SUPREME COURT OF QUEENSLAND
CITATION:
Wine Connection Pty Ltd as Trustee v Pitcliff Pty Ltd [2013] QSC 56
PARTIES:
WINE CONNECTION PTY LTD (ACN 072 924 568) AS TRUSTEE FOR EASTMAN FAMILY TRUST
(Applicant)
v
PITCLIFF PTY LTD (ACN 087 643 338)
(Respondent)FILE NO/S:
10/2009
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Cairns
DELIVERED ON:
11 March 2013
DELIVERED AT:
Supreme Court, Cairns
HEARING DATE:
16 January 2013
JUDGE:
Henry J
ORDER:
1.The applicant’s application is dismissed;
2. Pursuant to rule 280 of the Uniform Civil Procedure Rules 1999 (Qld), the proceeding is dismissed for want of prosecution; and
3.I will hear the parties as to costs.
CATCHWORDS:
PRACTICE – ACCOUNTS – DELAY – LEAVE TO PROCEED – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where applicant obtained a consent order for an account of its former partnership with respondent – where respondent filed a statement and account – where applicant did not file a statement challenging the respondent’s statement and account – where applicant failed to take a step in the proceeding for over two years – meaning of “proceeding” in r 389 - where applicant seeks leave to proceed – where respondent applies to dismiss the proceeding for want of prosecution
Uniform Civil Procedure Rules 1999 (Qld) rr 5, 280, 389, 528, 532, 533, 535, 536, 539
Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2012] QCA 272
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cooper v Hopgood & Ganim [1999] 2 QdR 113
Cousins v Mount Isa Mines limited [2006] 2 QdR 343
Groeneveld Australia Pty Ltd & Ors v Wouter Nolten & Ors [2011] VSC 512
Merritt v Hughes [2010] QSC 100
COUNSEL:
Jonsson MA for the applicant
Moody S for the respondent and cross-applicantSOLICITORS:
Devenish Law for the applicant
Slater & Gordon Lawyers for the respondent and cross-applicant
The applicant obtained a consent order for the taking of an account in respect of its former partnership with the respondent. The respondent filed a statement and account indicating no money was payable to the applicant.
The applicant failed to comply with the 28 day deadline for filing a statement challenging the accuracy of the respondent’s filed material. Moreover, the applicant thereafter failed to take a step for over two years.
Notwithstanding that inordinate period of inaction in the face of materials indicating it is owed nothing, the applicant now seeks leave to proceed. The respondent cross-applies to dismiss the proceeding for want of prosecution.
Background
The applicant and respondent were partners in a partnership at will, trading as EJP Beverages.
The partnership ended by agreement on 31 March 2007.
On 13 January 2009, over four years ago, the applicant filed an originating application seeking an order:
“That all necessary accounts be taken and enquiries held of the partnership dealings and transactions between the applicant and the…
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- Case
- [2013] QSC 56
- Decision Date
CaseChat Overview and Summary
The court held that the term "proceeding" in rule 389 includes the applicant’s failure to challenge the respondent’s statement and account. The applicant’s inaction constituted a significant delay in the proceedings, warranting the dismissal of the proceeding for want of prosecution. The court further noted that the applicant’s application for leave to proceed was not justified, as it did not provide a satisfactory explanation for the delay. The court dismissed the application for leave to proceed and, pursuant to rule 280 of the Uniform Civil Procedure Rules 1999 (Qld), dismissed the proceeding for want of prosecution.
The court ordered that the applicant’s application for leave to proceed is dismissed, and the proceeding is dismissed for want of prosecution. The court also directed that the parties be heard regarding costs. This decision underscores the importance of timely and diligent action in legal proceedings, and the consequences of inaction can result in the dismissal of the case.
Orders
Orders of the court
1.The applicant’s application is dismissed;
2. Pursuant to rule 280 of the Uniform Civil Procedure Rules 1999 (Qld), the proceeding is dismissed for want of prosecution; and
3.I will hear the parties as to costs.
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
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