Raedel v Jezer Constructions Group Pty Ltd
[2006] QDC 257
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Raedel v Jezer Constructions Group Pty Ltd[2006] QDC 257
Raedel v Jezer Constructions Group Pty Ltd[2006] QDC 257
[2006] QDC 257
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1291 of 1999
GREGORY MELVILLE RAEDEL and KATHLEEN TERESA RAEDEL | Plaintiffs |
and | |
JEZER CONSTRUCTIONS GROUP PTY LTD (ACN 054 548 319) and COMPTON'S VILLAGES LIMITED (ACN 072 933 987) and MICHAEL WAI MAN CHOI, DORIS NGIE LIK CHOI (ALSO KNOWN AS DORIS TING) and PETER GRAHAM SCHMITH | First Defendant Second Defendant Third Defendants |
BRISBANE
DATE 10/07/2006
ORDER
CATCHWORDS: | Uniform Civil Procedure Rules r 469, r 470 - defendants' signature of request for trial date dispensed with, with acknowledgement that defendants' new solicitors, not yet in a position to assert positively any need for further steps, may bring the application back on to seek any requisite leave. |
HIS HONOUR: This is a very old action going back to 1999 which followed the giving of a notice of claim of charge under the Sub-contractors Charges Act by‑‑‑‑‑
...
HIS HONOUR: Yes, by a company called Ramaville, the principals of which were Mr and Mrs Raedel. It went into liquidation about 2000, is that right?
...
HIS HONOUR: Its interests having been made over in some way to the Raedels. It appears, with them doing the actual work, it was the sub-contractor to the first defendant for landscaping type work in the construction for the second defendant of a retirement village. The third defendants are brought in as guarantors. A sum of some $77,000 has been paid into Court by Compton's Villages Limited, which has no further interest in the proceeding.
...
HIS HONOUR: The amount paid into Court by the second defendant in connection with its freeing itself from the proceeding is about $70,000 which falls short of the $77,000 claim. The first defendant is also interested in obtaining access to those funds. It challenges the plaintiffs' claim on various bases including that extras were provided which were never sought and on the basis of liquidated damages being payable in respect of asserted late completion.
The matter has gone to sleep in the last couple of years to the extent that Ms Heath, representing the active defendants today, or her predecessors, thought that the claim might have been abandoned. It is accepted that that is not the case, leading Ms Heath to take an accommodating attitude. The Court is pleased to hear she has advised the Raedels who are self represented to give notice under rule 389 as required after a year's delay and is accepting, if there had been two years delay, which Mrs Raedel strongly disputes, that the Court would grant leave for the proceeding to go ahead anyway.
The present application arises because the defendants will not sign a request for trial date. Ms Heath is properly cautious about this, having come into the matter only very recently; it's a thick file which will take her some while to master. She's not positively asserting that steps of the kind referred to in rule 470(a) or (c) are required, but is properly anxious not to prejudice her clients' situation by rendering more difficult pursuit of such steps which would be the case if a request for trial date were signed.
She's also properly concerned on her clients' behalf about the enormous costs which they face of running what she estimates would be a five day trial in the District Court if the proceeding went ahead. In my opinion, the five days may well be an under-estimate of the time required. Mention has been made of mediation which is her favoured form of ADR, but she doesn't wish to rely on any reference to ADR to delay the progress of the proceeding.
From the point of view of legal representation at the least the plaintiffs, if they continue unrepresented, can litigate much more cheaply than the defendants could. The proceeding has been around for a while. I might say the parties have considered ADR in the past - a list of three members of the Bar including two senior counsel having been suggested by the defendants and a list of two supplied by the plaintiffs on the basis of advice that those two might be more warmly disposed to litigants in person.
Those gentlemen have all been named and they're all able. The Court has no difficulties about any of them, but it might be as well if, in preparation of any future list of mediators or people to run any other ADR procedure, those names weren't submitted again. When their names were in the ring, proposals for mediation did not advance.
While sympathetic to the Raedels' anxiety to get the proceeding brought to a head, the Court is also sympathetic to the practical importance of the cost considerations relied on by the defendants. It think it is possible to accommodate both and propose to make an order today that will get the proceeding onto the call-over, the next call-over being August the 11th.
That leaves a certain amount of time, indeed, fairly nearly what Ms Heath had suggested before anything too final from the point of view of hearing dates emerges. The Court's orders today are made on the basis that Ms Heath would be entitled at the call-over, as she has done today, to submit that the matter ought not to be assigned trial dates.
Mrs Raedel having given the undertaking I am about to describe, the Court makes the following orders:
On the plaintiffs' undertaking, by Mrs Raedel, to participate in an alternative dispute resolution exercise conducted,
- (a)by a suitable person to be chosen by the plaintiffs from a list of five submitted by the defendants and,
- (b)at the cost of the defendants in the first instance,
- (i) Dispense with the defendants' signature of the. . request for trial date under rule 469(4).
- (ii) Liberty to apply.
- (iii) Adjourn the application to a date to be fixed to be brought on by either side, including the defendants for the purposes of seeking leave under rule 470 or about disclosure, on seven days notice.
And then I reserve costs.