Pearce v Marzullo

[2013] QSC 110

SUPREME COURT OF QUEENSLAND

CITATION:	Pearce & Anor v Marzullo [2013] QSC 110
PARTIES:	MARK WILLIAM PEARCE (plaintiff/first applicant) REVOLUTION WHOLEFOODS PTY LTD ACN 118 261 984 (plaintiff/second applicant) v ALFINA MARZULLO (defendant/respondent)
FILE NO:	BS 7512/11
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	17 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	17 April 2013
JUDGE:	Atkinson J
ORDER:	Order as per draft as amended.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where liquidator appointed by court order – where defendant required to take all reasonable steps to sell property under settlement agreement – where liquidator was dissatisfied with steps taken and applied for summary judgment against the defendant – where slow progress of matter led to case flow intervention notice – where self-executing case flow order required parties to file a request for trial date on or before 14 December 2012, failing which the proceedings would be deemed resolved – where parties began new proceedings for summary judgment – where self-executing order was overlooked and not vacated – whether the matter should be reactivated
COUNSEL:	P B Scott (sol) for the plaintiff The defendant appeared on her own behalf
SOLICITORS:	Crouch & Lyndon for the plaintiff The defendant appeared on her own behalf

HER HONOUR:  This is an application for reactivation of a matter that was deemed resolved as a result of a
self-executing order made by me.

The matter relates to an action by a liquidator of a company against its former director.  On 28 September 2007, Mark William Pearce was appointed as liquidator to a company known as Revolution Wholefoods Pty Ltd by order of this Court.

The liquidator took action against the defendant and her husband and that was listed for trial in August 2009.  A mediation, however, was held after the trial was adjourned and the matter was resolved with terms of settlement being drawn and signed by the parties on 17 November 2009.  Those terms of settlement are set out in an affidavit filed by Mr Heers in this matter.

Clause 4 required the first defendant, who is the defendant in this action, to take all reasonable steps to sell a property in Auchenflower on an arms-length basis at fair market value and that if she did not then the liquidator, Mr Pearce, was irrevocably appointed to effect such sale.

As a result of the plaintiffs' dissatisfaction with the actions of the defendant in taking steps to attempt to sell her property, the plaintiff brought an application for summary judgment against the defendant based on the settlement agreement.
That application for summary judgment was dismissed by consent without being heard on its merits on 15 February 2012 and because of the slow progress in this matter on 31 August 2012 I made orders in this matter under a case flow intervention notice.

It gave detailed orders for various matters to take place and the last of those orders was that the parties file a request for trial date on or before 14 December 2012, failing which the proceedings would be deemed resolved.

Due to a different position taken by the first mortgagee the plaintiff determined to file a further summary judgment application on 28 September 2012.  That matter was heard by Justice McMurdo on 8 November 2012.  He gave detailed reasons for the orders that he made and he gave leave to the plaintiffs to make the application for summary judgment, adjourned the application to a date to be fixed and directed the plaintiffs to file and serve an amended statement of claim within 14 days.

The amended statement of claim was filed on 4 December 2012 and then an amended defence and counterclaim on 7 December 2012.  The plaintiff filed a reply and answer on 21 December 2012.  However, as a result of an oversight it did not seek the vacation of the self-executing order that had been made by me that if the parties did not file a request for trial date on or before 14 December 2012 the matter would be deemed resolved.

Justice McMurdo made strong comments about the validity of the plaintiffs' claims, which suggested that the plaintiff does have a very strong claim in this matter.  I accept that it was merely an oversight not to vacate my order and, had that been brought to my attention or Justice McMurdo's attention, it would of course have been vacated given the orders that were made by Justice McMurdo for the further progress of this matter.

In those circumstances, it is appropriate to reactivate this matter and I order that the proceedings are reactivated.  The plaintiff is at liberty to relist the application for summary judgment for hearing by 14 June 2013.

A request for trial date is to be filed by 26 July 2013, following which the matter will be deemed resolved and there will be no order as to costs.

I will make the order as per draft as amended, which I will initial and place with the file.

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