Resseck Pty Ltd v Buchanan - [2011] QDC 177

[2011] QDC 177

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN SC

No 680 of 2010

RESSECK PTY LTD (ACN 068 499 196)	Plaintiff
and
PETER JOHN BUCHANAN	Defendant

BRISBANE

..DATE 10/08/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 374

Judgement refused against a defendant who failed to comply with orders to make disclosure and pay costs - plaintiff's application defective because the application on its face did not state the grounds on which it was based

HIS HONOUR: The court records undertakings by the defendant's solicitor to pay over to the plaintiff's solicitors the amounts of the costs orders in its favour of the 1st of October 2010, 25th of January, 2011, and 22nd March 2011 by the 12th of August 2011, and to provide within 14 days from today:

(a)an amended list of documents to bring the defendant's disclosure up to date, including identification of any documents previously disclosed which the defendant no longer has access to; and

(b) a signed request for trial date.

I dismiss the application of the plaintiff filed on the 6th of July 2011 and there is no order as to costs, the reasons for which I will now explain.

This is but the latest in a series of attempts the plaintiff has made to obtain judgment for its claim against the defendant without a trial on the merits. He is sued as guarantor of the obligations of a purchaser of produce from the plaintiff.

The assertions he makes include ones of overcharging by the plaintiff, which he says was limited by an agreement, apparently oral, that the prices to be charged would be cost price plus a mark-up of 10 to 14 per cent. In the circumstances, his contention is that excessive mark-ups were applied. That contention is made not only in the defence but in support of a counter-claim seeking relief of a Trade Practices Act kind.

The present application is based on Rule 374 which applies if a party does not comply with an order to take a step in a proceeding. The orders that the court may make include under subrule (5)(a) giving judgment against the party served with the application. The orders which it's asserted the defendant didn't comply with include three costs orders. I may say I'm doubtful about the appropriateness of granting a judgment which, as a matter of merits, may be entirely unwarranted, against a defendant who has not satisfied costs orders. As it happens, Mr Miotti is now in possession of funds in his firm's trust account which will enable that matter to be attended to.

The other aspect of non-compliance with an order concerns a failure to produce copies of documents which have been disclosed. Belatedly, what Mr Miotti has has been made available. That's occurred since the application was filed and served. What has been made available does not include what Mr Miotti describes as documents which the plaintiff has and has itself disclosed. Those are for the most part or entirely the invoices…

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.

Continue reading Resseck Pty Ltd v Buchanan

Details

AGLC: Resseck Pty Ltd v Buchanan [2011] QDC 177
Case: [2011] QDC 177
Decision Date: 10/08/2011

CaseChat Overview and Summary

In the case of Resseck Pty Ltd v Buchanan, the plaintiff, Resseck Pty Ltd, sought to obtain a judgment against the defendant, Peter John Buchanan, without a trial on the merits. Buchanan was sued as a guarantor of the obligations of a purchaser of produce from the plaintiff. The plaintiff's application was based on Rule 374, which applies if a party does not comply with an order to take a step in a proceeding. Buchanan's non-compliance with the orders included failing to make disclosure and pay costs. The plaintiff's application was dismissed because it did not state the grounds on which it was based.

The legal issues the court had to decide were whether the plaintiff's application was within the rule and whether the court should impose a judgment against Buchanan, who had failed to comply with the orders. The court considered the nature of the non-compliance and the potential consequences of granting judgment against Buchanan. The court was also concerned about the appropriateness of granting a judgment which may be entirely unwarranted against a defendant who had not satisfied the costs orders. The court noted that Buchanan had since made arrangements to comply with the orders.

The court's reasoning was that the plaintiff's application was not within the rule because it did not set out the grounds on which it was based. The court also considered that imposing a judgment against Buchanan, who had failed to comply with the orders, would be inappropriate in the circumstances. The court was satisfied that Buchanan had fixed the issues and that orders had been made which appropriately advanced matters. The court dismissed the plaintiff's application and there was no order as to costs.

The final orders of the court were that Buchanan's solicitor was to pay over to the plaintiff's solicitors the amounts of the costs orders in its favour of the 1st of October 2010, 25th of January 2011, and 22nd March 2011 by the 12th of August 2011, and to provide within 14 days from today an amended list of documents to bring Buchanan's disclosure up to date, including identification of any documents previously disclosed which Buchanan no longer had access to, and a signed request for trial date.

Orders