JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MONAVEEN PTY LTD (Receivers and Managers Appointed) (Administrator Appointed) -v- ABB SERVICE PTY LTD (formerly known as ABB Engineering Construction Pty Ltd) [2004] WASC 5
CORAM: TEMPLEMAN J
HEARD: 17 OCTOBER 2003 & 19 DECEMBER 2003
DELIVERED : 22 JANUARY 2004
FILE NO/S: CIV 2302 of 1998
BETWEEN: MONAVEEN PTY LTD (Receivers and Managers Appointed) (Administrator Appointed) (ACN 009 309 175)
Plaintiff
AND
ABB SERVICE PTY LTD (formerly known as ABB Engineering Construction Pty Ltd) (ACN 000 095 250)
Defendant
Catchwords:
Practice and procedure - Defendant's application to strike out action for want of prosecution - Delay due to shortage of funds - Whether delay contumelious - Conduct of solicitors - Hardship to plaintiff - Whether prejudice to defendant if action proceeds
Legislation:
Trade Practices Act 1974 (Cth), s 82, s 87
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr R K F Davis
Defendant: Mr P B O'Neal & Ms R J Lee
Solicitors:
Plaintiff: Talbot & Olivier
Defendant: Minter Ellison
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
TEMPLEMAN J: This is an application by the defendant, ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) to have dismissed for want of prosecution the action brought against it by Monaveen Pty Ltd, the plaintiff.
In summary, the grounds for the application are that some five years after the action was commenced, the pleadings have yet to be settled and there have been lengthy periods of inactivity on the part of the plaintiff which, being in administration, has been chronically short of funds with which to prosecute the action and to provide security for costs. Further, it is said, there has been a recent period of delay which can only be described as intentional and contumelious. The defendant contends that in all the circumstances, including the prejudice it will suffer if the action is to proceed, the action should now be dismissed.
Background
In 1996, the plaintiff entered into a subcontract with the defendant to supply labour, equipment and materials to carry out substantial civil engineering works in the construction of a hot briquetted iron plant for BHP Direct Reduced Iron Pty Ltd ("BHP") near Port Hedland. The defendant was BHP's head contractor.
Essentially, the work comprised the construction of materials handling facilities and overland conveyors.
The plaintiff commenced work in late July or early August 1996 and submitted progress claims to the defendant during the period July to November 1996. An issue then arose about the quality or grade of concrete which the plaintiff had used in constructing the foundations for an overland conveyor system.
On 12 November 1996, the plaintiff was informed that some $592,740 would be available to it for collection as part payment of a progress claim. However, a few days later, after the concrete quality issue emerged, the plaintiff was informed that no moneys would be paid and that an amount of up to $1.2 million would be withheld…
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- Case
- [2004] WASC 5
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the delay in bringing the action to court was so egregious that it warranted a strike-out, and whether the plaintiff's financial difficulties could be considered in assessing the delay. Additionally, the court had to consider the conduct of the plaintiff's solicitors and whether any prejudice to the defendant would result if the action proceeded. The court needed to balance the principle of ensuring the expeditious disposal of proceedings against the potential prejudice to the plaintiff if the action were to be dismissed.
The court held that while the delay in this case was substantial, it was not contumelious. The plaintiff's solicitors had acted diligently in attempting to secure funding for the case, and the delay was due to genuine financial hardship. The court found that the plaintiff's conduct, while not ideal, did not amount to contumacy. Further, the court determined that there was no significant prejudice to the defendant if the action proceeded, as the defendant had not suffered any significant detriment due to the delay. The court decided against striking out the action, allowing it to proceed.
The final orders of the court were that the defendant's application to strike out the plaintiff's action was dismissed. The court directed that the case proceed, subject to the plaintiff providing an undertaking as to costs to ensure that the trial was conducted efficiently and without further unnecessary delay.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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