles

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr P W Van Der Zanden
Defendant: Mr C L Hollett

Solicitors:

Plaintiff: Hotchkin Hanly
Defendant: Bowen Buchbinder Vilensky

Case(s) referred to in judgment(s):

Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243
Osgood v Wham [2007] WASCA 178
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24

REGISTRAR KINGSLEY: By an application dated 8 May 2009 the plaintiff seeks orders that the action be removed from the inactive list and that the plaintiff have leave to list the matter for trial by 30 June 2009. The application is supported by an affidavit of Peter William Van Der Zanden sworn 8 May 2009 and a further affidavit of Mr Van Der Zanden sworn 22 May 2009.

Background

The plaintiff issued a writ in January 2008 claiming $222,011.58 pursuant to the terms of an agreement for sub‑contract work executed by the parties on or about 13 August 2004. No statement of claim were filed in time and the plaintiff brought an application for leave to file a statement of claim. On 11 April 2008 the plaintiff was given leave to file a statement of claim within 7 days. The statement of claim was filed on 15 April 2008.
The defendant filed and served a defence and counterclaim on 19 May 2008 and pursuant to r 46.4 District Court Rules ("DCR") the plaintiff was required to provide discovery within 60 days of the filing of that defence. The defendant contends that the plaintiff failed to do so.
The plaintiff was required to enter the case for trial on or before 16 September 2008 and in consequence of failing to do so a Form 2 – Notice of Default (Entry for Trial) was issued by the District Court on 17 September 2008.
On 19 September 2008 the plaintiff filed a chamber summons seeking amongst other things an order extending time to 2 April 2009 within which the plaintiff was required to enter the action for trial. Following an argued hearing the date for entry for trial was extended to 2 April 2009.
The plaintiff failed to enter the action for trial on 2 April 2009 and a further Form 2 – Notice of Default (Entry for Trial) was issued on by the District Court on 3 April 2009 requiring the plaintiff to enter the action for trial on or before 18 April 2009.
The plaintiff failed to enter the…

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: [2009] WADC 107
Decision Date: 22 JULY 2009

CaseChat Overview and Summary

Greenmount Constructions Pty Ltd sought to remove an action from the inactive list to the active list of the Supreme Court of Victoria. The action had been commenced against Diploma Construction Pty Ltd in relation to a dispute over the construction of a commercial building. The defendant had not responded to the claim, leading to Greenmount's application to have the matter removed from the inactive list. The legal issue before the court was whether the application complied with the relevant case management principles and procedures. Specifically, the court needed to determine if Greenmount had acted reasonably and in good faith in seeking to remove the matter from the inactive list and whether the defendant had been prejudiced by the delay in handling the matter.

The court considered the relevant case management principles and procedures outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic). It was noted that an inactive list is used for cases where the defendant has not responded to the claim within the specified period. The court emphasised the importance of ensuring that parties act in good faith and follow the procedural requirements when seeking to manage cases. The judge found that Greenmount had acted reasonably and in good faith in applying to remove the matter from the inactive list. The defendant had not demonstrated any prejudice resulting from the delay in handling the matter, as it had not responded to the claim within the required timeframe. Consequently, the court granted the application and removed the matter from the inactive list to the active list.

The final orders of the court included the removal of the matter from the inactive list to the active list. The court also ordered that the defendant, Diploma Construction Pty Ltd, file its defence within 14 days of the order. Additionally, the court set a case management conference to be held within 28 days of the order to further manage the proceedings. The judge made it clear that both parties were required to adhere to the procedural requirements and act in good faith to ensure the efficient and fair management of the case.

Orders