Monaveen Pty Ltd v ABB Service Pty Ltd - [2004] WASC 5

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…

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.

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Details

Case: [2004] WASC 5
Decision Date: 22 JANUARY 2004

CaseChat Overview and Summary

The matter in Monaveen Pty Ltd v ABB Service Pty Ltd involved a dispute between the plaintiff, Monaveen, and the defendant, ABB Service, before the Supreme Court of New South Wales. Monaveen sought damages for breach of contract and negligence related to a heating, ventilation, and air conditioning (HVAC) system. The defendant applied to strike out the plaintiff's action due to significant delays, attributing the delays to the plaintiff's financial difficulties. The court was tasked with determining whether the delay was contumelious and whether it would cause undue hardship to the plaintiff if the action proceeded.

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