Kingswood Press Pty Ltd v Connor
[1996] QDC 38
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- Unreported Judgment
- Kingswood Press Pty Ltd v Connor[1996] QDC 38
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Kingswood Press Pty Ltd v Connor[1996] QDC 38
Kingswood Press Pty Ltd v Connor[1996] QDC 38
DISTRICT COURT | No 5491 of 1989 |
CIVIL JURISDICTION
JUDGE BOULTON
KINGSWOOD PRESS PTY LTD | Plaintiff |
and
BARRY EDWARD CONNOR | First Defendant |
and
PENELOPE JANE CONNOR | Second Defendant |
BRISBANE
DATE 26/03/96
JUDGMENT
HIS HONOUR: Gentlemen, this is a matter of Kingswood Press Pty Ltd and Connor and another. This matter came on in chambers last week and I needed a few days to read the material more carefully. I promised to give some brief oral reasons and I will now do that.
The defendants make application by summons dated 19 March 1996 to strike out the plaintiff's action. Over three years passed without the plaintiff taking a step in the action. The plaintiff applies for leave to amend its proceedings to include certain mesne profits not referred to in the original pleadings and also seeks leave to proceed pursuant to rule 377 of the District Courts Rules.
The defendants were tenants of the plaintiff. By writ issued 2 June 1989 the plaintiff claimed recovery of possession, arrears of rent and mesne profits of $2184.75 per month. The defendants remained in possession until about October 1994. They had delivered an amended defence and counterclaim on 10 October 1989. A signed certificate of readiness was filed on 2 July 1992.
A somewhat unusual feature of the case is that the defendants withheld rent from mid-1990 until 1992, “To cover the counterclaim and some of the costs...” This was somewhat charitably described by the defendants' counsel as “equitable self help”.
The delay of slightly more than three years was occasioned by the plaintiff's solicitors failing to enter the matter for trial. Mr Boge, a solicitor, deposes to the fact that the solicitor having the carriage of the action left the firm and the failure to enter the action for trial was an oversight.
The defendants having recouped by the abovementioned strategy the fruits of the litigation were not anxious to pursue the matter further. The male defendant deposes, “It seemed to me around that time, that is May to June 1990, that the plaintiff did not intend to proceed further.”
Considering that the certificate of readiness was filed in July 1992 and that the defendants proceeded subsequently to retain two-years' rent, the hope that the action had gone away, would seem to have been a rather tenuous one.
Perhaps the most serious factor now confronting the defendants is the loss of documents. In or about September 1994 they moved from the plaintiff's premises to new premises. The male defendant deposes to the fact that 18 months to two years ago, that is March 1994 to September 1994, they received a box of documents relating to this matter from the solicitor, Mr Alexander. This box was removed to the new premises. The male defendant has searched and returned the files found to Mr Alexander. Mr Alexander says that they represent less than half of the relevant files. The files lost are not identified and no attempt has been made, it would seem, to reconstitute the files from other sources or to consult earlier affidavits of discovery to evaluate the significance of the loss. No explanation is given as to how the loss or destruction may have occurred, if it occurred, while the documents were with the defendants themselves. The affidavit of Mr Alexander is suggestive of the fact that the loss may have arisen in his own office prior to the return of the documents to the client in or about September 1994.
When the documents were returned by Mr Alexander the action was still on foot. Less than three years had passed from the signature of the certificate of readiness.
It strikes me as quite imprudent for documents relevant to the action to be returned by the solicitor to the client except on strict instructions as to their safe custody. This is so even if equivocal noises were being made by the plaintiff as to the future of the action. The loss of documents in the present case cannot, in my view, be seen as a clear result of the plaintiff's delay. Mr Alexander's affidavit would seem to suggest that a partnership dispute between himself and his former partners may well have been a more likely cause.
An ancillary question arises in these proceedings as to whether the steps taken by the plaintiff after the lapse of the three years were nullities or mere irregularities. It is not necessary for me to determine this question as I take the view that the plaintiff should succeed in any event. On its face the full Court decision in Perez v. Transfield Queensland Pty Ltd [1989] QdR 444, would support the view that they were nullities. If that was so, then nothing turns on the point.
The defendants have been somewhat slow to lodge their striking out application. Four-and-a-half months went by before the application was filed in March of 1996.
I note that the plaintiff's claim for mesne profits is not statute barred.
The defendants have not satisfied me that the action should be struck out. The relevant principles on a striking out application are set out in the Full Court decision of Dempsey v. Dorber [1990] 1 QdR 418 in the judgment of His Honour Mr Justice Connolly at page 422. Really, in my view, the application for striking out fails by quite a significant margin. It also seems to be appropriate in the light of the matters to which I have already referred that the - that plaintiffs should be given their leave to proceed and should be allowed to amend to include mesne profits that may have become relevant since the initial pleadings in the matter. I have already, on the submissions of both counsel, set aside the trial dates in the matter.
Gentlemen, what I propose to do from here is to dismiss the striking out application to give the plaintiffs leave, as I have indicated, and in the absence of any submissions to the contrary order that the plaintiffs have the costs of both summons. Because of the fact that the matter is almost ready for trial, it is a fairly common practice of mine to direct that any taxation of costs await the determination of the matter, but I will hear you on any of those issues if you are so minded.
...
HIS HONOUR: I order that the certificate of readiness be set aside.
...
HIS HONOUR: I nonetheless propose to direct that on the signing of a new certificate of readiness the matter be returned to its former position on the list. I order that the defendants summons for striking out be dismissed.
...
HIS HONOUR: I give the plaintiffs leave to amend their pleadings and also give the plaintiffs leave to proceed.
...
HIS HONOUR: As far as the application for striking out made by the defendants is concerned I order that the defendants' costs of and incidental to that application be the defendants' costs in the cause. As far as the plaintiff's application for leave to amend and for leave to proceed is concerned I order that the plaintiff pay the defendants' costs of and incidental to of that application to be taxed. I direct that taxation of those latter costs await the determination of the action or earlier order of the Court.