Wine Connection Pty Ltd as Trustee v Pitcliff Pty Ltd

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

Puppinato v D & D Machinery Pty Ltd [2010] QSC 47

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

COUNSEL:

Jonsson MA for the applicant
Moody S for the respondent and cross-applicant

SOLICITORS:

Devenish Law for the applicant
Slater & Gordon Lawyers for the respondent and cross-applicant

1. 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.

1. 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.

1. 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

1. The applicant and respondent were partners in a partnership at will, trading as EJP Beverages.

1. The partnership ended by agreement on 31 March 2007.

1. 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…