DISTRICT COURT OF QUEENSLAND

1. [1]
   HIS HONOUR: On the 2nd of November 2009, the defendants filed an application in which they sought to be substituted as defendants in an action commenced by the plaintiffs, Mr and Mrs Turner in the District Court Gympie, in 1992.

2. [2]
   The defendants are the administrators of the estate of the original defendant, Mr John Lefric Williams, who died on the 7th of August 2003. The application also sought orders that the claim be struck out for want of prosecution. The original claim was for specific performance and/or damages in relation to a contract between the deceased and Mr and Mrs Turner, dated the 14th of July 1989.

3. [3]
   The application came on for hearing before his Honour Judge Tutt in this Court on the 1st of December 2009, and his Honour made an order substituting the defendants as defendant in the original claim and adjourned the strike out application until this sittings. Mr and Mrs Turner were self-represented before his Honour and still are.

4. [4]
   His Honour also made certain directions. In a technical sense, the plaintiffs have complied with those directions, but the material filed does not really address the issues raised in the strike out application.

5. [5]
   The application, which is described in the Court file, D24/09 as an originating application, is in fact an application pending in the original proceedings and should be consolidated with the file Plaint number 11 of 1992 and, if it's necessary, I so order.

6. [6]
   Mr Williams (the deceased) as vendor, by a contract in writing dated the 14th of July 1989, agreed to sell to Mr and Mrs Turner, as purchasers, part of a Miner's Homestead Lease, MHL2563 at Gympie, subject to certain conditions.

7. [7]
   At the time, subdivision of the Miner's Homestead Lease 2563 had not been approved. There were three special conditions in the agreement, numbered 27, 28 and 30. They provided as follows:

“27. This contract is subject to and conditional upon the granting under section 19 of the Land Sales Act of 1984 - 1985, of an exemption from the provisions of sections 8 and 9 of the said Act, prior to the date of completion of this contract.  The vendor agrees to make immediate application to the Minister for Justice and Attorney-General within 30 days from the date hereof, of such exemption.

28. This contract is further subject to and conditional upon the sealing of the attached plan to the Widgee Shire Council and upon the registration of the said plan in the office of the Department of Lands, Brisbane, within 12 months of the date of this contract and subsequent issue of separate title for the land hereby sold.

…

30. It is agreed that the land to be described as Lot 3 on the attached proposed plan, shall be amended to contain an area of not less than four hectares by the addition of an area outlined in red on the said plan, which area shall provide access to water in a creek as discussed by the parties, but should Widgee Shire Council not approve such an addition, then the appropriate additional area will be derived by the addition of a strip of land along the boundary marked A-B on the said plan.  But should the Council not approve such an addition, then the vendor will, at his own expense, provide an easement for water supply purposes along the route of easement A, and should any dispute arise as to the location of either of the additional areas, or the route or terms of the said easement, then such dispute shall be resolved by the decision of James Michael Kerr, whose decision shall be final and binding on the parties.”

8. [8]
   It is common ground that the deceased never purported to comply with clause 27. The defence has always been that the Land Sales Act 1984 (Qld) then rendered the contract void.

9. [9]
   The contract did not settle on the scheduled completion date, namely, 14th of July 1990, making the contract voidable. Moreover, the sealing and registration of the plan referred to in special condition 28 of the contract which was required to occur by the 14th of July 1990, did not occur by that date and did not occur until some considerable time afterwards.

10. [10]
    A plan was ultimately approved and registered, but to the extent that it may be relevant, there is considerable doubt as to whether the plan as registered, was agreed to by the parties.

11. [11]
    These proceedings were commenced by way of Plaint filed on the 24th of May 1992. An entry of appearance and defence was filed on 6th of August 1992, which raised the section 8 point as a defence. The plaint was amended in a minor way on the 7th of September 1992, and discovery was then held between the parties. The last step in the action, was the filing on the 14th of October 1992, by the plaintiffs, of further and better particulars.

12. [12]
    The application is pursuant to section 85 of the Supreme Court of Queensland Act 1991 (Qld), which provides:

“85. Dismissal of proceedings for want of prosecution

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

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

3. (3)
   For this section, an application on which no order was made is taken not to be a step.”

13. [13]
    Mr Morgan, in his written outline filed on the 1st of December 2009, by reference to well-known authorities, sets out the principles applicable to such an application and makes the point that, with the advent of the Uniform Civil Procedure Rules, "The discretion to dismiss for want of prosecution may these days be confidently exercised, in appropriate cases, with more robustness than would previously have been considered appropriate.": per the Chief Justice in Quinlan v Rothwell [2001] QCA 176 at [4].

14. [14]
    This morning he has also referred me to judgment of Justice Atkinson, with whom the President and McPherson JA agreed in Tyler v Custom Credit Corporation Limited and others [2000] QCA 178. 

15. [15]
    No step has been taken in the action since the 14th of October 1992. The prejudice to the defendants is obvious. Mr Williams is deceased and although some of the history of the dealings between the parties can be ascertained from documentation, there is raised in the material significant issues of credibility in relation to which the defendants will now be seriously prejudiced if the action was to proceed. The claim is also holding up the finalisation of the administration of the estate of the deceased.

16. [16]
    The material filed by the plaintiff does not really address any of the reasons for the delay or other issues relevant to this application. It focuses on the plaintiff's strong sense of injustice as to what has occurred and/or refers to confidential inadmissible dealings between the parties at a mediation organised last year by one of the plaintiffs. It is obvious from the material over the years the plaintiffs have retained and have been represented by a number of firms of solicitors. They were represented in proceedings in 1998 before Justice Wilson in the Supreme Court: Williams v Turner [2008] QSC 327.

17. [17]
    It is apparent from the history set out by her Honour in her decision that, at the time of the signing of the 1989 contract, no deposit was paid. The plaintiffs lent Mr Williams $15,000 to be secured by a mortgage over the Miners' Homestead Lease. There was a separate memorandum in writing between the parties on that date to which her Honour refers in some detail. It permitted the plaintiffs to execute a mortgage on behalf of the deceased in certain circumstances, by use of a power of attorney created by the memorandum in writing. This they did and had the mortgage registered. The defendants, in the application before her Honour, successfully applied to have the mortgage so executed declared void and struck from the freehold land register.

18. [18]
    The plaintiffs have given no satisfactory explanation to explain why, at that time, when clear reference is made to these proceedings, no attempt was made to revive and proceed with this action. In their material the plaintiffs tend to blame various solicitors for their predicament but, really, give no good reason why they have not advanced this very old claim. On the last occasion Judge Tutt gave them time to get advice, and the same request is made in one of the affidavits filed today. Mr Turner also raises his medical condition, which is obviously distressing, but which has no relevance to the matters that should be considered in this application. I'm quite certain that if the application is adjourned again to the next sittings in April the plaintiffs would still not be ready to proceed.

19. [19]
    Mr Morgan has helpfully referred to a number of cases in which the discretion to strike out for want of prosecution has been exercised. In my view, this is as clear a case as one could imagine where the discretion should be exercised in favour of the defendants. I can do no better than repeat the words of Justice Chesterman in Althaus v Australian Meat Holdings Proprietary Limited [2009] QSC 5 in which his Honour said:

“73. It is more than four years since the proceeding started.  The events, the subject of the action occurred as long as 15 years ago.

74.  There is a responsibility on the plaintiffs and those who advise themto put their cases in proper form and get on with them.  These plaintiffs have been significantly unable to discharge that responsibility.  The time for indulgence has passed.  They must suffer the consequences of their own failures.

75. There is, moreover, prejudice to the defendants in having to stand ready to resist a further attempt by the plaintiffs to extract substantial sums of money from them.

76. The plaintiffs have completely disregarded the implied undertaking imposed on them by UCPR 5(3) and, accordingly, UCPR 280 would authorise dismissal of the action.  In any event, the inherent power of the Court to control its own process and dismiss for want of prosecution, is clearly appropriate.”

20. [20]
    Mr Morgan also makes a submission that, in any event, the original claim for specific performance was doomed to fail by operation of section 8 and section 19 of the Land Sales Act, as it then was. This issue was raised as a defence in the deceased’s entry of appearance and defence. The plaintiffs replied to the effect that as the deceased had not applied for exemption under the Act, he could not rely on section 8 as a defence. Mr Morgan has referred to section 19 of the Act, as it was in 1989, which governs such applications. I agree with him, that where the application is not made (for whatever reason), the contract dated the 14th of July 1989 (in this case) was by virtue of section 19(8) of the Act, void.

21. [21]
    In re Rosemac Pty Ltd's Caveat [1994] 1 QSC 137, a contract was executed containing a similar special condition requiring an application to be made by the vendor for exemption from sections 8 and 9.

22. [22]
    No application was made within 30 days from the date of contract, although an application was subsequently made and approved. The vendor refused to complete the contract. The purchaser sued for specific performance. White J held that as no application had been made within 30 days the contract was void. Her Honour made the following comments at page 141 about the effect of the special condition on the validity of the contract:

“The contract here in question was not void "ab initio" because it contained the special condition requiring application for exemption.  However, upon the failure to obtain that exemption within the time stipulated by the statute it then, by operation of statute, became void.  There are no degrees of voidance.”

23. [23]
    It would follow that the claim for specific performance was doomed to fail. The alternative claim for damages for breach of contract might still have been available to the plaintiffs, but for their egregious delay in prosecuting the claim. Having said that, the damages claim was never particularised and, as I've noted, the $15,000 paid was not by way of a deposit but was a separate transaction on the same day.

24. [24]
    The order of the Court is that proceedings instituted by Plaint number 11 of 1992, are dismissed.

25. [25]
    HIS HONOUR: Mr Morgan, do you ask for costs?

MR MORGAN:  Yes, your Honour, of the proceedings.

HIS HONOUR:  Now, do you have anything to say about costs?

MS TURNER:  Well, considering that I have been subjected to this for the last 19 years, that their clients have not done their duty as per the contract, I believe that they can pay their own costs.

HIS HONOUR:  All right.  Thank you.  The order of the Court will be that the plaintiffs pay the defendant's costs of and incidental to the action and the application to be assessed on the standard basis or as agreed. 

MS TURNER:  Is that the whole cost or 50 per cent?

HIS HONOUR:  No, that's the whole cost.

MS TURNER:  The whole cost.