McMahon Trading as Déjà vu Design v Christies Corporate Pty Ltd
[2014] QDC 255
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- McMahon Trading as Déjà vu Design v Christies Corporate Pty Ltd[2014] QDC 255
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McMahon Trading as Déjà vu Design v Christies Corporate Pty Ltd[2014] QDC 255
McMahon Trading as Déjà vu Design v Christies Corporate Pty Ltd[2014] QDC 255
DISTRICT COURT OF QUEENSLAND
CITATION: | McMahon Trading as Déjà vu Design v Christies Corporate Pty Ltd & Ors [2014] QDC 255 |
PARTIES: | KRISTIANE MCMAHON TRADING AS DÉJÀ VU DESIGN (applicant) v CHRISTIE CORPORATE PTY LTD (first respondent) and STEVEN DRANSCH (second respondent) and PAUL MARSHALL (third respondent) |
FILE NO/S: | 28/10 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Cairns |
DELIVERED ON: | 5 November 2014 |
DELIVERED AT: | Cairns |
HEARING DATE: | 5 November 2014 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE – APPLICATION FOR DECLARATIONS – APPLICATION FOR LEAVE TO PROCEED UNDER UCPR r 389 – whether delay of two years since last step – whether step in the proceeding for the purposes of r 389 UCPR Uniform Civil Procedure Rules 1999 (Qld), r 389. Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, applied Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd.R 592, applied Mundy v The Butterfly Company Limited [1932] 2 Ch 227, applied. Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, applied. |
COUNSEL: | Mr C Taylor for the applicant |
SOLICITORS: | Murray & Lyons for the applicant Williams Graham Carman for the respondents |
- [1]This is an application by the plaintiff for either a declaration that an effectual last step was taken in this proceeding on approximately the 12th of August 2014, or, alternatively, leave to proceed pursuant to rule 389 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
- [2]The application as filed asserted that the service of an amended list of documents on the defendants, on or about 14 February 2014, was an effectual last step in the proceeding; however, the applicant amended its application today to particularise the last step as the engaging of a quantity surveyor and requesting access to the premises relating to the claim against the first defendant together with consent to access the premises between 8 August 2014 and 12 August 2014. This amendment was not ultimately opposed by the respondent and I will proceed on the basis that it is this event or series of events which constitutes the alleged effectual last step in the proceeding for the purposes of determining the application.
- [3]The plaintiff’s claim concerns painting and decorating services performed by the plaintiff for the first defendant at The Bolands Centre, Cairns in the period 28 August 2008 to 14 April 2009. The plaintiff also claims against the second defendant in respect of an agreement for provision of painting and decorating services performed on a residence in Helensvale between 9 March 2009 and 16 March 2009. The plaintiff also claims against the third defendant in respect of an agreement for provision of painting and decorating services performed at a residence at Edge Hill between 14 January 2009 and 18 January 2009.
- [4]The contract giving rise to the claim against the first defendant is pleaded in the amended statement of claim as being partly oral and partly in writing. It is admitted by the defendant in paragraph 5 of the amended defence and counterclaim that the contract between the plaintiff and the first defendant relating to the painting and decorating of The Bolands Centre was reduced to writing. The claims against the second and third defendants are solely oral and will be extremely difficult to prove. However, the claim against the first defendant is one which involves a reference to the surrounding documentation. It ultimately relates to both unpaid invoices and a loss of estimated profit had the contract not been terminated.
- [5]It is in this context that the engagement of a quantity surveyor is a relevant matter from the perspective of the plaintiff. It is also a relevant matter from the perspective of the first defendant because the first defendant counterclaims for $146,417.54 by way of an overpayment and the basis for this involves a valuation of the work for which the plaintiff was paid pursuant to the contract between the plaintiff and the first defendant.
- [6]Relevantly, rule 389 of the UCPR provides, “If no step has been taken in a proceeding for 2 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.”
- [7]It is significant that the alleged last step of engaging the quantity surveyor by the plaintiff and obtaining consent to access the Bolands Centre, which is said to have been completed on 12 August 2014, did not result in the quantity surveyor actually accessing the Bolands Centre. The opportunity of obtaining access was not taken advantage of and on 30 September 2014, the defendants’ solicitor took the point that the two year period had elapsed pursuant to rule 389.
- [8]The first matter that I need to consider is whether there has been a step taken for the purposes of rule 389 in the engaging of the quantity surveyor and the seeking and obtaining access to The Bolands Centre which is said to have been completed on 12 August 2014.
- [9]The question of what constitutes a step in the action was recently considered by the Court of Appeal in Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272. In writing the leading judgment, Peter Lyons J analysed the relevant authorities in terms of what constituted a step. At para [47] – [48], his Honour noted that in Mundy v The Butterfly Company Limited [1932] 2 Ch 227 “a letter calling for compliance with an order for delivery of an affidavit of documents was held not to be a proceeding in the action.” His Honour also noted the observations of McPherson J in Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd.R 592.
- [10]In that case McPherson J observed at 594:
“I am, however, unable to accept that acts done in the recesses of a solicitor’s office partake of the character of a proceeding simply because they may, from the standpoint of the party for whom the solicitor is acting, be supposed to carry the action forward. That is particularly so where the act in question has, so far as the other party or the court is aware, no readily discernible impact on the progress of the action.”
- [11]In Artahs, Peter Lyons J concluded at [48] that a step in the action could be one that is not required by the rules, and he gave the example of the filing and service of a reply or a subsequent pleading not required by the rules, which, in his view, would still amount to a step in the action. His views in this regard were endorsed by the other members of the Court of Appeal, McMurdo P and Fraser JA.
- [12]Having regard to the authorities quoted above, the engaging of the quantity surveyor and the making of arrangements for the quantity surveyor to access the Bolands Centre do not, in my view, amount to a step taken in the proceeding pursuant to rule 389 of the UCPR. It would be a different matter had the quantity surveyor in fact accessed the premises and then prepared a report which was served upon the defendants. The actions which were undertaken are akin to the preparation of a pleading, for example, but not the actual filing and serving of it, to use the analogy of Peter Lyons J in Artahs. On this basis, the first ground of the amended application fails.
- [13]I now need to proceed to consider whether the plaintiff should have leave to proceed pursuant to rule 389 of the UCPR. A number of factors need to be considered in the exercise of my discretion in this regard. These factors were commented upon and analysed by Atkinson J in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178. At para [2], her Honour noted factors which needed to be taken into account in determining whether the interests of justice require a case to be dismissed. On behalf of the defendants, Mr McKinstry has helpfully conceded that only three arise for serious consideration on the facts before me. These are, firstly, what prospects the plaintiff has of success in the action, secondly, whether there is a satisfactory explanation for the delay; and, thirdly, whether or not the delay resulted in prejudice to the defendants leading to an inability to ensure a fair trial.
- [14]I can deal shortly with the second and third matters. There has simply been no satisfactory explanation for the delay in the material of the plaintiff. Conversely, the defendants cannot point to any prejudice occasioned by the delay which leads to an inability to ensure a fair trial. The prospects of success of the plaintiff in the action is more problematic. It is difficult to assess the prospects of success of the plaintiff in respect of her claim against the first defendant.
- [15]The prospects of success of the plaintiff in her claims against the second and third defendant are, in my view, poor. In respect of the second defendant, there was merely an oral agreement to paint a residence, which was then owned by the second defendant, and the claim is pleaded in terms that the second defendant denied the plaintiff the opportunity to complete work from which it would have derived a profit estimated in the sum of $10,000. This claim appears almost fanciful. In respect of the claim against the third defendant, there is again a mere oral contract. It is pleaded on the basis that the plaintiff would be paid a reasonable price for the work done, and a figure of $25,590 is nominated as a reasonable price. Although this claim is stronger than the claim against the second Defendant, it is nonetheless a claim in respect of which I am of the view that the plaintiff’s prospects are poor.
- [16]Rule 389 is couched in terms of “a proceeding” and there is before me but one proceeding, although, there are three separate claims involving three separate defendants. The relevant matters identified by Atkinson J in Tyler relevantly refer to the plaintiff’s prospects of success in the “action”. It is therefore not appropriate, in my view, to distinguish between the respective causes of action against each of the defendants in making the requisite assessment, ignoring the fact that the strongest cause of action is the one which is the most relevant to the determination of this particular issue.
- [17]Essentially, there is a significant contest between the assertion of the plaintiff that the first defendant both underpaid the plaintiff and, further, wrongfully terminated the contract, and the counter-claim of the first defendant that it has significantly overpaid the plaintiff pursuant to the contract. The prospects of success for the plaintiff in these circumstances cannot, on the material before me, be viewed as anything other than reasonable. There is insufficient evidence before me to conclude that they are either good or poor. On balancing these three issues, together with the other considerations set out by Atkinson J in Tyler, I am of the view that, in circumstances where the contracts giving rise to the plaintiff’s cause of action were entered into allegedly in 2008 and 2009, the litigation was commenced promptly, where there has been no disobedience to court orders or directions and where the litigation has not been characterised by long periods of delay, where both the plaintiff and the defendants have been reluctant in recent times to progress the claims and the counter-claim, where there is no evidence impecuniosity on the part of the plaintiff, where the counter-claim would remain on foot, even if I struck out the plaintiff’s claim, where the litigation is now ready for listing for trial, subject to the serving of the quantity surveyors report, the pleadings having been closed, disclosure having been completed, the interests of justice do not require the plaintiff’s case against the defendants to be dismissed.
- [18]I, therefore, order that the proceeding be permitted to continue, and for the avoidance of doubt that includes the counterclaim, notwithstanding that no step has been taken in the proceeding for two years or more.
- [19]I order that the applicant pay the respondents’ costs of an incidental to the application on the standard basis.