Coy v Herrmann
[2013] QDC 316
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- Unreported Judgment
- Coy v Herrmann[2013] QDC 316
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Coy v Herrmann[2013] QDC 316
Coy v Herrmann[2013] QDC 316
DISTRICT COURT OF QUEENSLAND
CITATION: | Coy v Herrmann [2013] QDC 316 |
PARTIES: | LISA JANE COY v VANESSA LEIGH HERRMANN |
FILE NO/S: | 1377/2013 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 31 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 October 2013 |
JUDGE: | Samios DCJ |
ORDER: |
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CATCHWORDS: | PRACTICE – Originating application – step in the proceedings – want of prosecution – where the applicant seeks leave to take a step in the proceedings pursuant to rule 389 of the Uniform Civil Procedure Rules – where the respondent to the originating application seeks an order for the originating application be dismissed for want of prosecution – where the respondent in the alternative seeks the originating application be dismissed on the basis of no reasonable cause of action Legislation: Rule 171, 389 Uniform Civil Procedure Rules Cases: Tyler v Custom Credit Corp Limited & Ors [2000] QCA 178 Stanford v Stanford (2012) HCA 52 |
COUNSEL: | Mr Bunning for the applicant Mr Linklater-Steele for the respondent |
SOLICITORS: | Family Law Care Solicitors for the applicant Carroll Fairon Solicitors for the respondent |
- [1]There are two applications before me today. In one of those applications, the applicant, who was the applicant in the originating application, seeks leave to take a step in the proceedings pursuant to rule 389 of the Uniform Civil Procedure Rules. The respondent to the originating application also brings an application by which she seeks an order that the originating application filed 7 May 2010 be dismissed for want of prosecution. In the alternative, she seeks an order pursuant to rule 171 of the Uniform Civil Procedure Rules that the originating application filed 7 May 2010 be dismissed on the basis of no reasonable cause of action. In both applications before me today, other orders are sought which are unnecessary at this stage to mention.
- [2]I will call the applicant in the originating applicant “the applicant” for these reasons, and consequently, the respondent in the originating application as “the respondent” for the purpose of these reasons. The applicant and the respondent, it is accepted, were in a property relationship. There is a dispute as to the dates between which they were in that de facto relationship. The applicant says the relevant dates were between December 2005 and 24 October 2008, when they separated under the one roof and lived together, but not as a couple, until November 2008. As far as the respondent is concerned, the relationship commenced on 13 December 2005, but they did not live together until about March 2006. The respondent says they separated in late March or early April 2008.
- [3]For the purposes of the applications before me today, the date of cohabitation and separation does not assume significance, because both parties agree that the relationship was of at least two years. There is no challenge by the respondent to the jurisdiction of the court to hear the originating proceedings, except, of course, the application is now made that the application be dismissed on the basis of no reasonable cause of action. However, the basis of that application is not because of an argument about the duration of the relationship, but rather on the ground that there is no or insufficient evidence to support a claim being made that there be an adjustment of property interests or other orders being made under the legislation.
- [4]Rule 389 of the Uniform Civil Procedure Rules provides, by subrule (2), “If no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.” It is accepted by the applicant that no step has been taken by the applicant since 28 June 2011 and no step in the proceeding since 9 August 2011. In my opinion, it is significant, on the hearing of these applications today, that the submissions that are being made be seen in the context of orders that were made by the parties by consent. Those orders were filed by consent on 20 April 2011.
- [5]The applicant’s application for adjustment of property interests was filed on 7 May 2010. The evidence also shows that, as these orders provided, there has been delivery of lists of documents. The orders intended that a valuer be selected, and then there would be a mediation. Even before the orders of 20 April 2011 were made, the parties had already provided lists of documents and amended lists and had further filed affidavits and reply affidavits in relation to the substantive proceedings.
- [6]It is to be noted that, from the time the originating application had been filed, which is now some three and a half years ago, the respondent had not applied to the court for an order that the originating application be dismissed on the ground now being advanced before me today.
- [7]Basically, the dispute between the parties now appears to be about a property at 7/300 Wickham Terrace, Fortitude Valley. In particular, the parties, through their lawyers, reached disagreement about how the property would be valued, that is, whether it would be valued retrospectively, that is, at the date the parties commenced their relationship and when they separated. The applicant had contended that it be valued currently, that is, at the date the valuer was going to approach the task. It is now conceded today, for the purpose of progressing the proceedings by the applicant, that the valuation be a retrospective valuation.
- [8]I did not take Mr Bunning, who appears on behalf of the applicant, to accept that is necessarily correct; however, it has been accepted by the applicant that, if that is the way the stalemate, as he called it, could be advanced, then the applicant would accept such an approach. Of course, Mr Linklater-Steele, who appears on behalf of the respondent, submitted it was always going to be a retrospective valuation. I took him to say it was wrong on the part of the applicant to assert or contend for a different valuation, that is, implied in his submissions I took him to say that it has been the fault of the applicant that the proceedings did not progress; further, that the applicant does not have a case, on the evidence, to progress.
- [9]I do not think I can decide today that the valuation was always going to be a retrospective valuation. It would seem arguable that it was to be a retrospective valuation. Nevertheless, the parties appear to have got into dispute about it. Even so, as I have said, the originating proceedings progressed with lists of documents and amended lists being exchanged and affidavits being filed and reply affidavits being filed dealing with the substantive issues. It was not as if, to my mind, the application was brought and then went dormant. The consent orders were made on the 20th of April 2011 obviously with the intention by both parties that the matter proceed forward.
- [10]I do not think that while, at the end of the day, somebody might conclude it was always going to be a retrospective valuation, that should necessarily determine these applications against the applicant. In Tyler v Custom Credit Corp Limited & Ors [2000] QCA 178, the Court of Appeal held that the court’s discretion in deciding whether to give leave to proceed under rule 389 is not to be fettered by rigid rules. Atkinson J, with the agreement of the other judges, identified a number of factors which the court will take into account. It is correct, looking at that list of factors, that the events have occurred some years ago, although I do not think the number of years ago is that significant when one has regard to the narrow issue now with regard to one property, and what appears to be the availability of most documentation if not all documentation in due course.
- [11]Some documentation may now no longer be available, I have to accept. Nevertheless, the events do not appear to me to have occurred so long ago and the documentation is not so damaged due to time that justice cannot be done to both parties. Further, the application was filed in my opinion not long ago, namely, the 7th of May 2010. The next factor referred to is the prospect of success. Now, in this respect Mr Linklater-Steele has pointed to the affidavits of the applicant. It is correct that she has in a subsequent affidavit accepted she did not contribute $16,100 towards the initial purchase price of the property, which I take her to have been saying not in one lump sum.
- [12]She went on to say in her affidavit, though, her contribution of 16,100 was made over time through her contributions to MISA account and loan account. It is correct, as Mr Linklater says, later she talks about the need to refer to documentation rather than having the documentation available. In paragraph 35 subparagraph (b) of the affidavit filed 12 November 2010 it is correct, as Mr Linklater-Steele said, that she said, “I am unable to quantify my continuing contribution until I receive disclosure from the respondent.” Notwithstanding those observations about the applicant’s evidence, I am unable to conclude that she could not have a arguable case that could succeed before a judge hearing the case.
- [13]Now, I am mindful of the submission that has been made with respect to these types of cases in the High Court in Stanford v Stanford (2012) HCA 52, which was referred to me by Mr Linklater-Steele. Unfortunately it is in the nature of relationships and the breakdown of those relationships that documentation will not be readily available to one or both of the parties. Nevertheless I am not satisfied that there is here no reasonable cause of action. It seems to me that the matter was proceeding expeditiously. The parties made consent orders. A dispute arose about the valuation of the property, and matters seemed to not go well after that in terms of the applicant progressing the matter.
- [14]At the same time, I do not accept the periods during which the applicant appears to have not physically done something or her solicitor putting the file away for a number of months is a reason to dismiss the proceedings. I do not accept it can be said that while there might be delay it is such as to disqualify the applicant. The periods of delay are not significant in the context of the proceedings and the context of the dispute that seems to have arisen with regard to progressing the matter pursuant to consent orders that were made by the parties on the 20th of April 2011. Therefore I do not accept that the applicant should be disqualified from proceeding with the application.
- [15]In that respect I am mindful that it does appear, as I said, the applicant did not physically advance the proceedings. She has not sworn to being ill at the time, however in my opinion it does not follow that an applicant fails to progress a matter because they do not go to their solicitor and push the solicitor or be seen to be doing so. In this case the solicitor also of course, as I said, put the file away for a number of months. Again, it was argued that some explanation was required. These are things in my opinion that just cannot be explained. They happen during litigation, but the fact that they happen does not disqualify the applicant in my opinion in the context of the other circumstances I have mentioned in this matter.
- [16]There is of course prejudice to the respondent. As Mr Linklater-Steele pointed out, this jurisdiction – the primary order that is made is that there is no order as to costs, and she would be bearing those costs of the matter proceeding. Further, there will be arguably more cost to be incurred with the matter progressing through stages, even including a mediation. Nevertheless, that unfortunately is a consequence of litigation, and further, being unable to reach agreement – there is no fault in not being able to reach agreement. It is just that it happens, and when it happens it costs people money, unfortunately. On the other hand, if I were to dismiss the applicant’s application then she would be statute barred from prosecuting her case, and I do not think the court should do that lightly.
- [17]Therefore I’ve come to the view balancing all the relevant factors here that the applicant should be given leave to proceed with the proceedings. I dismiss the application by the respondent which seeks an order that the proceedings be dismissed for want of prosecution. Further, I dismiss the respondent’s application which seeks in the alternative that the proceedings be dismissed on the basis of no reasonable cause of action. I will therefore make an order sought by the applicant that there be leave to proceed. I will also make orders that can amend the consent orders I have referred to, however hopefully they would be orders that can progress the matter, Mr Bunning and Mr Linklater.
- [18]Well, there’ll be an order as per the draft then in the circumstances initialled by me and left with the papers. That’s the orders on the application filed by the applicant. Mr Linklater-Steele’s applications – they’ll be noted as having been – they of the respondent will be dismissed.
- [19]I retreat from what I’ve said, and in light of the concession and giving it more thought it seems that Mr Linklater-Steele is correct. Therefore on Ms Herrmann’s application I order that the applicant Ms Coy’s solicitors pay the respondent Ms Herrmann’s costs of the application by Ms Herrmann.