Teitzel v Bull

[2005] QDC 197

[2005] QDC 197

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1691 of 1996

PETER JOSEPH TEITZEL	Plaintiff
and
DAVID EDWARD BULL	Defendant

BRISBANE

..DATE 14/06/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 7, r 156, r 371, r 376, r 381 plaintiff twice failed to comply with 14 day period fixed by r 381 to file an amended claim seeking compound interest and statement of claim under orders granting leave - on second occasion delay was a few days only - on a further application the court utilized of the rules apparently available r 371 to declare the late filing effectual.

HIS HONOUR:  This is an ancient proceeding in which the plaintiff is having an amazing amount of trouble amending his claim and statement of claim to seek compound interest.  He is claiming $90,000 which represented a loan to the defendant as a means of financing a business venture which, unfortunately, did not prosper.

The plaintiff had borrowed expensively to find the funds he made available and claims that was known to the defendant.  He therefore wishes to seek compound interest, presumably as a means of avoiding being out of pocket.  The extent of the compound interest claim is confined as Mr Van der Walt who appears for the plaintiff tells me, because at some point, the plaintiff's father enabled the original borrowing by Mr Teitzel to be paid out.  He charged only simple interest, there is something like $25,000 at issue here for the finite period when interest was compounding.

The plaintiff and his advisors have had limited confidence in the efficacy of rule 156 to clearly authorise the claim for compound interest in light of the rules which precede it.  This is the plaintiff's third application to the Court to amend his proceedings to claim compound interest.  The fact that the plaintiff is interstate, perhaps without easy access to solicitors, and obliged to use agents may explain some of the confusion which is of an unusual order - and no doubt wholly frustrating to the defendant who has not, for his part, raised particular difficulties until very recently.

The Chief Judge on 25th of July 2002 gave the plaintiff leave to amend as he wished to without specifying a time within which it ought to happen; the consequence is that rule 381 of Uniform Civil Procedure Rules applied to allow 14 days. It seems inescapable that the plaintiff's advisors overlooked this provision and it was not for some months (after a change of solicitors) that amended proceedings were filed. That is correct, is it not, Mr Van der Walt?

...

HIS HONOUR:  The defendant apparently objected to the lateness of this and the plaintiff tried again, this time obtaining an order from Judge Boulton on the 19th March 2003 authorising the same amendments.  On the day following, the defendant filed an amended pleading raising the Rule 381 point so that the plaintiff was fairly placed on notice.

Once again, there was a failure to file amended proceedings within time although the default on this occasion was a matter of days only, the amended claim having been filed on 7th of April 2003.  The plaintiff wishes to regularise what has occurred.  The defendant says this ought not be permitted.  If it is, he should get his costs.

In my opinion, there is nothing final one way or another in permitting the plaintiff to proceed with a claim for compound interest.  The merits or justice of the case may well make it appropriate for the Court at trial to award compound interest if for some reason this cannot be achieved by way of damages.

There has been no occasion today to go into the niceties of the Hungerfords' case (171 CLR 125) or other decisions. In my opinion, in the circumstances, the plaintiff ought to be indulged on this occasion. The application offers the Court possibilities of proceeding under Rule 7 of the UCPR or under Rule 376(4). Mr Van der Walt's latest thought is to invoke Rule 371.

I think those rules all may be available, but I am grateful to seize on the new suggestion which leads to the Court's declaring that the filing on the 7th of April 2003 of an amended claim and statement of claim was effectual notwithstanding that it did not occur within the 14 days permitted by Rule 381 after Judge Boulton's order of the 19th of March 2003, and that will be the Court's order.

In relation to costs, the plaintiff's submission is that there ought to be no order as to costs.  Mr Clutterbuck seeks costs for his client on the basis that he has been mucked around enough.  I think that today's outcome was fairly close to inevitable in the circumstances, and that the defendant might have realistically cooperated for a third time.  Notwithstanding that, I think he is entitled to some recognition in respect of costs.

So, the costs order will be that the plaintiff pay the defendant his costs, if any, occasioned by the amendment and also one-half of his costs of the application, costs to be assessed on the standard basis.

...

HIS HONOUR:  All right.  Well, I will make that order as well,  that if the defendant is going to plead further, he has got 21 days to do it.

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