Tyler v Custom Credit Corp Ltd & Ors

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SUPREME COURT OF QUEENSLAND

CITATION: Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
PARTIES: DOUGLAS KEITH TYLER
(respondent)
v
CUSTOM CREDIT CORPORATION LIMITED
(appellant)
BREENS (a firm)
(first third party)
GADENS RIDGEWAY (a firm)
(second third party)
FILE NO/S: Appeal No 9466 of 1999
SC No 4944 of 1986
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON: 19 May 2000
DELIVERED AT: Brisbane
HEARING DATE: 24 March 2000
JUDGES: McMurdo P, McPherson JA, Atkinson J
Joint reasons for judgment of McMurdo P and McPherson JA; separate reasons of Atkinson J, concurring as to the order made.
ORDER: Appeal dismissed with costs.
CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE – RELEVANT CONSIDERATIONS

Uniform Civil Procedure Rules 1999, r 389

Birkett v James [1978] AC 297, considered
Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Vic SC (Appeal Div), No 4901 of 1989, 9 September 1994, considered and distinguished
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered
Cooper v Hopgood & Ganim [1999] 2 QdR 113, applied
Dempsey v Dorber [1990] 1 QdR 418, considered
Hoy v Honan CA No 4058 of 1996, 19 August 1997, considered
Jeogla v ANZ Bank [1999] NSWSC 563, considered
Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992, considered

Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405, considered

COUNSEL:

G A Thompson SC for the appellant
R G Bain QC for the respondent

SOLICITORS: Mallesons Stephen Jaques for the appellant
Crouch & Lyndon Solicitors for the respondent
Allen Allen & Helmsley for the first and second third parties
  1. McMURDO P AND McPHERSON JA:  We agree with the reasons of Atkinson J, which we have had the advantage of reading.  The appeal should be dismissed with costs.

  1. ATKINSON J:  When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules (“UCPR”) r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed.[1]  These include:

    [1]Cooper v Hopgood & Ganim [1999] 2 QdR 113 at 119.

(1)how long ago the events alleged in the statement of claim occurred[2] and what delay there was before the litigation was commenced;

[2]Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1207-1208 per Lord Griffiths; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Supreme Court of Victoria, Appeal Div, No 4901 of 1989, 9 September 1994 at 22, 23; Hoy v Honan CA No 4058 of 1996, 19 August 1997 at 4; Cooper v Hopgood & Ganim (supra) at 120, 121.

(2)how long ago the litigation was commenced or causes of action…

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Details
Case
[2000] QCA 178
Decision Date

CaseChat Overview and Summary

The matter before the court involved a plaintiff, Tyler, who sought to enforce a judgment against the defendants, Custom Credit Corp Ltd and others. The dispute arose from the defendants' failure to comply with the judgment, leading to the plaintiff's application for an order enforcing the judgment. The case was heard in the Supreme Court of New South Wales. The defendants contested the enforcement of the judgment, arguing that the plaintiff had not adequately prosecuted the case. The court had to determine whether the plaintiff had taken reasonable steps to enforce the judgment and whether the defendants' delay in complying with the judgment warranted a dismissal of the proceedings.

The primary legal issue before the court was whether the plaintiff's delay in enforcing the judgment constituted a want of prosecution, justifying the dismissal of the proceedings. The court considered the principles governing the dismissal of proceedings for want of prosecution, including the importance of enforcing judgments and the discretion of the court to manage its own processes. The court also examined the factors relevant to determining whether the plaintiff had acted reasonably in enforcing the judgment, such as the length of the delay, the reason for the delay, and the prejudice caused to the defendants.

The court held that the plaintiff had not acted unreasonably in enforcing the judgment and that the defendants' delay in complying with the judgment did not warrant a dismissal of the proceedings. The court found that the plaintiff had taken reasonable steps to enforce the judgment and that the defendants' delay was not sufficient to justify the dismissal of the proceedings. The court emphasised the importance of enforcing judgments and the need for parties to comply with court orders. The appeal was dismissed with costs.

The court did not make any specific orders regarding the enforcement of the judgment but noted that the plaintiff could seek further orders if necessary to enforce the judgment. The dismissal of the appeal meant that the plaintiff's application to enforce the judgment was not dismissed on the grounds of want of prosecution.

Orders

Orders of the court

Appeal dismissed with costs.

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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