Munkberg Pty Ltd v Endopine Pty Ltd [No 2]
[2012] WASC 186
•7 JUNE 2012
MUNKBERG PTY LTD -v- ENDOPINE PTY LTD [No 2] [2012] WASC 186
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 186 | |
| Case No: | CIV:2302/2005 | 11 APRIL 2012 | |
| Coram: | MASTER SANDERSON | 7/06/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | MUNKBERG PTY LTD (ACN 078 824 567) SWANSDALE PTY LTD (ACN 079 005 477) ENDOPINE PTY LTD (ACN 079 030 452) LUPIN NOMINEES PTY LTD (ACN 008 998 990) GECKO MANAGEMENT PTY LTD (ACN 083 043 243) KAHMIA HOLDINGS PTY LTD (ACN 112 315 689) MARK JOHN BEESON LYNDON EDWARD DYSON |
Catchwords: | Practice and procedure Application to lead further affidavit evidence Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
SWANSDALE PTY LTD (ACN 079 005 477)
Second Plaintiff
AND
ENDOPINE PTY LTD (ACN 079 030 452)
First Defendant
LUPIN NOMINEES PTY LTD (ACN 008 998 990)
Second Defendant
GECKO MANAGEMENT PTY LTD (ACN 083 043 243)
Third Defendant
KAHMIA HOLDINGS PTY LTD (ACN 112 315 689)
Fourth Defendant
MARK JOHN BEESON
Fifth Defendant
LYNDON EDWARD DYSON
Sixth Defendant
(Page 2)
Catchwords:
Practice and procedure - Application to lead further affidavit evidence - Turns on own facts
Legislation:
Nil
Result:
Application refused
Category: B
Representation:
Counsel:
First Plaintiff : Mr J C Vaughan
Second Plaintiff : Mr J C Vaughan
First Defendant : Mr D R Williams QC
Second Defendant : Mr D R Williams QC
Third Defendant : No appearance
Fourth Defendant : Mr D R Williams QC
Fifth Defendant : Mr D R Williams QC
Sixth Defendant : Mr D R Williams QC
Solicitors:
First Plaintiff : Tottle Partners
Second Plaintiff : Tottle Partners
First Defendant : Haydn Robinson
Second Defendant : Haydn Robinson
Third Defendant : No appearance
Fourth Defendant : Haydn Robinson
Fifth Defendant : Haydn Robinson
Sixth Defendant : Haydn Robinson
Case(s) referred to in judgment(s):
Nil
(Page 4)
1 MASTER SANDERSON: This is an application by the plaintiffs for leave to adduce further affidavit evidence on the defendants' application to strike out the action for want of prosecution. The history of this action and the present state of the evidence filed on behalf of the plaintiffs in the strike-out application makes the application of particular importance.
2 It is appropriate to begin with a brief history of proceedings to date. The writ which was indorsed with a statement of claim was issued on 2 November 2005. A defence was filed on 21 December 2005 and the defendants brought an application for security for costs on 11 January 2006. On 18 January 2006, consent orders were made requiring the plaintiffs to file and serve answering affidavits to the security application by 2 February 2006. The plaintiffs' submission and list of authorities was to be filed by 16 February 2006. No affidavits or submissions were filed.
3 A special appointment was set for 11 April 2006 to determine the security for costs application. On that day, an affidavit on behalf of the plaintiffs was filed and served. The special appointment could not proceed and was adjourned to 18 May 2006. The plaintiffs were ordered to file and serve any affidavits and submissions by 28 April 2006. Once again, no affidavits or submissions were filed. That necessitated a further adjournment of the application to 2 June 2006. The plaintiffs were ordered to file and serve affidavits and submissions by 25 May 2006.
4 On 2 June 2006, the hearing was further adjourned to allow the parties to mediate. A mediation order was made which required the plaintiffs to request a date for mediation. No such request was made, so no mediation took place.
5 The security for costs application was eventually heard on 24 October 2006 - that is, more than 20 months after it had been lodged. The delay in dealing with the application was due entirely to the plaintiffs - or at least the plaintiffs' solicitors. On 3 November 2006, I refused the defendants' application. On 10 November 2006, the defendants filed a notice of appeal from that decision. The plaintiffs were required to file an answer to the appeal by 7 February 2007. This they failed to do. A Court of Appeal directions hearing on 15 February 2007 was vacated because the plaintiffs' answer had not been filed. On 27 February 2007, the plaintiffs were ordered to file their legal authorities for the appeal by 28 February 2007. They failed to comply with that order.
6 On 11 June 2007, the appeal was listed for hearing on 3 August 2007. On 2 August 2007, the plaintiffs filed late supplementary
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- submissions and a notice of contention in the appeal. The appeal was heard and an extempore judgment was delivered. The appeal was successful and the plaintiffs were required to pay $100,000 into court as security by 24 August 2007.
7 By consent, the time for payment into court was extended to 6 September 2007. In fact, the payment was not made until 11 March 2009. It would appear on 5 September 2007, moneys were paid into the plaintiffs' solicitor's trust account by officers of the plaintiffs to allow security to be paid into court. These funds then sat in the plaintiffs' solicitor's trust account for over 18 months. I will have more to say about this issue later in these reasons.
8 On 20 October 2010, there having been no further substantive steps in the matter since the determination of the appeal on 3 August 2007, the defendants proposed the plaintiffs' action be dismissed with costs. That suggestion received no response. On 22 February 2011, the defendants made this application. The application was first returned on 3 March 2011. Consent orders made at that hearing required the plaintiffs to file and serve affidavits by 31 March 2011. On 14 March 2011, the application was listed for a special appointment on 5 May 2011. On 5 May 2011, the hearing was adjourned on the basis issues had arisen between the plaintiffs and their solicitors. The plaintiffs terminated the retainer of the solicitors who had been acting for them up to that point on or about 9 May 2011. They then engaged the present firm of solicitors.
9 The present firm of solicitors received the plaintiffs' files from the former solicitors on 17 May 2011. On 21 June 2011, the plaintiffs' solicitors sent copies of two affidavits to the defendants' solicitors foreshadowing an application to rely on further evidence and inviting conferral. On 5 July 2011, two further affidavits were forwarded to the defendants' solicitors. The defendants were invited to consider withdrawing the strike-out application in light of those affidavits.
10 The solicitors for the parties have conferred regularly since June 2011. The defendants' solicitors requested the plaintiffs refrain from filing this application until 20 January 2012 to allow the defendants the opportunity to seek advice from senior counsel as to whether the defendants should proceed with the strike-out application. The plaintiffs agreed. No agreement could be reached. On 9 February 2011, the plaintiffs filed an affidavit of Ms Yin Chieh Fang, sworn the same day. This affidavit was relied upon by the plaintiffs in their application. It annexes a series of emails passing between Tottle Partners, the plaintiffs'
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- present solicitors, and the defendants' solicitor between 21 June 2011 and 20 January 2012. It also annexes five affidavits which the plaintiffs now seek to rely upon. They are two affidavits of Donna Lorraine Pearson, sworn respectively 21 June 2011 and 9 February 2012, two affidavits of Ian Charles Hamilton, sworn 5 July 2011 and 8 February 2012, an affidavit of Ms Yin Chieh Fang, sworn 21 June 2011 and an affidavit of Mr Gary Richard Dean, sworn 4 July 2011. In opposition to the application, the defendants relied upon an affidavit of Haydn Ross Robinson, sworn 21 March 2012.
11 Ms Pearson is the sole director of the second plaintiff. Mr Hamilton is the sole director of the first plaintiff. At all material times, they appear to have acted in concert and there is no material difference between their evidence. It is unnecessary to go through their affidavits line-by-line. They say they were not aware of the reasons why various appointments dealing with the security for costs application were adjourned. They were unaware a mediation order had been made until they were advised by their present solicitors this was the case. They are at a loss to explain why the money they paid to their solicitors was not paid into court by their former solicitors and they are unable to explain why no steps were taken in the proceedings between the date on which they paid the funds for security to their solicitors and the date of the application for security for costs.
12 They were not aware of the letter from the defendants' solicitors of 20 October 2010 suggesting the matter be struck out with costs. They did not become aware of the strike-out application until late March of 2011. They were not asked to swear any affidavit in opposition to the application. On 18 April 2010, they were advised that Mr Dean was to be briefed to resist the application. They did not meet with Mr Dean until 5 May 2010, although Ms Pearson had spoken to Mr Dean the evening before.
13 Mr Dean, in his affidavit, confirms when briefed he took the view there was a serious conflict of interest between the plaintiffs and their then solicitors. He advised an adjournment of the application be sought for that reason. In fact, that was done and it was on that basis I granted the adjournment.
14 The position of the plaintiffs can be summarised in this way. They say the affidavits they propose to file are necessary to establish the persons behind each of the plaintiffs was not complicit in the delays in progressing this action. They say this is material to determining the strike-out application and to that extent, they are clearly correct. They say
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- to refuse leave to rely on these affidavits would significantly prejudice the plaintiffs and, once again, they are clearly correct. They say it is in the interests of justice they be allowed to rely upon this affidavit material, otherwise the application will be determined in the absence of relevant evidence. While they accept the plaintiffs have suffered prejudice, occasioned by the delay in resolving the application, they say the defendants cannot point to any particular prejudice which sets them apart from any other litigant. In essence, they are saying the sins of the plaintiffs' former solicitors ought not be visited upon them.
15 For their part, the defendants say this matter has gone on long enough. Proceedings were issued in 2005 and six and a half years later have not moved beyond the provision of a statement of claim and defence. All of the delay has been occasioned by the plaintiffs. There is a period between June 2011 and January 2012 when negotiations as to the admissibility of further affidavit evidence was under discussion and the defendants accept this should not be visited upon the plaintiffs. They say if the plaintiffs' solicitors behaved as alleged, the plaintiffs have a right of action against those solicitors and that is the way the matter ought proceed. They submit it is not in the interests of justice to allow this further evidence to be tendered. If it is, the defendants will need to seek an adjournment to consider whether they, in turn, should tender further evidence.
16 The defendants' solicitors also point to the fact allegations have been made by the plaintiffs against their former solicitors without these solicitors having the chance to respond. The defendants make the perfectly valid point all of the evidence directed at the failings of the plaintiffs' former solicitors are unanswered and cannot really be challenged by the defendants.
17 In Mr Robinson's affidavits, he takes issue with the evidence of Ms Pearson and Mr Hamilton that they did not appreciate their former solicitors were not proceeding expeditiously with this matter. The purpose of the second of the affidavits sworn by each of Ms Pearson and Mr Hamilton was to address this question. This is not the occasion to examine that evidence in detail. If the affidavits are admitted, that can be done on the hearing of the strike-out application. However, what Mr Robinson's affidavit makes plain is if further evidence from the plaintiffs is admitted, it is not certain the strike-out application will be defeated. The defendants will not concede the delay was occasioned just by the plaintiffs' solicitors without involvement of officers of the plaintiffs.
(Page 8)
18 In the end, this application requires a balancing of the interests of justice. This matter has gone on too long. If that is the fault of the plaintiffs' former solicitors, then they should bear the consequences. Too many orders have been made and flouted without explanation. No system of justice can run efficiently in those circumstances. The defendants have had this case hanging over their heads for over six years without there being any significant advance in the litigation. To now delay the matter further by allowing these affidavits into evidence is more than the defendants can be expected to bear.
19 The application is refused. I will hear the parties as to costs and how the matter should proceed from this point.
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