King v Gunthorpe

Case [2018] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION:

King & Ors v Gunthorpe & Ors [2018] QSC 1

PARTIES:

THOMAS KING AS EXECUTOR OF THE ESTATE OF RODNEY KENNETH KING, DECEASED
(first plaintiff)

and

EDITH PATRICIA KING
(second plaintiff)
and
JRB FINANCE PTY LTD
ACN 142 023 390
(third plaintiff)
v

DAVID STUART GUNTHORPE

(first defendant)

and

SRJ FINANCIAL PTY LTD
ACN 010 194 662
(second defendant)
and

SECURITOR FINANCIAL GROUP LTD
ACN 009 189 495

(third defendant)

FILE NO:

BS No 4015 of 2015

DIVISION:

Trial Division

PROCEEDING:

Applications

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 January 2018

DELIVERED AT:

Brisbane

HEARING DATES:

7 December 2016; Directions by order dated 25 August 2017; supplementary submissions on behalf of the defendants received on 31 August 2017; supplementary submissions on behalf of the plaintiffs received on 7 September 2017

JUDGE:

Burns J

ORDER:

The orders of the court are that:

1.     Leave is granted to the defendants to read the affidavit of Shaun Ian Reeves filed on 21 August 2017;

2.     Leave is granted to the plaintiffs to read the affidavit of the second plaintiff filed on 28 August 2017 and the affidavit of the first plaintiff filed on 29 August 2017;

3.     The applications are dismissed;

4.     The defendants pay the plaintiffs’ costs of and incidental to the applications calculated on the standard basis unless one or more of the parties, by submissions in writing filed and served within seven days, contend for the making of a different order.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the proceeding was started by the filing of a claim and statement of claim – where service was not effected on any of the defendants within the period of one year from the day on which the claim was filed – where the plaintiffs made an ex parte application for renewal of the claim nearly fifteen months after the proceeding was started – where the plaintiffs made no attempt to serve any of the defendants during the one year period from the day on which the claim was filed – where the Registrar made an order renewing the claim for one year pursuant to r 24(2) of the Uniform Civil Procedure Rules 1999 (Qld) – where service was effected on the defendants some sixteen months after the proceeding was started – where the defendants filed applications to set aside the order for renewal together with consequential orders dismissing the proceeding – whether the defendants would be prejudiced in their defence of the claim by its renewal – whether there existed ‘good reason’ for renewing the claim pursuant to r 24(2) of the Uniform Civil Procedure Rules 1999 (Qld) – whether the court should exercise its discretion to set aside the order renewing the claim

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 16, r 16(d), r 24, r 24(2), r 367, r 367(2), r 667, r 667(2)(a)

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AGLC
King v Gunthorpe [2018] QSC 1
Case
[2018] QSC 1
Decision Date

CaseChat Overview and Summary

The case of King v Gunthorpe was heard in the Supreme Court of Queensland. The plaintiffs, Thomas King, Edith King, and JRB Finance Pty Ltd, sought to renew a claim against the defendants, Mr and Mrs Gunthorpe. The original claim was not served on the defendants within the prescribed one-year period, and the plaintiffs sought an extension of time to serve the claim. The defendants opposed the renewal and argued that they would suffer prejudice as a result of the delay.

The legal issues before the court were whether the defendants would be prejudiced in their defence of the claim by its renewal, whether there existed ‘good reason’ for renewing the claim pursuant to r 24(2) of the Uniform Civil Procedure Rules 1999 (Qld), and whether the court should exercise its discretion to set aside the order renewing the claim. The court considered the interests of justice, the specific and general prejudice to the defendants, and the likelihood that the defendants would be deprived of a limitation defence.

The court found that there was good reason for renewing the claim as the delay in serving it had been satisfactorily explained, and the plaintiffs were not otherwise at fault. The claim was apparently worthwhile, and hardship might result if the plaintiffs were shut out from their pursuit of it. The court held that these factors outweighed those in favour of setting aside the renewal, and the applications were dismissed. The defendants were ordered to pay the plaintiffs' costs of and incidental to the applications calculated on the standard basis unless one or more of the parties contend for the making of a different order.

The court granted leave for the defendants to read an affidavit filed by Shaun Ian Reeves and for the plaintiffs to read affidavits filed by the first and second plaintiffs. These affidavits related to the circumstances of the death of a former managing director of one of the defendants and the potential prejudice caused by the delay in serving the claim. The court held that the interests of justice were best served by a grant of leave, as the evidence had relevance to the question whether the defendants might suffer specific prejudice if the claim stood renewed.

Orders

Orders of the court

The orders of the court are that:

1. Leave is granted to the defendants to read the affidavit of Shaun Ian Reeves filed on 21 August 2017;

2. Leave is granted to the plaintiffs to read the affidavit of the second plaintiff filed on 28 August 2017 and the affidavit of the first plaintiff filed on 29 August 2017;

3. The applications are dismissed;

4. The defendants pay the plaintiffs’ costs of and incidental to the applications calculated on the standard basis unless one or more of the parties, by submissions in writing filed and served within seven days, contend for the making of a different order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is convenient to first deal with the application for leave.Leave to adduce further evidence A former managing director of the second defendant, Mr Lance Milham, died unexpectedly on 20 July 2017. The defendants wish to place evidence before the court as to the circumstances of Mr Milham’s death and why his death is a source of prejudice to the defendants arising from the plaintiffs’ failure to serve their claim within 12 months. Mr Reeves’ affidavit goes to the proof of these matters. The plaintiffs object to leave being granted. They submit that the identification of potential witnesses and their roles was something about which evidence could have been adduced at the hearing, but it was not. That was, it was submitted, a “forensic decision” which the defendants made at the time of the hearing and Mr Milham’s death does not justify a reversal of that decision. Further, it was submitted that the evidence contained in Mr Reeves’ affidavit is deficient in a number of respects.[2][2]The deficiencies were submitted to be as follows: “ [T]he further evidence does not convincingly explain why and in what respects Mr Milham would have been a witness in respect of any material and controversial issue of primary fact, how his death causes material prejudice to the defendant such that a fair trial is not possible or how such prejudice is occasioned by any delay of the plaintiffs”: Supplementary submissions for the plaintiffs, par 6. Rule 367 UCPR confers a broad power on the court to make “any order or direction about the conduct of a proceeding it considers appropriate”. In deciding whether an order or direction should be made, the interests of justice are paramount: r 367(2). Even without r 367, the court’s inherent power to control and supervise proceedings includes “the power to take appropriate action to prevent injustice”.[3][3]Hamilton v Oades (1989) 166 CLR 486, 502 per Deane and Gaudron JJ. And see Owen v Menzies & Ors [2010] QCA 137, 5 per Muir JA (with whom McMurdo P and Holmes JA agreed). In circumstances where judgment on the applications had not been handed down before leave was sought to adduce the further evidence and the evidence has relevance to the question whether the defendants might suffer specific prejudice if the claim stands renewed, the interests of justice are best served by a grant of leave. If, as the plaintiffs have submitted, the further evidence is deficient, that is something which can be taken into account when assessing the extent to which the defendants have established specific prejudice. The defendants shall have leave to read the affidavit of Mr Reeves filed on 21 August 2017 with an accompanying grant of leave to their opponents to read the affidavits from the first and second plaintiffs filed on 28 and 29 August 2017.Factual and procedural history The first plaintiff, Mr Thomas King, is the son and executor of the estate of his deceased father, Mr Rodney King. The second plaintiff, Mrs Edith King, is Mr King Snr’s widow. The third plaintiff, JRB Finance Pty Ltd, is the present trustee of the King Family Investment Trust.[4] [4] Mr King Snr was previously the trustee.

Decision

Reasons for decision

There can be “no better reason for granting relief than to see that justice is done”.[141] I am satisfied that there was good reason for renewing the claim. The delay in serving it has been satisfactorily explained. The implied undertaking to proceed expeditiously has not been breached and the plaintiffs are not otherwise at fault. The claim is apparently worthwhile and hardship might result if the plaintiffs are shut out from their pursuit of it. These factors, supporting as they do the renewal of the claim, outweigh those that are in favour of setting aside the renewal, that is to say, the specific and general prejudice earlier identified and the likelihood that the defendants will be deprived of a limitation defence. [141]Simpson v Saskatchewan Government Insurance Office (1967) 65 DLR (2d) 324, 332 per Culliton J; Van Leer Australia Pty Ltd v Palace Shipping KK, supra, 343-346; Muirhead v The Uniting Church in Australia Property Trust (Q), supra, [4]; Hightop Pty Ltd & Anor v Kay Sheila Lawrence trading as ‘Kay Lawrence Accountancy’, supra, [37].Conclusion For these reasons, I am satisfied that good reason exists for the renewal of the claim. It follows that the applications must be dismissed. The defendants will be ordered to pay the plaintiffs’ costs of and incidental to the applications calculated on the standard basis unless one or more of the parties contend for the making of a different order.

Ratio Decidendi

Legal Principle Established

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