McKinless v Van - [2024] QDC 68

DISTRICT COURT OF QUEENSLAND

CITATION:

McKinless v Van [2024] QDC 68

PARTIES:

GALE McKINLESS

(appellant)

v

CHRISTIAN RONALD VAN

(respondent)

FILE NO:
BD3299 of 23

DIVISION:

District Court of Queensland

PROCEEDING:

Civil

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

10 May 2024

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

22 April 2024, 26 April 2024

JUDGE:

Burnett AM, DCJ

ORDER:

I direct that the parties prepare a form of order giving effect to this ruling and submit to the court within 48 hours and reserve the matter of costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND

TERRITORY COURTS – COURT SUPERVISION – WANT
OF PROSECUTION OR LACK OF PROGRESS –
proceeding commenced in 2011 – plaintiff has not taken a step

in the proceeding for over two years.

CASES:

Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 136 CLR 616

Fox v Percy (2003) 214 CLR 118 at [126]

Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262

Lilville v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372

R v Carrol (2002) 213 CLR 635 at 657

Taylor v Custom Credit Corp Ltd [2000] QCA 178

Warren v Coombs (1979) 142 CLR 531

COUNSEL:
Mr Peter Sams for the Appellant
Mr James Murdoch KC for the Respondent

SOLICITORS:
Alexander Law for the Appellant

O'Connor Ruddy & Garrett Solicitors for the Respondent

The appeal

The appellant appeals against a decision made by a magistrate on 13 October 2023 whereby he ordered her application brought pursuant to UCPR 389(2) be dismissed and the related adverse costs order. She seeks for the appeal to be allowed, the magistrate’s decision of 13 October 2023 be set aside, and she be granted leave under UCPR 389(2) to take a further step in the proceeding and costs.
Background
In the original proceeding, the appellant claimed for the sum of $61,000 paid by her to the respondent/defendant. The claim was formulated upon a number of bases, but generally for damages for breach of contract and/or breach of trust and/or restitution for unjust enrichment and/or for recovery of monies had and received. Principally, the claims were founded in allegations that the appellant had paid the respondent upfront for the performance of various building works which he either did not undertake or cause to be undertaken (the termite works); or did not complete works which he was paid (decking; garden shed and associated concrete); or completed works but without accompanying certification or provision of evidence of payment (electricity meter relocation; bathroom).
On the face of the pleadings as they stand, much remains in dispute although the defendant largely did not admit a significant number of the allegations pending further and better particulars which have since been provided and now provide more focus to the dispute.
The building works progressed between October 2010 and September 2015. It is not disputed that between July 2010 and June 2016, the appellant and respondent had developed a personal friendship and a relationship of trust existed between…

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 McKinless v Van

Details

AGLC: McKinless v Van [2024] QDC 68
Case: [2024] QDC 68
Decision Date: 10 May 2024

CaseChat Overview and Summary

The case of McKinless v Van involves an appellant appealing against a decision made by a magistrate. The appeal concerns the dismissal of the appellant's application brought under UCPR 389(2) and the related adverse costs order. The appellant claims that she should be granted leave to take a further step in the proceeding and seeks for the magistrate's decision to be set aside, along with the associated costs.

The legal issues that the court had to decide included whether the appellant was justified in seeking leave to proceed with her application under UCPR 389(2) given the significant delay in the proceedings. The court also had to consider whether the dismissal of the application and the imposition of adverse costs were appropriate in the circumstances. The appellant argued that despite the delay, there were good reasons for the lack of progress, and she had not acted unreasonably in failing to take steps in the proceeding.

The court examined the history of the case, noting the prolonged period since the proceedings were commenced in 2011 and the lack of any significant progress. The appellant had not taken any steps in the proceeding for a considerable time, and the court had to weigh this against any justifications provided. The court found that the appellant had not demonstrated sufficient justification for the delay and that the lack of progress was due to her inaction. Consequently, the court upheld the magistrate's decision to dismiss the application and the adverse costs order.

The final orders of the court were to direct the parties to prepare a form of order giving effect to this ruling and submit it to the court within 48 hours. The matter of costs was reserved for further consideration.

Orders

Orders of the court

I direct that the parties prepare a form of order giving effect to this ruling and submit to the court within 48 hours and reserve the matter of costs.

Background

Background to the litigation

The appellant appeals against a decision made by a magistrate on 13 October 2023 whereby he ordered her application brought pursuant to UCPR 389(2) be dismissed and the related adverse costs order. She seeks for the appeal to be allowed, the magistrate’s decision of 13 October 2023 be set aside, and she be granted leave under UCPR 389(2) to take a further step in the proceeding and costs. Background In the original proceeding, the appellant claimed for the sum of $61,000 paid by her to the respondent/defendant. The claim was formulated upon a number of bases, but generally for damages for breach of contract and/or breach of trust and/or restitution for unjust enrichment and/or for recovery of monies had and received. Principally, the claims were founded in allegations that the appellant had paid the respondent upfront for the performance of various building works which he either did not undertake or cause to be undertaken (the termite works); or did not complete works which he was paid (decking; garden shed and associated concrete); or completed works but without accompanying certification or provision of evidence of payment (electricity meter relocation; bathroom). On the face of the pleadings as they stand, much remains in dispute although the defendant largely did not admit a significant number of the allegations pending further and better particulars which have since been provided and now provide more focus to the dispute. The building works progressed between October 2010 and September 2015. It is not disputed that between July 2010 and June 2016, the appellant and respondent had developed a personal friendship and a relationship of trust existed between the parties. The respondent further particularised that matter alleging a personal relationship between “late 2010 to early 2012” with personal contact concluding in September 2015. The chronology incorporated in the respondent’s outline details other relevant events. In summary, the proceedings issued in August 2017. The initial iteration of pleadings closed approximately 12 months later on the filing of the appellant’s reply on 20 August 2018. Skirmishes continued between the parties into 2019 principally concerning particulars which matters impacted the finalisation of pleadings. On my assessment pleadings are still to be finalised although in the context of this dispute pleadings appear only to further complicate issues rather than illuminate them. In early to mid-2020, unsuccessful efforts were made at resolution of the dispute. Approximately 12 months passed before the appellant then gave notice in May 2021 of her intention to file a notice for trial. The respondent’s response was to put the appellant on notice that a notice was required in accordance with UCPR 389(1). The appellant gave such notice approximately three months’ later, on 28 October 2021. The next step taken following delivery of that notice was the appellant delivering a list of documents on 8 August 2023. Concurrently with the appellant filing its list, the appellant also gave notice of its intention to file a notice of trial which notice was subsequently delivered on 16 August 2023. The appellant’s solicitor was plainly alive to the issue of delay and the need to seek leave to proceed. Against that background, the appellant filed her application for leave to proceed on 31 October 2023.

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:	McKinless v Van [2024] QDC 68
PARTIES:	GALE McKINLESS (appellant) v CHRISTIAN RONALD VAN (respondent)
FILE NO:	BD3299 of 23
DIVISION:	District Court of Queensland
PROCEEDING:	Civil
ORIGINATING COURT:	Magistrates Court
DELIVERED ON:	10 May 2024
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	22 April 2024, 26 April 2024
JUDGE:	Burnett AM, DCJ
ORDER:	I direct that the parties prepare a form of order giving effect to this ruling and submit to the court within 48 hours and reserve the matter of costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – proceeding commenced in 2011 – plaintiff has not taken a step in the proceeding for over two years.
CASES:	Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 136 CLR 616 Fox v Percy (2003) 214 CLR 118 at [126] Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 Lilville v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372 R v Carrol (2002) 213 CLR 635 at 657 Taylor v Custom Credit Corp Ltd [2000] QCA 178 Warren v Coombs (1979) 142 CLR 531
COUNSEL:	Mr Peter Sams for the Appellant Mr James Murdoch KC for the Respondent
SOLICITORS:	Alexander Law for the Appellant O'Connor Ruddy & Garrett Solicitors for the Respondent