NAB Ltd v Domnick

[2012] QDC 35

DISTRICT COURT OF QUEENSLAND

CITATION:

NAB Ltd v Domnick & Anor [2012] QDC 35

PARTIES:

NATIONAL AUSTRALIA BANK LIMITED ABN 12004044937
(Plaintiff)

v

BERNARD WAYNE DOMNICK
(First Defendant)

and

CHRISTINE MARIA AKA CHRISTINE MARIE HACKNER
(Second Defendant)

FILE NO/S:

57/09

DIVISION:

Civil jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

14 March 2012

DELIVERED AT:

Maroochydore

HEARING DATE:

19 August 2011

JUDGE:

Long SC, DCJ

ORDER:

Application by the plaintiff for leave to proceed in claim numbered 57 of 2009, is dismissed

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE  - RELEVANT CONSIDERATIONS – delay since last step in the litigation proceedings – second defendant seeks dismissal for want of prosecution - plaintiff seeks leave to proceed – whether plaintiff’s explanation for delay is reasonable – whether prejudice suffered by the second defendant as a result of the delay

LEGISLATION:

Trade Practices Act 1974 (Cth), s 52

Uniform Civil Procedure Rules 1999 (Qld), r 5, 280, 398

CASES:

Cooper v Hopgood and Ganim [1999] 2 Qd R 113.

Dick v Alan Powell Holdings & Ors [2008] QSC 219.

Field v Luxor Products Pty Ltd & Anor [2009] QSC 218.

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

Quinlan v Rothwell & Anor [2002] 1 Qd R 647.

Tylerv Custom Credit Corp Ltd & Ors [2000] QCA 178.

COUNSEL:

D. Topp on behalf of the applicant/second defendant.

M.A. Maskell, solicitor, on behalf of the respondent/plaintiff.

SOLICITORS:

Greenhalgh Pickard on behalf of the applicant/second defendant.

Thynne & McCartney on behalf of the respondent/plaintiff.

Introduction

1. There are two applications to be considered in this matter.  The first made in point of time, is the second defendant’s application for an order dismissing the plaintiff’s claim, essentially, for want of prosecution.  In this regard the second defendant relies upon UCPR 280 and/or UCPR 5(4).

1. It is not in dispute that to the extent that it is necessary, the pre-condition for the potential application of UCPR 280 is satisfied.  This is because the last step taken in this proceeding occurred over two years prior to the filing of this application.[1]

   [1]that was the disclosure by the plaintiff, on 2 June 2009 of a solicitor’s certificate in respect of the execution of the subject loan documentation.

1. Accordingly, the plaintiff is required to and does cross-apply pursuant to UCPR 389(2) for leave of the court, to proceed.  It is agreed that these applications be heard and determined together, as they are a logically related and similar considerations arise on each application.

The Circumstances

1. The plaintiff’s claim and statement of claim was filed, in the Supreme Court, on 24 May 2007.  The plaintiff claims against both the first and second defendants, an amount of $69,899.99, for monies due pursuant to a guarantee and indemnity, dated 9 August 2004, together with interest at a contractual rate of 14.55% and costs.  The plaintiff also claimed, but only…