Hightop Pty Ltd v Caffe Pty Ltd - [2009] QSC 402

SUPREME COURT OF QUEENSLAND

CITATION:

Hightop Pty Ltd & Anor v Caffe Pty Ltd & Ors [2009] QSC 402

PARTIES:

HIGHTOP PTY LTD
ACN 099 622 689
(first respondent/first plaintiff)
KARL BERNARD WALKER AS TRUSTEE FOR THE KARL WALKER TRUST
(second respondent/second plaintiff)
v
CAFFE PTY LTD
ACN 085 944 805
(first applicant/first defendant)
ROBERT CHARLES SALE
(second applicant/second defendant)
PAULA KAY SALE
(third applicant/third defendant)
KAY SHEILA LAWRENCE TRADING AS KAY LAWRENCE ACCOUNTANCY
(fourth applicant/fourth defendant)

FILE NO:

BS 3147 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2009

JUDGE:

P Lyons J

ORDER:

Application by the first, second and third defendants be dismissed;

Order in terms of paragraphs 1, 2 and 3 of the fourth defendant’s application (CFI 14);

Order in terms of paragraph 4 of the fourth defendant’s application (CFI 14);

Costs of the application brought on by the first, second and third defendants be costs in the cause.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – renewal of claim –where defendants apply to have the ex parte order renewing the plaintiffs’ claim set aside –adequacy of explanation – issues of prejudice caused to the defendants – whether the plaintiffs have provided an adequate reason for delay in commencing proceedings – whether the plaintiffs have provided an adequate reason for not serving proceedings shortly after commencement – whether the plaintiffs have provided an adequate explanation for the delay serving the amended pleadings – where the plaintiffs provide several reasons for the delay – whether blame should be attributed to the plaintiffs for the delay in serving the proceedings – role of solicitor – consideration of the legal principles arising from rr 5, 24 Uniform Civil Procedure Rules 1999 (Qld) – whether the claim against the defendants should be renewed

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – OTHER MATTERS – whether the plaintiffs have substantial prospects of success on their claim against the defendants – relevance to the determination of whether the claim against the defendants should be renewed

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – OTHER MATTERS – prejudice to the first, second and third defendants – whether the plaintiffs’ delay has caused prejudice to the first, second and third defendants – where records relevant to the plaintiffs’ claim have since been disposed of or have become unavailable – whether the lost documents or computer files would contain information that would be important in contesting the claim – whether prejudice has arisen due to passage of time –whether the claim against the first, second and defendants should be renewed

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – OTHER MATTERS – prejudice – where the fourth defendant destroyed the plaintiffs’ file…

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.

Continue reading Hightop Pty Ltd v Caffe Pty Ltd

Details

AGLC: Hightop Pty Ltd v Caffe Pty Ltd [2009] QSC 402
Case: [2009] QSC 402
Decision Date: 11 December 2009

CaseChat Overview and Summary

Hightop Pty Ltd brought a claim against Caffe Pty Ltd and others, which was renewed by an ex parte order. The defendants sought to set aside this order, arguing that Hightop had not adequately explained the delays in serving and commencing proceedings. The defendants also claimed that the delay had prejudiced them, particularly since relevant records had been disposed of or had become unavailable. Hightop, on the other hand, provided various reasons for the delay and argued that they had substantial prospects of success on their claim. The court needed to determine whether the plaintiffs' delays were adequately explained and whether the defendants had been prejudiced by these delays. The court also had to consider whether the plaintiffs had a substantial prospect of success on their claims and whether the renewal of the claims should be set aside.

The court assessed the adequacy of Hightop's explanations for the delays in serving and commencing the proceedings. It found that Hightop had provided several reasons for the delay, which the court considered sufficient to justify the delay. The court also examined whether any blame could be attributed to Hightop for the delay in serving the proceedings, considering the role of their solicitor. The court noted that Hightop had substantial prospects of success on their claims, which was a relevant factor in determining whether the claims should be renewed. The court concluded that the plaintiffs' explanations for the delay were adequate and that the defendants had not been prejudiced by the delay. Accordingly, the court dismissed the defendants' application to set aside the ex parte order renewing the claims.

The court ordered that the application by the first, second, and third defendants be dismissed. It also ordered that the fourth defendant's application be granted in part, with specific provisions regarding the claim against the fourth defendant. The court determined that the claim against the first, second, and third defendants should proceed, while a preliminary view of the prospects of success against the fourth defendant could not be formed due to the destruction of relevant documents. The court awarded costs of the application brought by the first, second, and third defendants to be costs in the cause.

Orders

Orders of the court

1. Application by the first, second and third defendants be dismissed;

2. Order in terms of paragraphs 1, 2 and 3 of the fourth defendant’s application (CFI 14);

3. Order in terms of paragraph 4 of the fourth defendant’s application (CFI 14);

4. Costs of the application brought on by the first, second and third defendants be costs in the cause.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hightop Pty Ltd & Anor v Caffe Pty Ltd & Ors [2009] QSC 402
PARTIES:	HIGHTOP PTY LTD ACN 099 622 689 (first respondent/first plaintiff) KARL BERNARD WALKER AS TRUSTEE FOR THE KARL WALKER TRUST (second respondent/second plaintiff) v CAFFE PTY LTD ACN 085 944 805 (first applicant/first defendant) ROBERT CHARLES SALE (second applicant/second defendant) PAULA KAY SALE (third applicant/third defendant) KAY SHEILA LAWRENCE TRADING AS KAY LAWRENCE ACCOUNTANCY (fourth applicant/fourth defendant)
FILE NO:	BS 3147 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2009
JUDGE:	P Lyons J
ORDER:	Application by the first, second and third defendants be dismissed; Order in terms of paragraphs 1, 2 and 3 of the fourth defendant’s application (CFI 14); Order in terms of paragraph 4 of the fourth defendant’s application (CFI 14); Costs of the application brought on by the first, second and third defendants be costs in the cause.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – renewal of claim –where defendants apply to have the ex parte order renewing the plaintiffs’ claim set aside –adequacy of explanation – issues of prejudice caused to the defendants – whether the plaintiffs have provided an adequate reason for delay in commencing proceedings – whether the plaintiffs have provided an adequate reason for not serving proceedings shortly after commencement – whether the plaintiffs have provided an adequate explanation for the delay serving the amended pleadings – where the plaintiffs provide several reasons for the delay – whether blame should be attributed to the plaintiffs for the delay in serving the proceedings – role of solicitor – consideration of the legal principles arising from rr 5, 24 Uniform Civil Procedure Rules 1999 (Qld) – whether the claim against the defendants should be renewed PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – OTHER MATTERS – whether the plaintiffs have substantial prospects of success on their claim against the defendants – relevance to the determination of whether the claim against the defendants should be renewed PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – OTHER MATTERS – prejudice to the first, second and third defendants – whether the plaintiffs’ delay has caused prejudice to the first, second and third defendants – where records relevant to the plaintiffs’ claim have since been disposed of or have become unavailable – whether the lost documents or computer files would contain information that would be important in contesting the claim – whether prejudice has arisen due to passage of time –whether the claim against the first, second and defendants should be renewed PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – OTHER MATTERS – prejudice – where the fourth defendant destroyed the plaintiffs’ file…