Merritt v Hughes

SUPREME COURT OF QUEENSLAND

CITATION:

Merritt v Hughes [2010] QSC 100

PARTIES:

KEITH ANDREW MERRITT

Respondent/Plaintiff

v

KAY HUGHES

Applicant/Defendant

FILE NO/S:

BS 4541 of 1997

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

30 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2010

JUDGE:

White J

ORDER:

The application for leave to proceed is refused.

The application to strike out the proceedings for want of prosecution is granted.

CATCHWORDS:

PROCEDURE - SUPREME COURT PROCEDURE - Application to Dismiss Proceeding for Want of Prosecution - Application for Leave to Proceed - Delay - Whether a Fair Trial can be had

Uniform Civil Procedure Rules, r 5, r 280, r 389

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27

Birkett v James [1978] AC 2

Cooper v Hopgood & Ganim [1999] 2 Qd R 113

Hunter v Chief Constable of West Midlands Police [1982] AC 529

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

Quinlan v Rothwell [2002] 1 Qd R 647

Tyler v Custom Credit Limited [2000] QCA 178

COUNSEL:

L Bowden for the applicant/defendant and responding to a cross-application

AW Duffy for the respondent/plaintiff and cross-applying applicant

SOLICITORS:

Anderson Brady for the plaintiff

Gadens Lawyers for the defendant

1. The defendant, Ms Hughes[1] filed an application on 30 November 2009 returnable on 15 December 2009 that the within proceedings be dismissed.[2]  She also sought orders in separate proceedings[3] returnable on the same date that two caveats over property registered in her name at Gatton be removed. 

   [1]She has married since the initiation of the proceedings and her affidavit is sworn in her married name, Kay Trimble.

   [2]The application does not attribute a basis but it is for want of prosecution or abuse of process.

   [3]BS13508/09.

1. On 15 December 2009 Mr Merritt represented himself.  The applications were adjourned to 11 February 2010.  A request to the Registrar of Titles by Mr Merritt’s solicitors to remove the caveats was made on 9 February 2010.  Those proceedings are, therefore, at an end. On 11 February Mr Merritt, by then represented by Mr Duffy, was ordered to deliver to Ms Hughes a proposed amended statement of claim and to file an application for leave to proceed. 

1. The present proceedings between Mr Merritt and Ms Hughes were commenced by Mr Merritt by writ and statement of claim dated 22 May 1997.  The writ claims, somewhat delphically,

1.          Specific performance of the said agreement.

2.Further in the alternative damages for breach of the said agreement.

The statement of claim pleads an oral agreement in November or December 1992, which was reduced to writing on 13 January 1993, between the parties for the division of their assets at the cessation of their de facto relationship.  It is, no doubt, to that agreement that the claim refers.  The agreement contends that Ms Hughes failed to transfer the Gatton property to Mr Merritt…