Van Vuuren v Van Niekerk - [2007] QDC 148

[2007] QDC 148

DISTRICT COURT

JUDGE RACKEMANN

Appeal No 1956 of 2003

FRANZWA VAN VUUREN	Plaintiff
and
STEVEN VAN NIEKERK	Defendant

BRISBANE

..DATE 25/06/2007

JUDGMENT

HIS HONOUR: The plaintiff commenced proceedings on the 17th of June 2003 claiming $176,000 together with interest, being monies alleged owing by the defendant to the plaintiff pursuant to an agreement.

The subject application is for leave to proceed pursuant to Rule 389 subsection 2 of the UCPR. The defendant resists that and submits that the action ought to be struck out for want of prosecution. The action was commenced promptly and progressed with reasonable expedition in the early stages before becoming dormant.

The agreement upon which the claimant sues is one alleged to be recorded in writing on the 28th of April 2003, consequent upon a meeting between the plaintiff, the defendant and another. During that meeting, the plaintiff had maintained that the defendant and the other person were liable to him with respect to a failed investment made in late 2002. It is alleged that the defendant agreed to pay the plaintiff the sum of $176,000 together with the interest at the rate of 4.75 per cent. Payment was not made despite demand on the 27th of May 2003 and the 5th of June 2003.

The defendant filed a Notice of Intention to Defend and Defence on the 18th of July 2003 in which he admitted to attending the meeting of the 28th of April 2003. He also admitted that the plaintiff and his wife had expressed the view that the defendant and the other person were liable to the defendant for his lost investment and admitted signing the document of the 28th of April 2003. That document, on its face, purports to be an acknowledgement by the defendant that he owed the plaintiff the sum of $176,000 together with an undertaking to pay that amount together with interest at a rate of 4.75 per cent.

The defendant however denies that he was, in truth, liable to the plaintiff with respect to the failed investment. He asserts that the hand-written instrument was executed under coercion, was not in resolution of the plaintiff's claim and did not comply with the provisions of the Property Law Act with respect to Deeds.

On the 18th of August 2003, the plaintiff filed an application returnable on the 26th August 2003, seeking further and better particulars of the defence. The Court made orders in accordance with the application requiring further and better particulars within 14 days. The defendant did not comply with those orders.

On the 19th of September 2003, the plaintiff filed an application seeking that the defence be struck out and judgment entered in his favour or, in the alternative, further orders with respect to the provision of further and better particulars and the carrying out of disclosure. That application was originally returnable on the 1st of October 2003 and was adjourned to the 9th of October 2003. The defendant filed further and better particulars on…

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.

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Details

Case: [2007] QDC 148
Decision Date: 25 June 2007

CaseChat Overview and Summary

Franzwa Van Vuuren commenced proceedings against Steven Van Niekerk claiming $176,000 together with interest, being monies alleged owing by the defendant to the plaintiff pursuant to an agreement. The defendant resisted the application for leave to proceed and submitted that the action ought to be struck out for want of prosecution. The defendant argued that the plaintiff had failed to provide an adequate explanation for the delay in prosecuting the action. The plaintiff argued that he had experienced financial hardship caused by the defendant's failure to pay the sum claimed. The court found that while the explanation for the delay was sparse and lacking in detail, it was genuine. The court also found that the delay had not substantially affected the prospects of a fair trial and that the plaintiff ought to be granted leave to proceed with the action. The court noted that the plaintiff had started to progress the matter prior to the need for leave being drawn to his attention and that the action could be ready for trial in the not too distant future if leave were granted. The court listed the matter for directions on the 13th of July.

The legal issues the court was required to decide were whether the plaintiff had provided a satisfactory explanation for the delay in prosecuting the action and whether the delay had substantially affected the prospects of a fair trial. The court found that the plaintiff had provided a genuine explanation for the delay, albeit sparse and lacking in detail, and that the delay had not substantially affected the prospects of a fair trial. The court also found that the plaintiff ought to be granted leave to proceed with the action and that it may be appropriate for the court to give directions to set a timetable for the action.

In summary, the court granted the plaintiff's application for leave to proceed with the action, finding that the plaintiff had provided a genuine explanation for the delay and that the delay had not substantially affected the prospects of a fair trial. The court listed the matter for directions on the 13th of July.

Orders