McIntosh v Maitland

Case [2016] QSC 203


SUPREME COURT OF QUEENSLAND

CITATION:

McIntosh & Anor v Maitland & Ors [2016] QSC 203

PARTIES:

LACHLAN MCINTOSH AND JOHN PARK as trustees of the bankrupt estate of GARY STIRLING CAMM (A
BANKRUPT)

(plaintiff)

v

EDWARD JOHN MAITLAND trading as MAITLAND LAWYERS

(first defendant)

and

GARRY BIGMORE

(fourth defendant)

and

JOHN RIBBANDS

(fifth defendant)

FILE NO:

BS3344/14

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 July 2016

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   The order of the registrar made on 1 April 2015 to renew the claim is set aside.

2.   The claim is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiffs did not serve the claim on the defendants within the period of one year starting on the day it was filed – where the plaintiffs started to take steps to serve the claim only seven days before that one year period expired – where the plaintiffs’ claims against the defendant lawyers related to events at least six years ago – where the plaintiffs had been waiting for the outcome of other proceedings to determine whether to progress the claim – where the registrar ordered that the claim be renewed for 12 months pursuant to r 24 of the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants applied to set aside the renewal – whether courts still have a tendency to relax rigid time limits – whether reasonable efforts had been made to serve the defendants – whether waiting on the outcome of another case was a “good reason” to allow renewal – whether the fact the defendants had some earlier notice of the claim was a “good reason” to allow renewal

Judicature Act 1875 (Eng), O 8 r 1
Limitation of Actions Act 1974 (Qld), s 10
Rules of the Supreme Court 1900 (Qld), O 9 r 1

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 24

Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67, cited
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, cited
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104, applied
Aussie Ideas Pty Ltd v Tunwind Pty Ltd [2006] NSWCA 286, cited
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27, cited
Battersby v Anglo-American Oil Co Ltd [1945] KB 23, cited
Birkett v James [1978] AC 297, doubted
Camm v Linke Nominees Pty Ltd (No 5) [2015] FCA 431, cited
Cooper v Hopgood & Ganim [1999] 2 Qd R 113; [1998] QCA 114, cited
Cassegrain v Gerard Cassegrain & Co Pty Ltd (2013) 305 ALR 648; [2013] NSWCA 454, cited
Doyle v Kaufman (1877) 3 QBD 7, cited

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AGLC
McIntosh v Maitland [2016] QSC 203
Case
[2016] QSC 203
Decision Date

CaseChat Overview and Summary

McIntosh commenced proceedings against Maitland in the District Court of Queensland, claiming professional negligence. The plaintiffs, McIntosh, alleged that Maitland, their former legal representatives, had negligently conducted their matter, leading to an unfavourable outcome. The claim was filed but not served within the mandated one-year period. McIntosh initiated efforts to serve the claim only days before this period lapsed, having deferred action pending the resolution of related proceedings. The registrar ordered a 12-month renewal of the claim under Rule 24 of the Uniform Civil Procedure Rules 1999 (Qld). Maitland subsequently applied to set aside the renewal.

The court examined whether the plaintiffs had exercised reasonable diligence in serving the claim and if their delay was justified. The plaintiffs' rationale for the delay, including waiting for the conclusion of other litigation, was scrutinised. Maitland contended that the plaintiffs' actions did not constitute reasonable efforts and that the court should not countenance the relaxation of procedural time limits without a compelling justification. The court had to determine if the plaintiffs' reliance on another case's outcome and the defendants' prior awareness of the claim constituted a "good reason" to permit the renewal.

The court found that the plaintiffs had not acted with the requisite diligence to warrant a renewal of the claim. The delay in serving the claim was not accompanied by reasonable efforts to do so within the statutory period. Additionally, waiting for the resolution of another case was not deemed a sufficient reason to excuse the delay. The court held that while it has a discretion to relax rigid time limits, such discretion should be exercised sparingly and only in cases where there is a compelling justification. In this instance, the plaintiffs' reasons were insufficient to merit a renewal of the claim. Consequently, the order renewing the claim was set aside, and the claim was dismissed.

Orders

Orders of the court

The order of the court is that:

1. The order of the registrar made on 1 April 2015 to renew the claim is set aside.

2. The claim is dismissed.

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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