Hall Enterprises Pty Ltd v Young
[2001] QDC 244
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- Unreported Judgment
- Hall Enterprises Pty Ltd v Young[2001] QDC 244
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Hall Enterprises Pty Ltd v Young[2001] QDC 244
Hall Enterprises Pty Ltd v Young[2001] QDC 244
DISTRICT COURT | No 3520 of 1996 |
CIVIL JURISDICTION
SENIOR JUDGE TRAFFORD-WALKER
HALL ENTERPRISES PTY LTD 009969644 | Plaintiff |
and
ROBERT GRAEME YOUNG | First Defendant |
and
WILLIAM PATRICK BUCKLEY | Second Defendant |
and
THOMAS TIBERIO BALIN | Third Defendant |
BRISBANE
DATE 30/08/2001
JUDGMENT
HIS HONOUR: This is an application under rule 389(2) of the UCPR for leave to proceed. It is first of all necessary to set out the chronology of this matter.
In late 1992 the plaintiff owned a property situated in Springwood, Brisbane. Young and Company (Queensland) Pty Ltd, hereinafter referred to as “the company”, offered to lease the plaintiff's premises. At about that time the company signed a document titled a lease and a Mr Lowe and the first, second, and third defendants signed a guarantee. The company took possession of the premises.
On 2 November 1995 an order was made winding up the company and a liquidator appointed. On 27 November 1995 the liquidator disclaimed the lease of the premises under section 568 of the Corporations Law. On 8 December the plaintiff brought an application in the Supreme Court seeking orders against Mr Lowe. On 31 January 1996 Mr Lowe brought an application seeking contribution from the three defendants under the guarantees which they had signed.
On 5 March 1996 Mr Justice Ambrose issued orders which joined the three defendants as respondents. From then until September 1996 pleadings were filed in the Supreme Court. In September 1996 settlement of the action was reached between the plaintiff and Mr Lowe and the proceedings against Mr Lowe were discontinued.
On 26 September of that year the action against the three defendants was transferred to the District Court. In the Registry of this Court it was given the number 3520 of 1996. On 5 December 1996 the plaintiff commenced a new action in this Court and that was given Registry number 417 of 1999. That action effectively sought the same relief which had been sought in the action transferred from the Supreme Court.
On 11 March 1999 solicitors for the defendant wrote to solicitors for the plaintiff in the following terms:
“There have been no steps taken in these proceedings (3520/96) since 18 September 1996. No notice has been given of an intention to proceed in the matter 3520 of 1996. We contend that these proceedings should be dismissed for want of prosecution and you are put on notice that we will be bringing such an application.”
On 14 April of that year the District Court action number 419 of 1999 was struck out by consent of the parties. It is conceded, as it must be, that there has been considerable delay. There is no adequate explanation for that delay from solicitors for the plaintiff.
Affidavits have been filed which list a number of problems which arose in the plaintiff's solicitors firm. There were changes in solicitors and changes in the structure of the firm. However, these are excuses and not adequate explanation.
There is no statement from the plaintiff that during this period the plaintiff was actively pursuing the progress of its claim; no statement that the plaintiff had been in contact with the solicitors requesting of them what was occurring in relation to the progress of the action.
The letter from the solicitors for the defendants of 11 March 1999 clearly brought to the attention of the plaintiff's solicitors that delay in taking any steps was an important consideration for the defendants. I have been supplied with affidavits from the second and third defendants. The second defendant, William Patrick Buckley, is 64 years of age. In paragraph 5 of his affidavit he states as follows:
“Having received no communications about the matter proceeding, and believing that it would not proceed, by the end of last year I decided to scale down my work activities in preparation for semi-retirement. If I had been aware that the plaintiff was going to pursue these proceedings, I would have not scaled down my work involvements and continued to earn an income. My income levels have drastically reduced. Further, my work involves being aligned with developers in coordinating marketing for them. Over the years I have been aligned with two or three developers but I have allowed my contact with them to significantly diminish as my work has scaled down. It is difficult now to re-establish those contacts to the extent they were previously.”
I have also received an affidavit from the third defendant, Thomas Balin, and he also is 64 years of age. In his affidavit he states as follows:
“Having received no communications about the matter proceedings, I believed that the matter was not going to proceed and began to prepare for retirement. Over the last two years I have been scaling down my working hours in preparation for retirement. My annual income has reduced substantially, and I anticipate that I will be entitled to an aged pension when I retire in January next year. If I had been aware that the plaintiff was going to pursue these proceedings I would not have prepared for retirement, and would have continued to work longer hours to ensure that I could continue to earn an income which would assist me in dealing with the costs in defending these proceedings. However, I am now in a precarious financial position and would have extreme difficulty in raising sufficient funds to defend these proceedings adequately or at all.”
These two defendants have altered their position and are now less able to defend the litigation as a result of the changes which have occurred while this action has been delayed. In Cooper v Hopgood and Ganim (1999) 2 Queensland Reports, page 113, at page 124 Mr Justice McPherson made this statement:
“Ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.”
This was quoted again in the case of Tyler v Custom Credit by Justice Atkinson, where a number of factors are outlined which are to be taken into consideration in such applications as this.
In the end one comes down to the proposition, as was stated in Tyler's case, that the Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay. I do not suggest that there would be an injustice, however in my view, having regard to the affidavits of the second and third defendants, it would be unfair to allow these proceedings to continue. In the circumstances, therefore, I refuse the application.
A question arises in relation to the first defendant, and he was not represented at this application, and as I understand it he was not served.
...
HIS HONOUR: So far as Young is concerned, the application is adjourned to the Registry.
...
HIS HONOUR: Mr Wilkins, you are entitled to the costs of this application, if not agreed to be taxed.
...