Teitzel v Bull[2005] QDC 270

[2005] QDC 270

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1691 of 1996

HIS HONOUR:  In the age of Dickens one might have viewed with equanimity the leisurely pace at which this plaint advances towards trial.  It is becoming concerning.  As the years pass the parties bring additional interlocutory applications and costs in respect of claims which are not by any means enormous in financial terms - they are about $100,000 on each side - escalate. 

The defendant is able to point to delays on the plaintiff's part including risible difficulties in taking advantage of orders obtained from Judges to permit amendment of the statement of claim, in particular to incorporate a claim for compound interest.  Mr Wellner has also pointed to the lateness by something like a year of the plaintiff's reply to the counter-claim. 

There are complaints made in the other direction by Mr Van de Walt, representing the plaintiff, in particular to the effect that the defendant is determinably resisting the matter's coming to trial.  There is some foundation for a general assertion that every time the plaintiff's camp is stirred into action to do something, a retaliatory application is made or step is taken by the defendant. 

I emphasize I am not engaged in seeking to assign blame today.  The plaintiff's application before the Court filed on the 5th of August 2005 seeks that the Court dispense with the defendant's signing of a request for trial date so the matter can be placed on the call-over list. 

The retaliatory application of the defendant was filed a week later.  It seeks pursuant to rule 376(4) of the Uniform Civil Procedure Rules that the defendant have leave to amend his defence to insert a counter-claim "as indicated in the amended defence and counter-claim filed on or about the 5th of January 2005".  It also seeks an order that the plaintiff provide further and better particulars as requested by the defendant on the 9th of September 2002 (sic). 

The defendant filed on the 20th of March 2003 an amended defence and counter-claim which included a counter-claim for the first time.  That is essentially the counter-claim sought to be pursued now.  The reply, whose efficacy Mr Wellner disputes given its lateness, raises the statute of limitations against the counter-claim. 

The purpose of the first part of the defendant's application is to immunize the defendant against attack in the form of a limitations defence.  Mr Wellner has located authorities which indicate that assuming there is a limitations problem in the addition of new causes of action in a counter-claim, the Court may make orders which remove it. 

He refers to Draney v. Barry [1999] QCA 491, Theodoulou v. Body Corporate for the Proprietors Eighth Avenue Plaza [2001] QDC 357, as well.  Both of those cases dealt with amendments to raise a cause of action apparently late by plaintiffs.  Unsurprisingly, Mr Wellner has not been able to find authorities that assist in respect of the making of counter-claims although, speaking generally, a counter-claim is treated no differently from a cause of action being pursued by a claim. 

The point of Draney v. Barry was that section 81 of the Supreme Court of Queensland Act 1991 was an independent basis on which the claims could be added and the Limitations of Actions Act 1974 circumvented.

The decision caused some consternation.  The section has subsequently been amended by the addition of a new subsection (3):

"Despite subsection (2), the rules of court may limit the circumstances in which amendments are made."

Rules of Court have indeed done that.  It seems to me there may be novel and difficult questions raised by the defendant's principal application.  It is difficult to feel any sympathy for the defendant's request that they be dealt with now, which is, it seems to me, made on the "tit for tat" tactical basis.

The application is made in support of a pleading from March 2003, and long after the impugned reply revealed the existence of a limitation issue.  The issue can, as the pleadings exist, be determined by the trial judge.  There might have been good reason for dealing with it now if some beneficial effect by way of substantially reducing the length of the trial could be achieved.  I am not persuaded that that is the case. 

The counterclaim is quite succinct.  It refers to the expenditures the defendant made in the acquisition of business premises, a four-wheel drive motor vehicle and the like.  Quantification of lease payments for the vehicle, the cost of getting premises, et cetera, should be extremely simple and not time-consuming.  The defendant says the plaintiff is responsible for his expenses pleaded in the counterclaim.

The second aspect of the defendant's application has taken some time for the Court to understand.  The particulars requested have never been supplied by the plaintiff.  It is said for the plaintiff that this is because of deficiencies in the defendant's disclosure which have been pursued to the extent of obtaining Court orders on a couple of occasions.  The plaintiff is still asserting disclosure is insufficient, but has abandoned any attempt to get more.

The request for particulars was, as Mr Wellner succinctly put it in summarising views that I was moving towards, that his request for particulars has been superseded by the pleading of the defendant of the 20th of March 2003.  I think that is correct.

The main point of the request was to obtain chapter and verse from the plaintiff of general allegations that the defendant had failed to comply with the equivalent of implied terms of the agreement sued on by the plaintiff to keep business activities of the defendant in which the plaintiff was interested strictly separate and recorded strictly separately.  The plaintiff needed to establish a breach of that agreement in order to terminate it, as he did in June 1995, according to him; he now wants to obtain appropriate monetary redress from the defendant. 

Less important is the request for particulars in relation to the terms on which the plaintiff obtained financial accommodation from a bank to produce a fund which was admittedly paid over to the defendant.

The plaintiff's obligation, indeed the whole of the agreement the plaintiff asserts, was dependent on his obtaining satisfactory finance.  It seems to me totally irrelevant to pursue by request for particulars the conditions of finance.  This was a condition of the kind that the plaintiff was entitled to waive.  Further particulars sought as to the means or mode of the moneys being given to the defendant seem pointless and irrelevant, given that the defendant admits he got the money. 

Paragraph 9(d) of the amended defence and counterclaim of 20th March 2003 asserts:

"that neither party performed in accordance with the terms of the agreement and the agreement was of no effect, voidable or void at law."

The explanation for that allegation is that the defendant says the parties' true agreement was something very different from the one they documented with a view to misleading the bank into providing funds to the plaintiff.  Given the defence plea that the agreement asserted by the plaintiff was not performed by either party, it seems to me that the plaintiff has the advantage that by definition the defendant repudiated it, giving a basis to terminate for breach. 

The different agreement which the defendant asserts is, of course, the basis of his counterclaim.  As the pleadings stand, it seems to me totally inappropriate to put the plaintiff to the trouble of assembling particulars of discrete kinds of breaches when the defendant is admitting by a global non-recognition of the agreement. 

It follows from the foregoing that the defendant's application filed on the 4th of August 2005 ought to be refused. 

So far as the plaintiff's prior application is concerned, I think it is advisable from every point of view to advance this proceeding to trial.  Mr Van der Walt has made it clear that the plaintiff is willing to accept the risks of the disclosure that he has had being incomplete, et cetera.  The requirements of effective case management are important here and to my mind those dictate the facilitation of trial at an early date.

Mr Wellner has not been able to point to any disadvantage which his client would face if the matter were set down at a callover as things stand at the moment, so far as concerns preparation for the trial, and offered a relatively early trial date. 

On the plaintiff's application, the Court dispenses with the signing of a request for trial date by the defendant under rule 469(4).  I think it follows without any further order that the matter will be placed on the callover. 

I refuse Mr Van der Walt's oral application for an order confirming (if that be necessary) the efficacy of the late reply which raises the limitation defence.  Acceding to it while rejecting the defendant's application would create an impression of lack of evenhandedness.  It would be astounding if the trial judge refused to consider a defence raised years ago, but it will be a matter for him or her.

HIS HONOUR:  All the costs should be costs in the cause.