Ure v Robertson

Case [2016] QSC 210

SUPREME COURT OF QUEENSLAND

CITATION:

Ure v Robertson & Ors [2016] QSC 210

PARTIES:

LYNNE KATHLEEN URE

(plaintiff)

v

PATRICIA JUNE ROBERTSON

(defendant)

AND

LYNNE KATHLEEN URE
(first defendant by counterclaim)

AND

RONALD URE
(second defendant by counterclaim)

AND

SUMMERHILL PROPERTY DEVELOPMENTS PTY LTD (ACN 010 558 460)
(third defendant by counterclaim)

FILE NO:

No 2634 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2016

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   The parties will be heard on the appropriate form of order to give effect to paragraphs [1] to [95] of these reasons.

2.   The defendant’s application for an order releasing the undertaking given to the Federal Court is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the plaintiff filed a claim in March 2007 and the defendant filed a counterclaim in September 2010 – where the case concerned an alleged oral agreement made almost 10 years ago, and the parties proposed to expand the dispute to encompass prior business dealings – where there were long periods of delay caused by different sides of the record at different times – where the more recent delay was the responsibility of the plaintiff and defendants by counterclaim, but the defendant had also done nothing to progress the counterclaim – where the defendant applied to dismiss the claim for want of prosecution and the plaintiff applied for leave to proceed – where UCPR r 389 provided that if no step was taken in a proceeding for 2 years, a new step could not be taken without an order of the court – whether the claim and the counterclaim should be dismissed for want of prosecution

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – UNDERTAKING IN COURSE OF LEGAL PROCEEDING – whether a state court could make an order relieving a party from an undertaking given to the Federal Court

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4, s 5
Limitation of Actions Act 1974 (Qld), s 10
Rules of the Supreme Court 1900 (Qld), O 90 r 9, O 93 r 17, O 93 r 18

Uniform Civil Procedure Rules 1999 (Qld), r 280, r 371, r 389

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited
Australian Securities and Investments Commission v McIntyre [2008] 1 Qd R 26; [2007] QSC 139, cited
Batistatos v Roads and Transport Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, cited
Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485, cited
Cooper v Hopgood & Ganim [1999] 2 Qd R 113; [1998] QCA 114, applied
Fitzpatrick v Batger & Co Ltd [1967] 1 WLR 706, cited
Kanyilmaz v Nominal Defendant (Qld) [2000] QSC 180, distinguished
Menegazzo v Pricewaterhousecoopers…

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AGLC
Ure v Robertson [2016] QSC 210
Case
[2016] QSC 210
Decision Date

CaseChat Overview and Summary

In the matter of Ure v Robertson, the plaintiff filed a claim in March 2007, which the defendant responded to by filing a counterclaim in September 2010. The case revolves around an alleged oral agreement made almost 10 years prior and seeks to expand the dispute to include prior business dealings between the parties. The proceedings have been marked by long periods of inactivity, with the more recent delays being attributed to the plaintiff and the defendants by counterclaim. The defendant applied to dismiss the claim for lack of prosecution, while the plaintiff sought leave to proceed. The court was required to consider whether the claim and counterclaim should be dismissed due to the lack of prosecution and whether a state court could make an order relieving a party from an undertaking given to the Federal Court.

The court concluded that both the claim and the counterclaim should be dismissed for want of prosecution. The court found that the long delays had likely degraded the prospects of a fair hearing of the evidence, and that neither party had a significantly better chance of success. The court also considered the impecuniosity of both parties, with the defendant being an 81-year-old retiree with limited income and assets. The court noted that striking out or dismissing the proceeding for want of prosecution would likely quell the controversy between the parties. Regarding the defendant's application to be released from undertakings given to the Federal Court, the court refused the application.

The orders of the court were that the parties would be heard on the appropriate form of order to give effect to the court's reasons and that the defendant's application for an order releasing the undertaking given to the Federal Court was refused.

Orders

Orders of the court

The order of the court is that:

1. The parties will be heard on the appropriate form of order to give effect to paragraphs [1] to [95] of these reasons.

2. The defendant’s application for an order releasing the undertaking given to the Federal Court is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is not possible to form a view that either party has prospects of success that are significantly better than the other. The defendant submits that the plaintiff’s prospects of success on the claim as presently framed are poor because of the uncommercial amount claimed for the services. But that is not necessarily an obvious strength in the defendant’s case and, in any event, the plaintiff and Mr Ure’s recent affidavits and solicitors’ correspondence since December 2015 meet the argument, at least in part, on the footing that the consideration for the sum of $800,000 included an agreement to settle the outstanding balances on the accounts as between the defendant and the plaintiff and Mr Ure. The defendant rightly enough submits that this is a significant departure from the case as it has been pleaded for almost 10 years. On the other hand, it is not greatly inconsistent with the defendant’s counterclaim that there is accounting to be done for at least the Summerhill Developments Pty Ltd part of their prior business dealings.Effect of delay on evidence The plaintiff and Mr Ure submit that this is not a case where the delay to date has caused a loss of the critical evidence as the plaintiff, Mr Ure and the defendant have given versions of the conversations relied upon in the statement of claim as the basis of the alleged contract for payment of $800,000. Whatever else is true, it can be confidently said that the affidavits on either side about the prior business dealings and the conversations as to any agreement and the accounting relationships and positions as between the parties are far from fulsome. Second, these affidavits were prepared in July and August of 2016, almost 10 years after the last of the relevant sequence of events which then extend further backward in time – back to the 1970s on Mr Ure’s affidavit. Accordingly, in my view, there is every reason to think that the prospect of a fair hearing of the evidence of what actually passed between the parties in their oral communications relevant to their rights and liabilities inter se will have degraded from what may have been the position in 2008 when the proceeding on the plaintiff’s claim first came on for trial. On the evidence, this is not a case that the court can say will be substantially proved on either side by documentary evidence. The plaintiff and defendants by counterclaim did not purport to prove that they still have possession of all relevant documents so as to be able to prove the extent of their dealings inter se. There is no document that evidences the contract alleged in the statement of claim. There is no document that evidences the varied terms of that contract and the consideration for it as stated in the affidavits of the plaintiff and Mr Ure.Impecuniosity Both parties rely on impecuniosity in support of their positions. The defendant submits that she is unable to pay or to borrow the funds to defend the proceeding. She is an 81 year old retiree with limited income other than a pension. Her home at Byron Bay is her major asset, but she is unable to borrow against it to pay her costs because she has undertaken to pay more than $380,000 to top up the agreed reductions to date to the amount paid into her solicitor’s account in 2008 to abide the plaintiff’s claim. She is unable to borrow more.

Decision

Reasons for decision

In any event, in the light of modern developments of the principles affecting abuse of process,[23] it could not be assumed that any part of the claim or counterclaim would be successfully re-started if an order to strike out the proceeding on both the claim and counterclaim were made in the inherent power of the court. Striking out or dismissing the proceeding for want of prosecution would be likely to quell the controversy between the parties, subject to dealing with the defendant’s undertakings mentioned later on.[23] Batistatos v Roads and Transport Authority of New South Wales (2006) 226 CLR 256, 267-270 [16]-[26].Conclusion as to dismissal or leave to proceed Having regard to the normative factors articulated in Tyler and Cooper, and the particular relevant factors discussed above, in my view both the claim and the counterclaim in the present proceeding should be dismissed for want of prosecution. Correspondingly, none of the parties should remain free to take a further step in the proceeding, beyond the resolution of the present applications. Although neither party applied for an order that the counterclaim should be dismissed, the defendant offered an undertaking to apply for dismissal of the counterclaim if the claim were dismissed. In my view, that is not enough. There is no proper basis on which to order that the claim be dismissed for want of prosecution but leaving alive the possible prosecution of the counterclaim. I will hear the parties on the appropriate form of order, having regard to these reasons.Defendant’s undertakings The remaining aspect of the application is that the defendant seeks orders releasing her from undertakings. One undertaking was given to the Federal Court as part of the terms of the settlement of the plaintiff’s appeal from the order of the Federal Circuit Court annulling the defendant’s bankruptcy. The undertaking was as follows:1. Patricia June Robertson hereby undertakes that she will not encumber, dispose of, transfer or otherwise deal with the property situated at 4/2 Alcorn street, Suffolk Park in the State of New South Wales more particularly described as lot 5 DP 270196, Parish Byron County of Rous (the Property), whether in law or in equity without first providing 14 days written notice of any such intention to encumber, dispose of, transfer or otherwise deal with the Property to Lynn Kathleen Ure via her solicitors Affleck Lawton lawyers at 4/105 George Street, Beenleigh QLD 4207 (attention Bruce Affleck) and by e-mail to baffleck@afflecklawton.com.au, or to such other person and address of which Patricia June Robertson might be notified in writing by the said Lynn Kathleen Ure.2. Notwithstanding the terms of the undertaking in paragraph 1 Patricia June Robertson shall not encumber, dispose of, transfer or otherwise deal with the Property, whether at law or in equity (dealing) unless the dealing be on the basis that any funds to be received by Patricia June Robertson as a result of such dealing be first applied to the balance held in the Trust Account of McCormick Lawyers (Trust account amount) pursuant to the Authority, Direction and Undertaking given by Patricia June Robertson dated 8 February 2007 (the Undertaking) such that no sum be permitted to be available for the benefit of Patricia June Robertson, her successors or assigns or any other person or entity at her (or their) direction until such time as the Trust account amount reaches a total of $800,000 (the Security amount) and any moneys over and above the Security amount be available to be distributed to Patricia June Robertson, her successors or assigns.

Ratio Decidendi

Legal Principle Established

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