Stubbings v Tenkate

[2004] QDC 181

DISTRICT COURT OF QUEENSLAND

CITATION:

Stubbings v Tenkate & Ors [2004] QDC 181

PARTIES:

MALCOLM JOHN STUBBINGS
Plaintiff
v
ALEXANDER RICHARD TENKATE
First Defendant
and
LEFT STOCK PTY LTD (ACN 010 838 703)
Second Defendant
and
ROBERT GOODMAN
Third Defendant

FILE NO/S:

D2711 of 2000

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland at Brisbane

DELIVERED ON:

11 June 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2004

JUDGE:

Judge Alan Wilson SC

ORDER:

1.   That the plaintiff has leave to proceed with this action under r398(2) by taking a new step

2. That the respondent plaintiff pay the applicant first and second defendant’s costs of and incidental to their application (and the plaintiff’s application under r389(2)), assessed on the standard basis

CATCHWORDS:

PROCEDURE – dismissal of proceedings for want of prosecution – leave to proceed after delay of more than two years – principles applicable – relevant considerations

Trade Practices Act
Uniform Civil Procedure Rules 1999, rr 5,280,371,389

Cases considered:
Cooper v Hopgood & Ganim (1999) 2 Qd R 113 Dempsey v Dorber (1991) Qd R 418 at 420
Lilyville Pty Ltd v Colonial Mutual Life Assurance Ltd (1999) QSC 372
Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292
Tyler v Custom Credit Corporation Limited & Ors [2000] QCA 178

COUNSEL:

Mr A Hoare for the applicant first and second defendants
Mr P W Hackett for the respondent plaintiff

SOLICITORS:

Abbott Tout for the applicant first and second defendants
Baker Johnson for the respondent plaintiff

1. This proceeding began as an application by the first and second defendants to strike out the plaintiff’s action for want of prosecution.  On its face, the application was brought under UCPR r 280[1].  The third defendant was served, but did not appear.  Initially, the plaintiff resisted the application on the basis that there had been no inordinate delay and, in particular, no delay of more than two years (an argument founded on UCPR r 389(2), which prevents a party from taking a new step without leave, when more than two years have elapsed since the last step).

   [1] Application filed 23 April 2004

1. In the course of the hearing it became apparent, however, that the plaintiff had not taken a step in the action since 28 August 2001 and his counsel, Mr Hackett, applied instanter for leave under r 389(2). That course was not opposed by the first and second defendants (who had previously urged it[2]) who contended, nevertheless, that leave should be refused.

   [2] Affidavit of Paul Wayne Evans filed 23 April 2004, Ex PWE-30

1. The claim arises out of the plaintiff’s sale of his interest in a partnership to the first defendant in September 1994.  He alleges the sale was induced by oral misrepresentations made by the first defendant on his own behalf, and on behalf of the second defendant.  The defence of the first and second defendants denies the representations were made, although a statement they provided to their solicitors which was disclosed in the proceedings appears to…