Smith v Yu Feng Pty Ltd - [2012] QDC 317

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Yu Feng Pty Ltd & Anor [2012] QDC 317

PARTIES:

LEANNE SMITH
(applicant)

v

YU FENG PROPRIETORY LIMITED
(ACN 056 974 844)
(first respondent)

and

YUAN CHIEH PROPRIETORY LIMITED
(ACN 067 120 370) trading as AUSTRALIA FAIR SHOPING CENTRE
(second respondent)

FILE NO/S:

17/08

DIVISION:

Civil

PROCEEDING:

Application for leave to proceed

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

19 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2012

JUDGE:

Farr SC, DCJ

ORDER:

Orders

1.          It is declared that there has not been a period of two years during which there has been no step taken in this proceeding.

2.          It is declared that any steps taken after 24 June 2010 are effectual.

3.          Unless there are submissions to the contrary I order that the applicant pay the respondent’s costs of and incidental to this application to be assessed on a standard basis.

CATCHWORDS:

PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – APPLICATION FOR LEAVE TO PROCEED – application for leave to proceed pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) after an alleged delay of more than two years without a step being taken in the proceeding – whether more than two years passed between steps in the proceeding – whether there had been a period in excess of one year during which no step was taken – whether steps taken should be set aside for failure to give notice of intention to proceed

Lowndes v Delaney & Anor [2008] QDC 93, applied

Perez v Transfield (Qld) Proprietary Limited (1979) Qd R 444, cited

Uniform Civil Procedure Rules 1999 (Qld), rr 371, 389

COUNSEL:

Ms O K Perkiss for the applicant
Mr F G Forde for the respondents

SOLICITORS:

Maurice Blackburn Lawyers for the applicant
Dibbs Barker for the respondents

The issues

This is an application pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The plaintiff is seeking leave to proceed after an alleged delay of more than two years without a step being taken in the proceeding.

Alternatively, counsel for the applicant has submitted that upon analysis of the steps that have been taken, the court will be satisfied that there has not been a period of two years during which no step has been taken in the proceeding. Counsel submits that if the court takes that view then a declaration to that effect should be made.

Counsel for the applicant has conceded however that even if the court takes the view that no period of two years elapsed without a step being taken in the proceeding, there has nevertheless been a failure on the part of the applicant to give one month’s notice to the defendants, as required by r 371(2) of the UCPR after a period of 12 months had passed without a step being taken.

The application is contested. Counsel for the respondents has submitted that the court should find…

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 Smith v Yu Feng Pty Ltd

Details

AGLC: Smith v Yu Feng Pty Ltd & Anor [2012] QDC 317
Case: [2012] QDC 317
Decision Date: 19 October 2012

CaseChat Overview and Summary

Smith filed an application for leave to proceed against Yu Feng Pty Ltd in the Queensland Supreme Court, seeking to continue with a legal action that had allegedly been delayed for over two years without any steps being taken. The issue before the court was whether there had been an uninterrupted period of more than two years between steps in the proceeding, which would necessitate the dismissal of the application under rule 389(2) of the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the court had to determine if there had been a period exceeding one year during which no steps were taken and whether the steps taken should be nullified due to the absence of notice of intention to proceed.

The court examined the procedural history of the case and identified that the two-year period during which no steps were taken was interrupted by actions taken on 24 June 2010. Consequently, the court ruled that there had not been a continuous period of two years without any steps in the proceeding. Furthermore, the court held that any steps taken after that date were valid and should not be set aside. The court also noted that no submissions had been made to challenge the effectiveness of the steps taken post-24 June 2010.

Given the findings, the court declared that there had not been a period of two years without any steps taken in the proceeding and that any steps taken after 24 June 2010 were effectual. The court ordered that unless contrary submissions were presented, the applicant would bear the respondent's costs of and incidental to the application, to be assessed on a standard basis.

Orders

Orders of the court

Orders

1. It is declared that there has not been a period of two years during which there has been no step taken in this proceeding.

2. It is declared that any steps taken after 24 June 2010 are effectual.

3. Unless there are submissions to the contrary I order that the applicant pay the respondent’s costs of and incidental to this application to be assessed on a standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Smith v Yu Feng Pty Ltd & Anor [2012] QDC 317
PARTIES:	LEANNE SMITH (applicant) v YU FENG PROPRIETORY LIMITED (ACN 056 974 844) (first respondent) and YUAN CHIEH PROPRIETORY LIMITED (ACN 067 120 370) trading as AUSTRALIA FAIR SHOPING CENTRE (second respondent)
FILE NO/S:	17/08
DIVISION:	Civil
PROCEEDING:	Application for leave to proceed
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	19 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2012
JUDGE:	Farr SC, DCJ
ORDER:	Orders 1. It is declared that there has not been a period of two years during which there has been no step taken in this proceeding. 2. It is declared that any steps taken after 24 June 2010 are effectual. 3. Unless there are submissions to the contrary I order that the applicant pay the respondent’s costs of and incidental to this application to be assessed on a standard basis.
CATCHWORDS:	PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – APPLICATION FOR LEAVE TO PROCEED – application for leave to proceed pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) after an alleged delay of more than two years without a step being taken in the proceeding – whether more than two years passed between steps in the proceeding – whether there had been a period in excess of one year during which no step was taken – whether steps taken should be set aside for failure to give notice of intention to proceed Lowndes v Delaney & Anor [2008] QDC 93, applied Perez v Transfield (Qld) Proprietary Limited (1979) Qd R 444, cited Uniform Civil Procedure Rules 1999 (Qld), rr 371, 389
COUNSEL:	Ms O K Perkiss for the applicant Mr F G Forde for the respondents
SOLICITORS:	Maurice Blackburn Lawyers for the applicant Dibbs Barker for the respondents