Resseck Pty. Ltd. v Buchanan[2011] QDC 177

HIS HONOUR: The court records undertakings by the defendant's solicitor to pay over to the plaintiff's solicitors the amounts of the costs orders in its favour of the 1st of October 2010, 25th of January, 2011, and 22nd March 2011 by the 12th of August 2011, and to provide within 14 days from today:

1. (a)
   an amended list of documents to bring the defendant's disclosure up to date, including identification of any documents previously disclosed which the defendant no longer has access to; and

2. (b)
   a signed request for trial date.

I dismiss the application of the plaintiff filed on the 6th of July 2011 and there is no order as to costs, the reasons for which I will now explain.

This is but the latest in a series of attempts the plaintiff has made to obtain judgment for its claim against the defendant without a trial on the merits. He is sued as guarantor of the obligations of a purchaser of produce from the plaintiff.

The assertions he makes include ones of overcharging by the plaintiff, which he says was limited by an agreement, apparently oral, that the prices to be charged would be cost price plus a mark-up of 10 to 14 per cent. In the circumstances, his contention is that excessive mark-ups were applied. That contention is made not only in the defence but in support of a counter-claim seeking relief of a Trade Practices Act kind.

The present application is based on Rule 374 which applies if a party does not comply with an order to take a step in a proceeding. The orders that the court may make include under subrule (5)(a) giving judgment against the party served with the application. The orders which it's asserted the defendant didn't comply with include three costs orders. I may say I'm doubtful about the appropriateness of granting a judgment which, as a matter of merits, may be entirely unwarranted, against a defendant who has not satisfied costs orders. As it happens, Mr Miotti is now in possession of funds in his firm's trust account which will enable that matter to be attended to.

The other aspect of non-compliance with an order concerns a failure to produce copies of documents which have been disclosed. Belatedly, what Mr Miotti has has been made available. That's occurred since the application was filed and served. What has been made available does not include what Mr Miotti describes as documents which the plaintiff has and has itself disclosed. Those are for the most part or entirely the invoices setting out the alleged indebtedness.

There's a proper forensic purpose to be achieved by the plaintiff in gaining an acknowledgement from the defendant that he or the debtor company, which is now in liquidation, received the invoices; also there may be pertinent material contained on such documents by way of notes and the like which could assist the plaintiff's case.

Mr Miotti says that the reason for non-production of copies of that material is that he doesn't have them. The thought reasonably is that the company in liquidation may have had them but that the liquidator is, for whatever reason, not able to make copies available now. That confusion renders appropriate the second undertaking of Mr Miotti recorded.

As to the signing of request for trial date, he assures the court that his client, who he says is under significant disabilities at the present time on account of medical events, is anxious to have the matter determined at a trial on the merits to the extent of his being able to give the undertaking mentioned. That should obviate the difficulties Ms Heard for the plaintiff apprehends of yet another application to the court being necessary to advance the matter towards trial.

Although the plaintiff enjoys success, some already achieved and more to be achieved pursuant to the undertakings, there will not be any judgment in its favour today. In my understanding over the years the court has always been very careful to distinguish between relief granted against an errant plaintiff under Rule 374 who in the right circumstances can be expected to be made to suffer a heavy price for not complying with orders of the court and judgement against an errant defendant. It's quite a different thing, where a defendant has failed to comply, to impose by way of a penalty for that a judgment which may be totally unjustified on the merits. The extent to which Mr Miotti has fixed things up underlines the inappropriateness in the particular circumstances of this case of ordering judgment as sought for a six-figure sum against his client.

The court’s reason for not making an order for costs in favour of the applicant/plaintiff is that it's clear from Rule 374 subrule (4)(a) that the ground on which the application is based must be set out in the application. It may be that from the four-page affidavit of Ms Heard, which comes with a 70-page exhibit book, one can understand what the ground are but the rule is clear that the application itself must allege the grounds; that comment is justified if reference is then made to subrule (4)(c) which refers to the application "together with all affidavits to be relied on in support." In that context, when the rule says that the application must allege grounds, in my view, that is literally what it means. So the application on close examination is one not within the rule.

It's fortunate that it's the occasion for orders to be made which appropriately advance matters.