Williams v Turner and Turner - [2010] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Turner and Turner [2010] QDC 39

PARTIES:

Colin John Williams and Gail Christyine Williams as administrators of the estate of John Lefric Williams
(defendant/applicant)

V

Noel Henry Turner And Helen Cynthia Turner
(plaintiffs/respondents)

FILE NO/S:

11/1992 and D24/2009

DIVISION:

Civil jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED EXTEMPORE ON:

17 February 2010

DELIVERED AT:

District Court at Gympie

HEARING DATE:

17 February 2010

JUDGE:

J.M. Robertson DCJ

ORDER:

The application in the Court file D24/09 be consolidated as an application pending in the file Plaint number 11 of 1992.

Proceedings instituted by Plaint number 11 of 1992, are dismissed.

Plaintiffs pay the defendant's costs of and incidental to the action and the application to be assessed on the standard basis or as agreed.

CATCHWORDS:

PROCEDURE – application to strike out for want of prosecution; where action commenced in 1992 and no steps taken since completion of discovery in that year; where plaintiff provided no good reason for long delay; where original defendant had deceased and his administrators substituted as defendant;

CONTRACT – where contract between the deceased and the plaintiffs was subject to certain conditions; where contract rendered void by operation of law; where plaintiffs therefore had little prospects of success on claim for specific performance

Land Sales Act 1984 (Qld)

Supreme Court of Queensland Act 1991 (Qld)

Althaus v Australian Meat Holdings Proprietary Limited [2009] QSC 5

Quinlan v Rothwell [2001] QCA 176

re Rosemac Pty Ltd's Caveat [1994] 1 QSC 137

Tyler v Custom Credit Corporation Limited and others [2000] QCA 178

Williams v Turner [2008] QSC 327

COUNSEL:

R. Morgan for the defendant/applicant
N. Turner and H. Turner in person

SOLICITORS:

Jeffery Cuddihy & Joyce Solicitors for the defendant

HIS HONOUR: On the 2nd of November 2009, the defendants filed an application in which they sought to be substituted as defendants in an action commenced by the plaintiffs, Mr and Mrs Turner in the District Court Gympie, in 1992.

The defendants are the administrators of the estate of the original defendant, Mr John Lefric Williams, who died on the 7th of August 2003. The application also sought orders that the claim be struck out for want of prosecution. The original claim was for specific performance and/or damages in relation to a contract between the deceased and Mr and Mrs Turner, dated the 14th of July 1989.

The application came on for hearing before his Honour Judge Tutt in this Court on the 1st of December 2009, and his Honour made an order substituting the defendants as defendant in the original claim and adjourned the strike out application until this sittings. Mr and Mrs Turner were self-represented before his Honour and still are.

His Honour also made certain directions. In a technical sense, the plaintiffs have complied with those directions, but the material filed does not really address the issues raised in the strike out application.

The application, which is described in the Court file, D24/09 as an…

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.

Continue reading Williams v Turner and Turner

Details

AGLC: Williams v Turner and Turner [2010] QDC 39
Case: [2010] QDC 39
Decision Date: 17 February 2010

CaseChat Overview and Summary

In the Federal Court of Australia, Williams brought an action against Turner and Turner, seeking specific performance of a contract, which was commenced in 1992. Since the completion of discovery in that year, no steps have been taken in the matter. The defendant, Turner, has since passed away, and his administrators have been substituted as the defendant. Williams made an application to strike out the proceedings for want of prosecution, as there was no justification provided by Williams for the significant delay in pursuing the action. The court was required to determine whether the delay was unreasonable and whether the application should be granted.

The court examined the circumstances of the case, including the length of the delay and the reasons provided by the plaintiff for the delay. The court noted that the contract between Turner and Williams was subject to certain conditions, and the contract was rendered void by operation of law. The court found that Williams had little prospect of success on the claim for specific performance due to these circumstances. The court held that the delay was unreasonable and that there was no good reason provided by Williams for the delay. Consequently, the court decided to grant the application to strike out the proceedings.

The court ordered the application in the Court file D24/09 to be consolidated as an application pending in the file Plaint number 11 of 1992. The proceedings instituted by Plaint number 11 of 1992 were dismissed. The plaintiffs were ordered to pay the defendant's costs of and incidental to the action and the application, to be assessed on the standard basis or as agreed. The court's decision brought the matter to a conclusion, and the plaintiffs were left to bear the costs of the proceedings.

Orders

Orders of the court

The application in the Court file D24/09 be consolidated as an application pending in the file Plaint number 11 of 1992.

Proceedings instituted by Plaint number 11 of 1992, are dismissed.

Plaintiffs pay the defendant's costs of and incidental to the action and the application to be assessed on the standard basis or as agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Williams v Turner and Turner [2010] QDC 39
PARTIES:	Colin John Williams and Gail Christyine Williams as administrators of the estate of John Lefric Williams (defendant/applicant) V Noel Henry Turner And Helen Cynthia Turner (plaintiffs/respondents)
FILE NO/S:	11/1992 and D24/2009
DIVISION:	Civil jurisdiction
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Gympie
DELIVERED EXTEMPORE ON:	17 February 2010
DELIVERED AT:	District Court at Gympie
HEARING DATE:	17 February 2010
JUDGE:	J.M. Robertson DCJ
ORDER:	The application in the Court file D24/09 be consolidated as an application pending in the file Plaint number 11 of 1992. Proceedings instituted by Plaint number 11 of 1992, are dismissed. Plaintiffs pay the defendant's costs of and incidental to the action and the application to be assessed on the standard basis or as agreed.
CATCHWORDS:	PROCEDURE – application to strike out for want of prosecution; where action commenced in 1992 and no steps taken since completion of discovery in that year; where plaintiff provided no good reason for long delay; where original defendant had deceased and his administrators substituted as defendant; CONTRACT – where contract between the deceased and the plaintiffs was subject to certain conditions; where contract rendered void by operation of law; where plaintiffs therefore had little prospects of success on claim for specific performance Land Sales Act 1984 (Qld) Supreme Court of Queensland Act 1991 (Qld) Althaus v Australian Meat Holdings Proprietary Limited [2009] QSC 5 Quinlan v Rothwell [2001] QCA 176 re Rosemac Pty Ltd's Caveat [1994] 1 QSC 137 Tyler v Custom Credit Corporation Limited and others [2000] QCA 178 Williams v Turner [2008] QSC 327
COUNSEL:	R. Morgan for the defendant/applicant N. Turner and H. Turner in person
SOLICITORS:	Jeffery Cuddihy & Joyce Solicitors for the defendant