Looranah Investments Pty Ltd v Quadric Pty Ltd

[1996] QCA 489

[1996] QCA 489

COURT OF APPEAL

McPHERSON JA
PINCUS JA
THOMAS J

Appeal No 9673 of 1996

LOORANAH INVESTMENTS PTY LTD AS
TRUSTEE FOR THE ALLMEMBERS PROPERTY

AND EQUITY TRUST                   Appellant (Plaintiff)

and

QUADRIC PTY LTD AS TRUSTEE OF THE
QUADRIC TRADING UNIT TRUST             Respondent (Defendant)

BRISBANE

..DATE 18/11/96

JUDGMENT

McPHERSON JA:  This is an application for leave to appeal against a decision of a Judge of District Courts refusing leave to the plaintiff to proceed in an action instituted by  plaint in or about June 1990.  The claim is for rent alleged to be due and owing and to have arisen during a period of eight months running from about April 1989 to January 1990.

Throughout that period a trustee company was the registered proprietor of the land.  In January 1990 the trustee company retired and the plaintiff became trustee.  It is said that it was then registered as transferee and proprietor, although we have not seen documentary evidence to support that conclusion.

The relation between the parties, of whom there were a considerable number at the time, seems to have been one of considerable complexity.  In the end, however, after the action had been instituted, a series of steps were taken to carry it forward, the last of which appears to have been the amendment of the plaintiff's reply and answer on 1 February 1991.  Since then nothing has happened or, at any rate, nothing has happened which is capable of being regarded as a step for the purpose of applying the relevant rule of District Courts.

The learned Judge in dismissing the application said that he found that no satisfactory explanation had been advanced for the delay in further prosecuting the action; and he also found that there had been detriment or prejudice to the defendant arising from delay in carrying the action forward.  By that it is reasonably clear that he was referring to the inevitable failure of recollection or memory over a period of time as long as that involved in this case, as well as possible inability to locate notes and other documents which might have supplied that omission.

In the written outlines of argument relied on by Mr Sheahan on behalf of the applicant plaintiff before us, three matters were identified as constituting factors that were said to show that there was a point or points of law of importance or a question of justice of importance at stake.  As the submissions developed, it became apparent that, in fact, Mr Sheahan was, as he frankly conceded, able to rely on only one of them.  It was a matter that arose out of a remark in the reasons given by his Honour in dismissing the application which is to the following effect.

"It was also submitted that by reason of the passage of time, it" - by which his Honour meant the defendant - "has lost the opportunity to bring a claim seeking rectification of the agreement or agreements made; and, prima facie, that is so."  His Honour was there referring to a contention on behalf of the defendant that there had been an agreement by which all matters between the parties had been resolved including, as I understand it, the question of rent; and that it would, if the action were permitted to proceed, be necessary or helpful for the defendant to claim rectification of certain written documents or instruments which constituted the agreement, or recorded it, at the time it was made in about late 1989 or 1990.

The challenge issued to that remark by Mr Sheahan on behalf of the applicant in this Court, is that his Honour was wrong in supposing that there was a limitation period applicable to a claim for rectification or, at any rate, applicable to such a claim by reference to an analogy with any other limitation period in the statute.  For my part I do not read that passage of his Honour's reasons in the manner contended for.  It seems to me simply to be a specification by his Honour of a reason which would operate to make it difficult, if not impossible, for the defendant in the action now to prove a case of the kind required in order to have an instrument rectified.

There is in the defence filed on behalf of the defendant in the District Court, a reference to the fact that, as it is alleged, it was the common intention of the parties to the settlement agreement, to which reference is made there, that they would sever all their business associations upon the terms contained in the settlement agreement. 

It is plain to anyone who thinks about it that the difficulties of establishing a case of that kind could only become greater through the lapse of time, particularly when, as is the case here, there were several individuals or companies involved in making the agreement in question.
Personally I am by no means satisfied that the Judge was wrong in the remark he made in the passage quoted.

However, even if he was, it is, to my mind, clear that no important point of law or justice is involved in making it, and that this case is not one in which the Court ought to intervene to permit the applicant to carry to this Court litigation which, on any view of it, ought to have been concluded a long time ago.  I would dismiss the application.

PINCUS JA:  I agree.

THOMAS J:  I agree.

McPHERSON JA:  The order is that the application is dismissed with costs.

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