Kent v Hunt Robinson Pty. Ltd.
[2001] QDC 199
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- Unreported Judgment
- Kent v Hunt Robinson Pty. Ltd.[2001] QDC 199
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Kent v Hunt Robinson Pty. Ltd.[2001] QDC 199
Kent v Hunt Robinson Pty. Ltd.[2001] QDC 199
DISTRICT COURT OF QUEENSLAND
CITATION: | Kent & Anor v. Hunt Robinson Pty Ltd & Ors [2001] QDC 199 | |
PARTIES: | MARK KENT AND JANE KENT (Plaintiffs) And HUNT ROBINSON PTY LTD ACN 010 953 027 (First Defendant) And SCOTT PINKSTONE (Third Defendant) And LESLIE WALTER DZUFER (Fourth Defendant) | |
FILE NO/S: | D119 of 2000 | |
DIVISION: | Applications | |
PROCEEDING: | Application by plaintiff for directions Application by third party to file and serve a third party notice | |
ORIGINATING COURT: | Maroochydore | |
DELIVERED ON: | 7th September 2001 | |
DELIVERED AT: | Maroochydore | |
HEARING DATE: | 3rd September 2001 | |
JUDGE: | Judge J.M. Robertson | |
ORDER: |
| |
CATCHWORDS: | PRACTICE – Summons for directions – Application by plaintiffs for directions – whether court should hear application notwithstanding failure to comply with UCPR PRACTICE – Joinder of parties – Application by third defendant to file and serve third party notice outside prescribed period – whether leave should be granted – relevant considerations Cases cited: Just GI Pty Ltd & Ors v. Pig Improvement Company Australia Pty Ltd [2000] QSC 163; Phonesivorabouth v. Tops Services Pty Ltd (1992) 106 FLR 471 AMP Fire & General Insurance Company Limited v. Dixon (1982) VR 833 Statutes considered: Uniform Civil Procedure Rules, Chapter 11 Part 8, rr 194, 448 | |
COUNSEL: | F. Dawson (for the Plaintiffs) N.V. Stubbins (for the Third Defendant) | |
SOLICITORS: | Butler, McDermott & Egan (for the Plaintiffs) Minter Ellison (for the Third Defendant) | |
- [1]There are two applications before the Court. The first in time is the plaintiff’s application filed 6th August 2001 for directions. The material in support of that application indicates that what the plaintiff seeks is an order that all expert reports be served on all parties by 24th September and that the matter be placed on the callover list and the request for trial date be dispensed with. A preliminary matter arose after I had reserved my judgment which I should mention now. The plaintiffs’ application is supported by an affidavit by her solicitor, Mr Greenhalgh, sworn 28th August 2001 and filed 30th August 2001. The application is one to which Part 8 of Chapter 11 Uniform Civil Procedure Rules applies, and there is no evidence before me of compliance with that part. The application is however only opposed by one party, the Third Defendant who was represented by Mr Stubbins of counsel. The remaining defendants (the claim against the second defendant has been discontinued) have all consented to the orders sought to dispense with the request for trial date and placing the matter on the callover list. Having regard to the totality of the correspondence exhibited by Mr Greenhalgh to his affidavit, I am satisfied that this is a suitable case in which to direct that the Court hear the application notwithstanding the applicant’s failure to comply with Part 8: UCPR r 448.
- [2]The third defendant’s application filed 30th August 2001 seeks leave of the Court to file and serve a third party notice against the Maroochy Shire Council pursuant to r 194 UCPR. The application for leave is opposed by the plaintiff.
- [3]The plaintiffs’ claim is for damages. They allege that the defendants were negligent in the design and construction of their home at Buderim which it is alleged is in a serious state of disrepair as a consequence of faulty footings and foundations. The first defendant prepared a geotechnical report; the fourth defendant built the house and the third defendant is an engineer who was engaged to design the engineering detail with respect to the home. The plaintiffs’ claim is pleaded alternatively against some of the defendants as breach of contract.
- [4]Mr Greenhalgh’s affidavit discloses the steps taken in the action and the dealings between the parties. The pleadings are closed, disclosure has been completed, and all of the defendants have had experts inspect the plaintiffs’ home and undertake tests and prepare reports. A sensible attempt by the plaintiff’s solicitors to attempt to have the experts confer and reach agreement was thwarted when the third defendant’s solicitors advised on 14th December 2000 that they had no instructions with respect to his expert attending a meeting. This was so, despite the agreement to this sensible course by the other defendants. It is also most relevant to note that prior to the filing of the claim on 20th April 2000, the defendants had been given access to the plaintiffs’ property to carry out inspections. In late 1999, the third defendant’s engineers had attended to inspect the property. Mr Greenhalgh’s affidavit discloses constant difficulties in obtaining copies of experts’ reports. He forwarded a request for trial date to the other solicitors on 2nd April 2001 in an attempt to expedite finalisation of the claim. Relevantly, the solicitors for the third defendant responded on 26th April 2001 advising inter alia:
“… we are not able to certify that the matter is in all respects ready for trial. We are still conducting some enquiries which we expect to be completed shortly.
- [5]No mention was then made of any plan to join the Council as a reason for delaying the finalisation of the plaintiffs’ claim. Importantly on 24th May 2000 after service of the claim on the third defendant and before a defence was filed, the third defendant’s solicitor, Mr Horsley, forwarded a facsimile letter to Mr Greenhalgh in which he advised inter alia:
“Whilst we have yet to receive our client’s final instructions, upon our understanding, our client’s position will be that he did not inspect the work during the course of construction. However, it seems that the work was inspected by representatives of the Maroochy Shire Council.
We anticipate that our client will maintain that it should have been apparent to the Council that the soil conditions were not as contemplated by Hunt Robinson Pty Ltd (the first defendant) and further that more substantial foundations would be required. In the circumstances, it seems to us that your client may have a valid claim against the Council.
Could you please advise if you intend to join the Council as a defendant to the litigation.”
- [6]Mr Greenhalgh never responded to that request as he was perfectly entitled. The relevance of that letter is that it indicates at a time when the third defendant could have joined the Council as a third party, it chose not to do so.
- [7]What was not known to the plaintiff and probably the other defendants, is that the third defendant waited until 21st November 2000 before writing to the Council to seek an indemnity. On 21st February 2001 solicitors appointed by the Council advised the third defendant’s solicitor in these terms:
“We refer to previous correspondence in this matter.
We have investigated the claim made by your client against Maroochy Shire Council. Based on those investigations, we do not consider that Council will be found liable to either your client or the plaintiff directly. It appears clear from the expert evidence provided that your client has failed to properly design the footings for the plaintiffs’ residence, and in any event, the soil report prepared by geo-technical engineers inaccurately classified the site.
We do not consider that a Court would accept that Council, during its inspections of the construction of the plaintiffs’ residence, could have somehow determined the site classification of the plaintiffs’ property when even geo-technical engineers who had carried out extensive soil testing could not. Nor, we suggest was it ever a duty owed by Council to confirm or otherwise re-examine the conclusions of the geo-technical engineer providing the soil report, or reconsider in detail your client’s footing design.
If you intend to pursue Council further in relation to this matter, we advise that we do not holding instructions to accept service of any proceedings.”
- [8]Notwithstanding the unequivocal terms of that letter the third defendant still took no steps to seek leave to join the Council in these proceedings. On the 15th March 2001, new solicitors appointed by the Council wrote to Minter Ellison advising of their interest. Minter Ellison seemed to have regarded this letter as an invitation to reactivate the request for an indemnity and wrote to the solicitors accordingly on 22nd March 2001. Further correspondence ensued, terminating in a letter dated 18th July 2001 again rejecting any responsibility on the part of the Council. The letter advised that any third party proceedings would be “vigorously defended”. Mr Horsley wrote on 20th August stating inter alia:
“We give you notice that we anticipate receiving instructions to bring the application seeking leave to join your client as a third party to the action within the next 14 days.”
- [9]The draft statement of claim annexed to the third party notice exhibited to Mr Horsley’s affidavit pleads a number of factual matters that were clearly within the knowledge of the third defendant at a time prior to the filing of a defence by him. The claim pleads (in paragraphs 13 and 14) that the Council owed a duty of care to the plaintiffs which it has breached.
- [10]It is common ground that as the proposed notice has not been filed within the period prescribed by r 194 UCPR, the leave of the Court is necessary if this is to occur. As was the case in Just GI Pty Ltd & Ors v. Pig Improvement Company Australia Pty Ltd [2000] QSC 163, there is no argument here that the case is one where a notice could be filed for one or more of the reasons set out in r 192 UCPR. The only issue is whether at this point leave should be given. In that case, McKenzie J stated the relevant considerations as follows:
“In Phonesivorabouth v. Tops Services Pty Ltd (1992) 106 FLR 471, Kearney J was concerned with a case where the plaintiff had to close a leased market stall because of non-compliance with fire regulations. The claim was based on breach of covenant of quiet enjoyment and the defendant wished to join the Northern Territory as third party on the basis it had given negligent advice about the fire safety requirements. The rationale for joining third parties was expressed in the following passage:
“The public policy sought to be advanced by allowing a third party to be joined in an action is the need to ensure finality in litigation and to avoid multiple proceedings with their associated extra costs. Further, by preventing the same questions being tried twice, the possibility of different decisions on the same issues being given by differently constituted courts is avoided, that possibility being a matter calculated to bring the administration of justice into disrepute.
The grant of leave … to file a third party notice out of time is discretionary. In general, there is a strong argument against granting such leave where the effect of doing so would be to embarrass or delay the plaintiff. Nevertheless, it is a matter of balancing the inconvenience to the plaintiffs of the inevitable delay which will be caused by a late joinder in this case, against the inconvenience to the defendant of not having the claims of the plaintiffs and its claim against the Northern Territory of Australia heard at the same time.”
For the applicant reliance was placed on AMP Fire & General Insurance Company Limited v. Dixon (1982) VR 833. That appears to be a case where a third party notice had issued and the court was concerned with the question of separate trials of the issues under it. In that sense it is different from the present case. Nevertheless, it is authority for the proposition that it is only in exceptional circumstances that the power to order separate trials of the plaintiffs’ claim against the defendant and the defendant’s claim against the third party should be exercised.”
- [11]I respectfully adopt His Honour’s observations. I am told that leave to appeal His Honour’s judgment was refused by the Court of Appeal.
- [12]Applying those principles to the circumstances of this case I am satisfied that this is an exceptional case. In so concluding, I have taken into account the third defendant’s conduct set out above; and in particular the very real prejudice to the plaintiff of granting leave at this very late stage. Mrs Kent deposes to a number of relevant matters in this regard in her affidavit filed by leave on 3rd September 2001. The plaintiffs are residing in a home that is literally falling down. Neither of the other defendants have sought to involve the Council, and neither opposes the plaintiffs’ application. It is highly probable that the Council would carry out its intention to vigorously defend the claim. The third defendant provides no explanation for the delay in making this application. I can infer that one reason may be his desire to involve the Council in an agreement to indemnify, which was highly unlikely at least from January 2001. I am satisfied that the involvement of the Council at this stage would also lengthen the trial; and in a peripheral sense I take into account the opinion of the Council’s solicitors that the third defendant’s claim for indemnity is weak.
- [13]Enquiries at the Registry indicate that the next callover will be held at 9.30am on 14th September 2001 for a sittings commencing 1st October 2001. There is some possibility that a trial date could be obtained in that week. Undertaking the balancing act referred to in McKenzie J’s observations in Just GI Pty Ltd, I refuse the third defendant’s application with costs.
- [14]In relation to the plaintiffs’ application I order:
- (a)the parties serve expert reports upon other parties by 24th September 2001.
- (b)the claim be placed on the callover list for matters to be called over on 14th September 2001 without the need for the parties to sign a request for trial date;
- (c)the third defendant to pay the plaintiffs’ costs of the application to be assessed on the standard basis.