Randell v Charter[2003] QCA 180

SUPREME COURT OF QUEENSLAND 

[1] The applicant, Ian Randell, has applied by application filed 24 April 2003 for an order staying the execution of costs orders, made in proceedings in the District Court in which the applicant was a plaintiff, on 19 August and 4 December 2002.  On 23 December 2002, the applicant filed a Notice of Appeal against the judgment and orders of his Honour Judge Dodds of 4 December 2002, (which application ought to have been for leave to appeal pursuant to s 118 (3) of the District Court Act), by which Notice of Appeal the applicant sought orders setting aside the orders of 4 December 2002, and earlier orders of his Honour Judge Robertson made 19 August 2002.  He also sought interim orders in the appeal staying those two orders.  He did not apply by that Notice for any order staying or setting aside any of some earlier orders made by his Honour Judge Robertson on 16 July 2002, and has not appealed his Honour’s substantive orders of 19 August 2002.  The Notice of Appeal which has been filed is restricted in its grounds to complaints of error by his Honour Judge Dodds on 4 December 2002.

[2] The orders made on 16 July 2001 by his Honour Judge Robertson are set out in his Honour’s reasons for judgment of 19 August 2002.  Those earlier orders were for the provision by the plaintiff to the first defendant of further and better particulars.  His Honour ordered that day that there be no order as to costs of that application. 

[3] The orders made on 19 August 2002 were orders striking out the plaintiff’s claim against each of the first, second and third defendants for want of prosecution, orders that the plaintiff pay those defendants’ costs of and incidental to the application, the action, and the cost of defending a third party notice, such costs to be assessed on a standard basis; and orders that the first defendant have judgment against the plaintiff on its counterclaim against him for the sum of $34,791.00, together with interest thereon in the sum of $11,140.22. In satisfaction of that judgment entered in favour of the first defendant, his Honour ordered that the sum of $34,791.00 held by the second defendant be paid by it to the trust account of the solicitors for the first defendant.  Finally, the orders made by Dodds DCJ on 4 December 2002 were orders dismissing with costs the plaintiff’s application filed 21 October 2002 seeking to have the orders made by Robertson DCJ on 19 August 2002 set aside.

[4] The proceedings instituted by the plaintiff in the District Court arose out of an agreement dated 28 March 1999 whereby the plaintiff agreed to buy the motor vessel “Shotgun” from the first defendant for $120,000.00, subject to certain conditions, which included that the plaintiff obtain a satisfactory report from a qualified marine surveyor as to the condition of the vessel, a satisfactory sea trial of the vessel, and the plaintiff obtaining a satisfactory survey inspection of the vessel.  The reasons for judgment of Robertson DCJ of 19 August 2002 recorded that clause 6 of that agreement contained an acknowledgement by the plaintiff that there were no representations in connection with the sale made by the first defendant, that the plaintiff had completed the purchase after satisfactory personal investigation of the vessel, and that the first defendant had made no warranties or representations as to the seaworthiness or suitability, or otherwise, of the vessel.

[5] Those reasons record that although the contract was due for settlement on 11 April 1999, the plaintiff either waived his rights under those conditional clauses, or satisfied himself as to them, since the contract settled early on 1 April 1999 at the plaintiff’s instigation.  That same day, his solicitors advised that the second defendant (who was the broker for the first defendant) and the third defendant (who was the agent employed by the second defendant for the purpose of the sale) that the second defendant was not to release the settlement monies to the first defendant, pending the resolution of a dispute between the parties.  This led to that sum of $34,791.00 being retained in the trust account of the second defendant pending that resolution.  On 14 May 1999, the plaintiff issued the proceedings.

[6] Those proceedings resulted two years later in the orders made by Robertson DCJ on 16 July 2001, wherein his Honour ordered that the plaintiff provide the first defendant with further and better particulars of paragraph 3 of the plaintiff’s further and better particulars dated 16 August 1999, and requiring the plaintiff by that order to provide particulars of what rectification work was undertaken on the vessel; by whom; at what cost; whether it was paid for; and if so, when and to whom; and of documents evidencing that rectification and payment.  The plaintiff was also ordered to provide particulars of the loss of profits referred in his claim, particularising the quantum of such loss each week until the loss ceased; and detailing revenue lost and expenses paid.  The plaintiff was also ordered to provide further and better disclosure and inspection of documents relating to, inter alia, profits earned and expenses incurred in respect of the vessel.

[7] Those orders were consequent upon all the defendants seeking further and better particulars of the plaint.  The second and third defendants sought those on 19 May 1999, and on 7 June 1999 those defendants filed an application for orders for delivery of particulars.  Orders by consent were made on 12 June 1999 for delivery of certain particulars within seven days, and those were delivered on 12 August 1999.  On 8 May 2000, the plaintiff and all defendants attended for voluntary mediation before Richard Douglas SC, and at the conclusion of that mediation it was adjourned to October 2000 with the mediator’s directions requiring the plaintiff to provide further and better particulars by 7 July 2000.  Those were particulars of the rectification work and of the loss of profits.

[8] On 14 September 2000, those particulars not having been provided, the second and third defendants sent a letter to the plaintiff’s solicitors informing the latter that those defendants would notify the mediator that the resumption of the mediation scheduled for October 2000 could not take place, given the non-provision of those particulars.  On 25 September 2000 the second and third defendants, through their solicitors, served notice on the mediator, and the solicitors for the plaintiff and first defendant, that the second and third defendants were dispensing with further mediation by reason of that non-compliance with those directions.

[9] On 23 May 2001 the first defendant became active in a search for better particulars.  These were first requested by letter from the plaintiff pursuant to UCPR 444.  On 16 July 2001, Robertson DCJ made the orders described.

[10]  On 22 August 2001 the plaintiff’s solicitors promised to supply those, and on 6 September 2001 sought more time in which to do so.  On 14 September 2001 the particulars as to the rectification work were supplied, but not those of the pleaded loss of profits.  These have never been supplied, and the material before the court on this application does not show why these could not be.

[11]  No material has been filed by the applicant in this application which would support any suggestion that the order for particulars has worked any injustice for the plaintiff, or that it was made on any wrong principle, or error of law, or any mistaken basis of fact. It was, of course, an interlocutory order.  If the plaintiff’s present applications to this court are to be construed as including an application staying that order for particulars, he has not demonstrated any arguable grounds on which he could succeed on any application to set it aside, and nor has he provided any material even suggesting that it is onerous for him to provide those particulars. 

[12]  In the proceedings heard by Dodds DCJ, the applicant filed an affidavit on 20 November 2002 in which he swore that he was not aware of the order made 16 July 2001.  His Honour did not accept that claim.  The applicant’s Notice of Appeal contends that Dodds DCJ erred in finding that the applicant was aware of that order, but the applicant has not filed any affidavit material in this application swearing to any facts which would provide a basis on which to challenge the dismissal of that assertion by Dodds DCJ, or his Honour’s finding that the plaintiff was well aware of the order but chose to ignore it.  Nothing in the applicant’s written and unsworn material gives any grounds for challenging that finding.  His statements from the bar table when representing himself at the hearing of these applications for stay orders implied he did know of it, because he said he had supplied the information to his solicitors, and did not know what they had done. The affidavit evidence read in the District Court proceedings, and described in this judgment, contradicts these unsworn submissions. The reasons for judgment of Dodds DCJ include (in paragraph [12]) the observation that at the hearing on 16 July 2001 the plaintiff was represented by his solicitors, and an affidavit by that solicitor filed by leave on 16 July 2001 “leaves no doubt that the plaintiff was aware of the nature of the application and consented to the order for provision of the particulars”.[1]

[13]  The applicant has accordingly demonstrated no grounds for staying that order for the provision of particulars and neither his sworn nor unsworn material filed in this application provides any explanation for his delay in providing those particulars.  If he is applying for a stay of that order, that application is dismissed.

[14]  With respect to the application to stay the order for costs made by Robertson DCJ as part of his orders of 19 August 2002, and assuming in the applicant’s favour that he should be treated as having filed an application for leave to appeal both the substantive and costs orders made that day, part of the relevant history of the litigation leading to the orders of Robertson DCJ striking out the plaintiff’s claims against all three defendants for want of prosecution has already been given.  Further relevant parts of that history are that on 17 June 1999 the first defendant filed his entry of appearance, defence and counterclaim, and on 23 June 1999 the second and third defendants filed their entry of appearance and defence to the plaintiff’s claim.  On 29 June 1999 those second and third defendants served notice requiring discovery by the plaintiff, and on 6 August 1999 delivered their list of documents to the plaintiff.  On 27 October 1999 they received the plaintiff’s list, and on 25 October 1999 the second and third defendants had inspection.  In November 1999 the solicitors for the second and third defendants requested copies of certain documents inspected, and on 16 December 1999 received those from the plaintiff’s solicitors.

[15]  Things slowed considerably after the mediation of 8 May 2000.  The plaintiff’s non-provision of the directed further and better particulars resulted in the mediation never resuming, and as at 19 August 2002, as remarked by Robertson DCJ,

“It follows that in relation to the second and third defendants, the last step taken by the plaintiff in the action was on 28 September 1999 when the plaintiff’s solicitors signed off the list of documents on his behalf.”

[16]  Thereafter the active steps in the litigation consisted of attempts by the solicitors for the first defendant to obtain further and better particulars, and attempts by the plaintiff’s solicitors to obtain instructions from him regarding those and security for their own costs.  After the particulars of the rectification work had been supplied in September 2001, the plaintiff’s solicitors attempted to obtain from him the instructions that would enable them to comply on his behalf with the order requiring particulars of loss of profits.  Eventually on 20 June 2002, the solicitors for the plaintiff told the solicitors for the first defendant that they had no instructions; and on 24 July 2002 the plaintiff’s solicitors filed an application for leave to withdraw as solicitors on the record.

[17]  Robertson DCJ was satisfied from reading the affidavit filed by those solicitors, in support of that application, that the plaintiff was ignoring repeated requests from his own solicitors for instructions and for arrangements for their own security for costs.  On the evidence recited in his Honour’s reasons for judgment, those efforts were made from, and including, October 2001 up to and including 21 January 2002, when the plaintiff’s solicitors wrote to the plaintiff requesting the return of a signed mortgage and client agreement. The learned judge declared he was satisfied that the plaintiff had received the correspondence, which the judge considered the plaintiff was ignoring, because the plaintiff had actually replied to some of it.  The judge noted that on occasions those letters from the plaintiff’s solicitors were addressed to him at 2107 Pittwater Road, Church Point, New South Wales and, on occasions, to PO Box 463, Mooloolaba.

[18]  Robertson DCJ further found that he was satisfied that the application for orders striking out the plaintiff’s action and for consequent orders as to the disposal of the $34,791.00 had been served on the plaintiff. He found that it had been done by the solicitors for the second and third defendants by service upon the plaintiff’s solicitors on 2 August 2002, which had occurred before those solicitors were given leave on 12 August 2002 to withdraw.  He accepted the affidavit evidence of those solicitors that they had forwarded the documents served on them to the plaintiff.  His Honour also found he was satisfied that the same applications and supporting affidavits were served by the first defendant’s solicitors upon the plaintiff at the Pittwater Road address, and noted that a facsimile had been received from the plaintiff addressed to the first defendant’s solicitors on 18 August 2002.  His reasons for judgment quote that fax which reads:

“It has been brought to my attention over this weekend that you are acting for Charters in the matter I have going against him. 

I understand that you have the matter in the Maroochydore Court on 19 August 2002.

3. I will not be able to attend any Court hearing for at least the next eight weeks, and, since I have just heard of this matter, I do not have it in my hands yet the papers, I would ask that the matter be held over till at least 14 October 2002”.

[19]  As his Honour observed, that faxed communication does not say why the plaintiff could not appear, and the learned judge was satisfied that in the circumstances the plaintiff, who had been served the relevant material, had decided not to appear.  The judge noted that the plaintiff had not communicated at all with the court, nor instructed any solicitors to appear for him.

[20]  Robertson DCJ then considered the principles made relevant upon an application to strike out a proceeding, and established by the decisions of this court in Tyler v Custom Credit Corporation Limited [2000] QCA 178 and Cooper v Hopgood & Ganim [1999] 2 Qd R 113. His Honour considered each of the relevant matters by reference to Tyler’s case, and his reasons for judgment record that the events leading to the action had occurred three years earlier; the delay in the proceedings was caused entirely by the plaintiff; that delay had prejudiced the first defendant by reason of his being withheld from the sale proceeds; the plaintiff was apparently using the vessel he purchased for commercial purposes; and the plaintiff’s prospects of success in the litigation were not great.  His Honour also found that the plaintiff had provided no explanation for the disobedience of the directions made at the mediation on 8 May 2000, nor for the subsequent failure to comply with the second part of the orders made on 16 July 2001.  He also considered that the defendants were prejudiced in another way by the delay, namely that they now had only a remote prospect of making any meaningful inspection of the subject vessel.  In those circumstances, including that the plaintiff continued to fail to provide the ordered particulars and without explanation, the judge struck out the claim.  He expressly did so having regard to UCPR 280(4), which provides that a court may vary or set aside an order dismissing a proceeding for want of prosecution made in the absence of the plaintiff or applicant, on terms that the court considered appropriate, and without the need for an appeal.  He then made the order for costs which the applicant now seeks to have stayed. 

[21]  Regarding the substantive orders made by his Honour, the applicant’s material filed does not provide a basis for challenging the findings of Robertson DCJ. Treating the applicant as having filed a notice seeking leave to appeal those August 2001 orders, he has not shown a good arguable case on appeal regarding them, and while he be disadvantaged by execution of the costs order, the respondents will be equally disadvantaged by not having their costs paid[2].  The applicant has not filed any material providing any explanation for his delay by 19 August 2002 in giving the ordered particulars, and nor has he shown that he has supplied them now, or that he will comply with that order.  Accordingly his application for a stay of the costs order made on 19 August 2002 is dismissed.

[22]  The applicant’s most clearly made application is for a stay of the execution of the costs order made on 4 December 2002 by Dodds DCJ.  In those proceedings seeking to set aside the August 2002 orders of Robertson DCJ, the applicant read an affidavit in support of his application and swearing to the following matters.

[23]  First, because of changes of his address from the Pittwater Road address to his residence on the vessel the subject of the dispute, and accordingly to a new address at PO Box 463, Mooloolaba, and because the applicant had had someone collecting his mail, he had not received all of the correspondence which his solicitors had despatched to him.  He swore to having notified those solicitors in July 2001 of his new address at PO Box 463.  Second, he swore that he did not know that his solicitors had withdrawn from the proceedings until October 2002, when he received notice of an application from the defendants to have their costs taxed.  He swore to having been told by telephone by his wife of the application heard by Robertson DCJ on 19 August 2002, and having been unable to understand what she was saying.  This had led to his sending the facsimile quoted earlier on 18 August 2002 to the solicitors for the first defendant.

[24]  With respect to those sworn assertions, Dodds DCJ noted that the applicant did not contact his own solicitors in August 2002, despite his asserted belief that they were then acting for him.  His Honour declared that he was satisfied from perusal of copies of the correspondence forwarded to the plaintiff by his own solicitors that those solicitors thought that his address was at Pittwater Road until they received a letter from him dated 27 December 2001; and his Honour did not accept the plaintiff’s assertion that he had given notice of his change of address to his solicitors in July 2001. 

[25]  The learned judge remarked that the letters sent by the plaintiff’s solicitors to him between 10 October 2001 and November 2001 to the Pittswater Road address seeking instructions as to particulars of the economic loss, had not been returned unclaimed; and that a letter dated 13 December 2001 sent to the same address was replied to by the plaintiff’s letter of 27 December 2001.  It was that last letter that advised of the change of address to PO Box 463, Mooloolaba, but letters sent by the plaintiff’s solicitors dated 14 January 2002, 23 January 2002 and 21 February 2002 to that PO Box 463 address were also not replied to.  That latter correspondence had repeatedly sought security for the solicitors’ costs, and instructions on particulars.

[26]  Dodds DCJ noted that the plaintiff’s solicitors had finally sent a letter dated 23 June 2002 to the Pittswater Road address, giving the plaintiff notice that his solicitors would apply for leave to withdraw, and sending it to that address because correspondence sent to the PO Box was not acknowledged.  He noted the plaintiff’s sworn assertion that he did not get his solicitors’ letters of 23 January 2002, 21 February 2002 or 20 June 2002, none of which had been returned unclaimed, but considered that it strained credibility to accept that those had gone astray.  It seems that his Honour rejected that claim.

[27]  He likewise rejected, as described, the plaintiff’s claim that he had not known of the order made  16 July 2002.  The learned judge found that the applicant was aware of that order, but had consistently refused to provide the ordered particulars and had continued to ignore that order despite his own application to the court to set aside the orders made dismissing his claim.  After observing that Robertson DCJ had addressed the considerations made relevant by the judgment of this court in Cooper v Hopgood Ganim, Tyler v Custom Credit and Quinlan v Rothwell & Others [2001] QCA 176, Dodds DCJ dismissed the plaintiff’s application.

[28]  He declared that his reasons were:

• The plaintiff’s claim did not appear be strong
• The plaintiff was continuing to fail to provide particulars ordered on 16 July 2001
• The plaintiff had provided no credible explanation as to why these were not supplied
• The defendants had suffered the inevitable prejudice that flowed from the passage of time[3]
• The consideration mentioned by McPherson JA in Cooper v Hopgood Ganim (at Qd R 124) that:

“Ordinary members of the community are entitled to get on with their lives and plan their affairs without having to continue in front of litigation and its consequences hanging over them.  The psychological as well as the commercial effects of such a state of affairs ought not to be under-estimated.”

• The legislative recognition of the goals of the UCPR identified in cases as Cooper and Quinlan that civil litigation will proceed to the “just and expeditious resolution of the real issues – at a minimum of expense”.

His Honour dismissed the plaintiff’s application with costs. 

[29]  Some matters of fact supporting the findings of Dodds DCJ are identified in the written outline of arguments supplied by the respondent first defendant.  These are that the plaintiff’s affidavit of 21 October 2002, (presumably read before Dodds DCJ), swears that until 18 October 2002 he thought that his claim was being handled by mediation, but despite this claim his own affidavit filed 19 November 2002 says that he thought (that his claim was being handled by mediation) “as late as January 2002”; and these two claims appear inconsistent.  The respondent makes a further point that the plaintiff’s own solicitors, by their letter dated 14 January 2002, sent the plaintiff copies of all of their correspondence to him since their last conference with him, which correspondence included copies of the notice of the order made 16 July 2001.  The applicant’s affidavit did not swear to having not received that letter dated 14 January 2002.

[30]  The applicant has filed no sworn, or unsworn, material on this application to challenge the basis of any of those findings made by Dodds DCJ.  The court has still not heard that the applicant has, or will, provide the ordered particulars, and there is still no explanation for his delay in having done so as at 4 December 2002 or now.  His failure to provide any basis of fact on which to challenge the findings of Dodds DCJ means that there is no apparent merit in his appeal against his Honour’s dismissal of the application to set aside the orders of Robertson DCJ. No error of principle or fact is shown in his Honour’s reasons, and the position remains that the disadvantage the applicant suffers in having the order for costs enforced against him is matched by the disadvantage the respondents suffer in not having their costs.

[31]  The applicant relies in part upon correspondence received from the solicitors for the respondent first defendant, acknowledging receipt of his notice of appeal and informing the applicant that:

“Our clients will wait for the court’s determination of your appeal but hereby give you notice that they reserve their rights to proceed with enforcement of the orders made against you in the District Court, subject to the outcome of the appeal”.

I do not read that letter as containing any promise or undertaking not to enforce the costs orders, and indeed the contrary is expressed.  The letter merely states the position which applies in the absence of an order for a stay.  The applicant’s material implies that it is unfair for those solicitors to enforce the orders after writing that letter, but I do not agree.  In any event, the applicant has not described any conduct of his own in reliance on that correspondence or any change of position by him because of it.  Rather, his material filed in support of his application for a stay focuses upon the proposition that he has a case with very good prospects of success against the defendants for deceptive conduct, that being based upon representations by all three that the subject vessel was “in survey”, when the plaintiff can demonstrate that it certainly was not; and that those representations caused him “unspecified damages”.  What he has failed to grasp is that he has been ordered to specify those damages, and that the District Court will not set aside the order striking out his proceedings and give him leave to proceed (if it ever does) unless and until he provides those particulars, and reasons which the court accepts for not having done so before.

[32]  His application for a stay of the costs order of 4 December 2002 is dismissed.

[33]  Mr Randell submitted by affidavit filed 28 April 2003 that this Court should stay the enforcement of the order or the enforcement warrant, under one or other of UCPR 800, 895 or 907, on the grounds that:

(a) He had not been served with the warrant, as required by UCPR 906(3); and

(b) He has agreed by a document dated 3 January 2003 to transfer the property described in the enforcement warrant to his wife. 

[34]  He was given leave to file and read a further affidavit at the hearing showing that a transfer of the real property named in the warrant was asserted as not liable to duty, being in execution of orders made pursuant to the Family Law Act 1975. The first respondent submits this raises an issue of priority between the enforcement creditor and the transferee; and the limited material provided is not a basis for this Court staying execution of the costs orders made.

[35]  Service of the warrant(s) can doubtless be effected, if it has not already occurred and the applications he now makes by affidavit should be made to the Magistrates’ Court enforcing the order pursuant to UCPR 801(2). They should be supported by affidavit material

[36]  The order of the court is that the application filed 24 April 2003 is dismissed with costs.