Stegman v Glanville[2008] QDC 317

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendants have applied to strike out or dismiss the plaintiff's claim and for judgment in terms of their counterclaim, essentially on the basis of extended delay and failure to comply with several of the Uniform Civil Procedure Rules (the UCPR).  The application was heard on 15 October 2008.

The contract and the proceedings.

2. [2]
   In early 2005, the defendants entered into a contract by which they agreed to purchase from the plaintiff a unit at Spring Hill.

3. [3]
   By letter dated 7 February 2005, the defendants’ solicitor purported to terminate the contract.  In the defence and counterclaim, it is pleaded that the termination was justified because:

1. (a)
   it took place within the cooling off period, within the meaning of s. 368(1) of the Property Agents and Motor Dealers Act 2000;

2. (b)
   the body corporate records for Centrepoint Apartments recorded liabilities that were not part of the body corporate's normal operating expenses, and which were not disclosed in the contract, in breach of s. 223 of the Body Corporate and Community Management Act 1997.

4. [4]
   For reasons set out below, I need not decide the validity of that termination to dispose of this application.

5. [5]
   The contract for the sale of the unit was not completed and, on 17 November 2005, the plaintiff commenced proceedings against the defendants, seeking to recover damages for breach of the contract. The defendants filed the notice of intention to defend, defence and counterclaim on 16 December 2005 seeking, among other things, an order that the deposit monies paid into court in the proceedings be paid out to the defendants along with accretions if any.  The plaintiff filed a reply and answer on 17 January 2006.

6. [6]
   By letter dated 24 January 2006, the defendants’ solicitor requested, pursuant to r 222 of the UCPR, copies of certain documents referred to in the statement of claim and asked for particulars of the reply and answer.

7. [7]
   There followed a course of correspondence between solicitors for the parties, culminating, on 31 March 2006, in the defendants' solicitor writing, pursuant to r. 444, complaining of the plaintiff's failure to provide documents and particulars in accordance with the defendants' request, and the plaintiff's failure to discharge his duty of disclosure.  The defendants’ solicitors sent a follow-up letter on 12 April 2006.  The plaintiff did not respond.

8. [8]
   On 15 September 2008 a further “r. 444 letter” was sent to the Plaintiff.  Again, the plaintiff did not respond.

9. [9]
   This application was filed on 23 September 2008.

10. [10]
    On 24 September 2008, the defendants’ solicitor sent a copy of the application and supporting material to the plaintiff’s address for service. The plaintiff’s solicitors had merged with another firm and were now operating under another name. That firm replied to the defendants’ solicitor indicating that it held no instructions from the plaintiff but would forward the material “to an address we have located for” the plaintiff and would revert to the defendants’ solicitor if their mail was returned before the hearing of the application.

11. [11]
    As it turned out, the plaintiff had been declared bankrupt on his own petition on 22 February 2008.  The defendants’ solicitor discovered this on 14 October 2008.  By letter the same date, the plaintiff’s trustee in bankruptcy confirmed the plaintiff’s awareness of the application and communicated an election pursuant to s. 60(2) of the Bankruptcy Act 1966 (Cth)^[2] not to proceed to prosecute the plaintiff’s claim.

12. [12]
    There was no appearance for the plaintiff at the hearing of the application.

The consequences of the plaintiff’s bankruptcy

13. [13]
    Rule 72 of the UCPR provides that the defendants require leave of the court to take a further step in the proceeding against the plaintiff.

14. [14]
    Section 58 of the Bankruptcy Act 1966 (Cth) relevantly provides:

1. “(3)
   Except as provided by this Act, after a debtor has become bankrupt, it is not competent for a creditor:

1. (a)
   to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

2. (b)
   except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

...”

15. [15]
    The definition of a “provable debt” relevantly includes:

“… all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he … may become subject before his … discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his … bankruptcy”^[3]

16. [16]
    In my opinion, the counter-claim – for the payment of the deposit monies out of court to the defendants – is not a proceeding “in respect of a provable debt”, so as to require leave under s. 58 from the Federal Court.  It does not attempt to impose a liability on the plaintiff.^[4]

17. [17]
    The present application is not, therefore, a step in proceedings in respect of a provable debt.^[5]

18. [18]
    The trustee’s election not to pursue the plaintiff’s claim is not decisive of the question of whether the claim should be struck out or dismissed^[6] but it does mean the person presently entitled to pursue the claim has effectively abandoned it.  I consider it appropriate to take into account that circumstance into account as one relevant consideration in deciding this application.

Should the claim be dismissed?

19. [19]
    The defendants’ Counsel submits the claim should be struck out or dismissed because of:

1. (a)
   the delay of well over 2 years since the last step was taken in the proceeding (the last step being the delivery the defendants' list of documents in March 2006);

2. (b)
   the plaintiff's failure to comply with the UCPR by providing:

1. (i)
   a response to the defendants' request for particulars and r. 444 correspondence (see r. 445);

2. (ii)
   a response to the defendants' request for documents (see r. 222);

3. (iii)
   disclosure within 28 days of the close of pleadings (see r. 214(2)(c)).

20. [20]
    It is necessary to set out some detail of the facts pleaded to follow the arguments referred to in paragraph 16(b).

21. [21]
    The plaintiff pleaded that the parties entered into “a written contract of sale of Property (“the original contract”)” on or about 24 January 2005.

22. [22]
    The defendants pleaded the parties were not bound by “the Original Contract”, for reasons stated in the defence, until 2 February 2005.

23. [23]
    The plaintiff replied, referring to “a facsimile copy of the Original Contract” and “the full Original Contract”.

24. [24]
    In the letter of 24 January 2006, the defendants’ solicitor sought particulars of certain allegations in the reply and answer and requested copies of documents referred to in the statement of claim and the reply and answer, including the “Original Contract” and the “full Original Contract”.

25. [25]
    I am not satisfied that the requests for particulars were sufficiently well founded that the failure to supply them could support an order for dismissal of the claim.  The first - which was said to arise out of an inconsistency in the reply and answer - requested particulars of allegations that seem plain enough in their terms.  The second sought particulars of what seems to be a legal assertion in the plaintiff’s reply that a facsimile letter sent by the defendants to the plaintiff “did not state that it was a termination given pursuant to s 368(1) Property Agents and Motor Dealers Act 2000 as required by necessary implication of s 368(2) of that Act.”

26. [26]
    The defendants’ remaining complaints are well founded.  The material before the court shows the plaintiff did not respond to the defendants’ requests.  The defendants were entitled to request the documents sought (r 222).  The plaintiff has failed to make disclosure within the time required (rules 211 and 214) or at all.  And, despite the correspondence referred to in paragraph 7 of these reasons, the plaintiff has taken no steps to progress the claim.

27. [27]
    But that the defendants’ solicitor served a list of documents with a letter dated 21 March 2006, the case has not progressed beyond the pleadings, the last of which was, as I have said, filed on 17 January 2006.

28. [28]
    The plaintiff is in breach of the undertaking implied by r 5 of the UCPR to proceed in an expeditious way.  Rule 5 expresses the purposes of the Rules as “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”

29. [29]
    The court may impose sanctions if a party fails to comply with the rules (r 5(4)).  The examples given include dismissing a proceeding.^[7]

30. [30]
    More particularly, power to dismiss a proceeding in a case like the present may derive from statute or UCPR rules 317 or 280:

1. (a)
   Section 85 of the Supreme Court Act 1991 relevantly provides:

3. (1)
   This section applies to the District Court and Magistrates Courts.

3. (2)
   If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.

(3) ….

2. (b)
   UCPR r 371 relevantly provides:

Effect of failure to comply with rules

371...

3. (2)
   Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may —

1. (a)
   set aside all or part of the proceeding; or

...

1. (f)
   make such other order dealing with the proceeding generally as the court considers appropriate.

2. (c)
   UCPR r. 280 relevantly provides:

Default by plaintiff or applicant

280

3. (1)
   If —

1. (a)
   the plaintiff or applicant is required to take a step required by these rules or to comply with an order of the court within a stated time; and

2. (b)
   the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

3. (2)
   The court may dismiss the proceeding or make another order it considers appropriate.

31. [31]
    The Claim should be dismissed because more than two years have passed since the last step was taken, the plaintiff did not provide disclosure as required by the rules and did not respond to the defendants’ reasonable request for documents.  The plaintiff has not explained his inaction and the trustee in bankruptcy, the only person who may, for the time being, attempt to progress the claim, has elected not to do so.  There is no likelihood, in the foreseeable future, of any attempt being made to prosecute the claim.   There is no evidence to support an inference that the claim has reasonable prospects of success.  The delay is not attributable to the defendants.  In the interests of justice the case should be brought to an end.^[8]

The counterclaim and the deposit.

32. [32]
    The only claim the plaintiff could have to the deposit would be under the contract.  Upon the plaintiff’s claim being dismissed, the deposit money paid into court should be returned to the defendants.  Without an order, the deposit monies will remain in court.

33. [33]
    The applicants sought an order giving judgment on the counterclaim.  It is unnecessary to make that order to dispose of this application and I decline to so.  The order that the deposit monies paid into court be paid out to the defendants is a practical necessity upon the dismissal of the claim in the absence of any other claim on the money.  I have not adjudicated upon the validity of the defendants’ termination of the contract.

Orders

34. [34]
    I order that:

1. 1.Leave be granted under UCPR r. 72(1) to the defendants to file and pursue the application filed 23 September 2008.

1. 2.The plaintiff’s claim be dismissed.

1. 3.The deposit monies paid into court in the proceeding be paid out to the defendants along with accretions if any.

1. 4.The plaintiff pay the defendants’ costs of and incidental to the proceeding fixed in the sum of $19,946.^[9]

1. 5.These orders be stayed for 14 days from the date of these orders.

1. 6.The defendants serve a copy of these orders and the affidavit of Mr Byres sworn on 14 October 2008, exhibiting the estimate of recoverable costs on the standard basis, on the plaintiff and the trustee in bankruptcy of the plaintiff forthwith.

1. 7.There be liberty to the plaintiff and the trustee in bankruptcy of the plaintiff to apply.