Smith v Arabesque Pty Ltd - [2006] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Arabesque Pty Ltd [2006] QSC 292

PARTIES:

MARK KEITH SMITH

Plaintiff/Respondent

(Applicant in BS 6853 of 2006)

V

ARABESQUE PTY LTD

Defendant/Applicant

(Respondent in BS 6853 of 2006)

FILE NO/S:

No BS 5512 of 2004

BS 6853 of 2006

DIVISION:

Trial Division

PROCEEDING:

Applications for

(a) dismissal of claim for delay in prosecution

(b) leave to lodge a second caveat

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

6 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2006

JUDGE:

Robin A J

ORDER:

Applications dismissed

CATCHWORDS:

Uniform Civil Procedure Rules r 5(3), r 389, Land Title Act 1994 s 129 – inordinate delay by plaintiff in breach of express undertaking to prosecute claim expeditiously did not justify striking out where no order to take a specific step had been breached – circumstances in which plaintiff was refused leave to lodge a second caveat which would have replaced a specific undertaking (no longer operative) of the defendant to retain a fund representing (inter alia) a 5% interest in the land

COUNSEL:

Applicant/Plaintiff – Mr S Monks

Respondent/Defendant – Ms K Magee

SOLICITORS:

Applicant/Plaintiff – Colavitti Lillas

Respondent/Defendant – Haney Lawyers

The defendant Arabesque Pty Ltd applies to strike out the claim for want of prosecution. Mr Smith by his amended originating application (the amendment fixing up an erroneous reversal of the parties’ roles in the document originally filed) seeks leave under s 120 (more correctly s 129) of the Land Title Act 1994 to:

“lodge a Caveat in respect of Lot 4 on RP 817122 in the County of Carlisle, Parish of Bassett, being all that land contained in Title Reference 50044594, upon substantially the same grounds as those relied upon in Caveat No 707781428 lodged on or about 4 June 2004.”

He seeks also leave under r 377 of the UCPR to file an amended claim and a statement of claim in the claim proceeding. Counsel agreed that the amendment aspect, revealed (by an unfiled affidavit sworn on the date of the hearing) to be identification of an “equitable interest in the land” claimed all along as:
“A. as the proprietor of 5% thereof; or, alternatively
B.by way of lien or charge securing payment of the sum of $51,800 together with interest thereon at 9% per annum from 1 January 1996 until payment or judgment whichever is the earlier under section 47 of the Supreme Court Act 1995 (Qld) at the rates specified by Practice Direction from time to time”

(a declaration that the defendant holds 5 per cent on constructive trust remains)
ought to be pursued at a later date.

The parties’ dispute has a long history. The court was told that land is a valuable development site on the water at Shoal Point in Mackay. It is common ground that in 1993 or 1994 (depending on whether the statement of claim or defence is correct) the plaintiff became involved in an attempt to procure a development approval. The plaintiff pleads he was…

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.

Keep reading for free

Create a free CaseChat account to read Smith v Arabesque Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] QSC 292
Decision Date: 6 October 2006

CaseChat Overview and Summary

The plaintiff, Smith, brought a claim against Arabesque Pty Ltd, which involved issues of land title. The plaintiff sought to enforce an express undertaking by the defendant to retain a fund representing a 5% interest in the land. The case was heard in the Supreme Court of Queensland. The primary legal issue was whether the court should strike out the plaintiff's claim due to the plaintiff's inordinate delay in prosecuting the claim. The court also needed to determine whether the plaintiff should be granted leave to lodge a second caveat, which would replace the defendant's specific undertaking.

The court held that the plaintiff's inordinate delay did not justify striking out the claim because there was no order to take a specific step that had been breached. The court noted that the plaintiff had not been ordered to take a specific step within a particular time frame. Instead, the court had given the plaintiff leave to lodge a caveat as an alternative to the defendant's specific undertaking. The court held that the circumstances did not justify striking out the claim, as the delay was not so inordinate as to warrant such a sanction. The court also held that the plaintiff was refused leave to lodge a second caveat as it would have replaced the defendant's specific undertaking, which was no longer operative. The court held that the plaintiff had not shown any exceptional circumstances that would warrant the lodgement of a second caveat.

The court dismissed the applications brought by the plaintiff. The court held that the plaintiff's inordinate delay did not justify striking out the claim and that the plaintiff was refused leave to lodge a second caveat. The court held that the circumstances did not warrant the lodgement of a second caveat, as the defendant's specific undertaking was no longer operative. The court held that the plaintiff had not shown any exceptional circumstances that would warrant the lodgement of a second caveat. The applications brought by the plaintiff were dismissed.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v Arabesque Pty Ltd [2006] QSC 292
PARTIES:	MARK KEITH SMITH Plaintiff/Respondent (Applicant in BS 6853 of 2006) V ARABESQUE PTY LTD Defendant/Applicant (Respondent in BS 6853 of 2006)
FILE NO/S:	No BS 5512 of 2004 BS 6853 of 2006
DIVISION:	Trial Division
PROCEEDING:	Applications for (a) dismissal of claim for delay in prosecution (b) leave to lodge a second caveat
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	6 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2006
JUDGE:	Robin A J
ORDER:	Applications dismissed
CATCHWORDS:	Uniform Civil Procedure Rules r 5(3), r 389, Land Title Act 1994 s 129 – inordinate delay by plaintiff in breach of express undertaking to prosecute claim expeditiously did not justify striking out where no order to take a specific step had been breached – circumstances in which plaintiff was refused leave to lodge a second caveat which would have replaced a specific undertaking (no longer operative) of the defendant to retain a fund representing (inter alia) a 5% interest in the land
COUNSEL:	Applicant/Plaintiff – Mr S Monks Respondent/Defendant – Ms K Magee
SOLICITORS:	Applicant/Plaintiff – Colavitti Lillas Respondent/Defendant – Haney Lawyers