Mathiesen v Lawson

Case [2018] QSC 154

SUPREME COURT OF QUEENSLAND

CITATION:

Mathiesen v Lawson & Ors [2018] QSC 154

PARTIES:

RODRICK GORDON MATHIESEN
(plaintiff)

v

ALAN JOSEPH LAWSON
(first defendant)

GRAHAM FARREN
(second defendant)

TONNIJ JOHANNES BOBELDYK
(third defendant)

FARREN AND LAWSON PTY LTD  ACN 010 027 559
(fourth defendant)

COMPACTOR HIRE (TOWNSVILLE) PTY LTD       ACN 077 355 447
(sixth defendant)

ROD MATHIESEN PLANT HIRE PTY LTD (in liquidation)  ACN 011 006 447   (seventh defendant)

FILE NO:

SC No 410 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

4 July 2018

DELIVERED AT:

Townsville

HEARING DATE:

10 and 11 April 2017

JUDGE:

North J

ORDER:

1.   The proceeding by the plaintiff against the first, second, fourth and sixth defendants be dismissed.

2.   Judgment for the first, second, fourth and sixth defendants against the plaintiff.

3.   The plaintiff pay the costs (including reserve costs) of the first, second, fourth and sixth defendants of the application and the proceeding to be assessed on the standard basis.

4.   The plaintiff and the first, second, fourth and sixth defendants have liberty to apply for a different or varied cost order provided an application is filed within 21 days.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION – where the defendants seek that part of the plaintiff’s amended statement of claim be struck out – where the defendants raise limitation issues – whether the statement of claim sets out the causes of action or basis for relief

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the defendants seek that the proceedings be dismissed for want of prosecution pursuant to r 280 or alternatively the court’s inherent jurisdiction – where the plaintiff had not taken a step for more than two years – where the plaintiff contends that an order made in a related proceeding constitutes a step in the current proceeding – whether the proceedings should be dismissed

LEGISLATION:

Corporations Act 2001 (Cth), s 181, s 182, s 183, s 237
Trade Practices Act 1974 (Cth), s 52, s 75B, s 82
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 150, r 154, r 155, r 157, r 158, r 171, r 280, r 370, 371, 375, r 376, r 389

Limitation of Actions Act 1974 (Qld), s 10

CASES:

Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256, cited
Derry v Peek (1889) 14 App Cas 377, cited
Gerace v Auzhair Supplies Pty Ltd (in liq) (2014) 310 ALR 85, cited
Gerard Cassegrain & Co Pty Ltd v Cassegrain & Ors [2010] NSWSC 91, distinguished
Grahame Allen & Sons Pty Ltd v Water Resources Commission [2001] 1 Qd R 523, cited
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216, cited
Hutchins v Robinson [2012] QSC 411, cited
Marks v…

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Mathiesen v Lawson [2018] QSC 154
Case
[2018] QSC 154
Decision Date

CaseChat Overview and Summary

Mathiesen v Lawson involved a dispute between the plaintiff, Mathiesen, and the defendants Lawson and others. The plaintiff sought damages for various causes of action, including deceit, breach of fiduciary duty, and negligence. The defendants moved to have part of the plaintiff's amended statement of claim struck out on the basis that it did not disclose a reasonable cause of action and raised limitation issues. Additionally, the defendants sought to dismiss the proceedings for want of prosecution, arguing that the plaintiff had not taken any steps in the matter for more than two years.

The court examined whether the plaintiff's statement of claim sufficiently set out the causes of action or basis for relief. The court also considered whether the proceedings should be dismissed for lack of prosecution under r 280 or the court's inherent jurisdiction. The plaintiff argued that an order made in a related proceeding constituted a step in the current proceeding, but the court was not persuaded. The court found that the plaintiff's amended statement of claim did not disclose a reasonable cause of action and that the proceedings had been inactive for an extended period.

Consequently, the court dismissed the proceedings against the specified defendants and ordered the plaintiff to pay their costs. The court emphasised that the plaintiff had not demonstrated sufficient progress or activity in the proceedings to warrant their continuation. The plaintiff and the defendants were granted liberty to apply for a different or varied cost order within 21 days of the decision.

Orders

Orders of the court

1. The proceeding by the plaintiff against the first, second, fourth and sixth defendants be dismissed.

2. Judgment for the first, second, fourth and sixth defendants against the plaintiff.

3. The plaintiff pay the costs (including reserve costs) of the first, second, fourth and sixth defendants of the application and the proceeding to be assessed on the standard basis.

4. The plaintiff and the first, second, fourth and sixth defendants have liberty to apply for a different or varied cost order provided an application is filed within 21 days.

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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