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Lastavec & Anor v Effective Security Pty Ltd & Anor[2015] QDC 22

Lastavec & Anor v Effective Security Pty Ltd & Anor[2015] QDC 22

DISTRICT COURT OF QUEENSLAND

CITATION:

Lastavec & Anor v Effective Security Pty Ltd & Anor [2015] QDC 22

PARTIES:

PAUL LASTAVEC

(first applicant)

AND

MARIA TOPIC

(second applicant)

v

EFFECTIVE SECURITY PTY LTD ACN 079 315 549

(first respondent)

AND

STEVEN FRANCIS LASTAVEC

(second respondent)

FILE NO/S:

13/10

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

12 February 2015 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2015

JUDGE:

Samios DCJ

ORDER:

  1. Leave to the applicants to proceed with the amended originating application filed 01/06/2011.
  2. Order as per paragraphs 2, 4, 5, 6 and 7 of the amended originating application filed 01/06/2011.
  3. Costs reserved.
  4. Liberty to apply on 3 days’ notice the one to the other.

CATCHWORDS:

PRACTICE – LEAVE TO PROCEED – DIRECTIONS – ORIGINATING APPLICATION – where the parties to the proceeding were in a partnership – where the terms of the partnership were disputed – where the applicants originally filed an originating application seeking the appointment of a statutory trustee for the sale of land – where the applicants subsequently filed an amended originating application which deleted the statutory trustee for the sale of land orders and sought a declaration that the partnership between the applicants and the respondents had been dissolved as well as orders about how the parties could finalise their relationship – where no step was taken in the proceedings for about two years – whether the applicants should be given leave to proceed with their amended originating application

Legislation

Uniform Civil Procedure Rules 1999 (Qld) r 464(3)

COUNSEL:

Mr D McHenry, solicitor, for the applicants

Ms B O'Brien, counsel, for the respondents

SOLICITORS:

Dave McHenry & Associates, Lawyers

Coastal Law & Conveyancing for the respondents

  1. [1]
    HIS HONOUR: I have before me an application by which the applicants by which the applicants seek the matter to be listed for directions pursuant to rule 464, subrule (3) of the Uniform Civil Procedure Rules at a time and date convenient to the court. The application appears to have been filed in Gladstone and has been transferred to Brisbane. The parties recognise a difficulty in proceeding today because it is accepted by the applicants’ solicitor, Mr McHenry, that no step has been taken in the proceedings for two years from the time the last step was taken.
  1. [2]
    The proceedings commenced by way of an originating application filed in Gladstone court on the 14th of May 2010. The applicants sought an order that statutory trustees for sale of land situated at 105 Stowe Road, Calliope be appointed. I accept that the parties to the application were in a partnership. However, there is a dispute as to the terms of that partnership. The first applicant is the father of the second respondent. The second applicant is the first applicant’s partner. And I take it the first respondent is the second respondent’s company. An affidavit that was filed in May 2010 by the first applicant deposes to there being differences arising between himself and his son, and his son had recently made attempts to sell the subject property.
  1. [3]
    The applicant swears to there being a partnership for the acquisition of the property and the subsequent joint venture relating to its subdivision. I have been informed and I am prepared to accept this from Mr McHenry that the property has been sold. Therefore, it would seem to be the case that what was originally sought to force the sale of the property is no longer necessary. Consequently, an amended originating application was filed on 1 June 2011. This deleted the statutory trustee for sale orders and in its place sought a declaration that the partnership was dissolved on 19 March 2010 and other orders hoping to bring the parties together with some financial information so that they can reach agreement how to finalise their relationship. Included in these orders in the amended originating application is that there be mediation.
  1. [4]
    However, the parties, as I have said, have brought to my attention that there has been no step taken in the proceedings since that amended originating application and supporting affidavit was filed on 1 June 2011. It seems to me no good purpose would be served adjourning the proceedings today with a view to the applicants filing an application for leave to proceed supported by affidavit. That is because what seems to be in dispute is now very much reduced because the property has been sold and it would incur both parties considerable costs to proceed to such an application when to my mind little can be said to oppose leave being given for the applicants to proceed.
  1. [5]
    In addition, I would take into account in that assessment the fact that the parties are related and that it is understandable that the applicants would not seek to move in such a way as to be incurring legal costs and other costs for all parties concerned. In addition, the orders proposed in the amended originating application in paragraphs 2, 4, 5, 6, and 7 would seem to be a desirable way of trying to have the parties get together and resolve the dispute.
  1. [6]
    I am minded that the authorities refer to a reasonable explanation for the delay in taking a step. In my view, it is implicit in the matters I have mentioned, namely, the relationship between the parties, the fact the property has now been sold, and the desire not to, obviously, incur costs and try to resolve it amicably between each other. As far as prejudice is concerned, while there may be prejudice from the delay itself I do not think that necessarily leads to a refusal of leave to proceed. The respondents have had the benefit of the money, it would seem.
  1. [7]
    And if it turns out that the money has been disposed of in some way then the applicants might have to take advice about commencing a fresh proceeding as the partnership that has dissolved, seeking a simple sum of money. It may be that the court in those circumstances would order discovery before action so that the applicants would be aware of the financial circumstances of the sale. Such orders, in my experience, can be made.
  1. [8]
    Making all those sorts of orders costs money. It also creates delay, and it seems to me that on balance in this case before me today I should give the applicants leave to proceed with the amended originating application filed 1 June 2011 so that is an order I make. Leave to the applicants to proceed with the amended originating application filed 1 June 2011. I also consider that orders should be made as per paragraphs 2, 4, 5, 6, and 7 of the amended originating application filed 1 June 2011. To my mind, these will hopefully expedite the matter and bring the parties together so that they have a vehicle by which they can resolve the dispute. Therefore, the order I make is as per paragraphs 2, 4, 5, 6, and 7 of the amended originating application filed 1 June 2011. I’ll hear the parties on the question of costs or any other orders that Mr McHenry or Ms O'Brien say I should make. Mr McHenry, are there any other orders or what do you say about costs?
  1. [9]
    MR McHENRY: I’d simply ask costs be reserved if I may, please, your Honour.
  1. [10]
    HIS HONOUR: All right. Ms O'Brien?
  1. [11]
    MS O'BRIEN: That seems appropriate, your Honour. Or otherwise no order as to costs.
  1. [12]
    HIS HONOUR: Yes. I consider in all the circumstances the appropriate outcome is to order that costs be reserved, so costs are reserved. I’ll give the parties liberty to apply on three days’ notice the one to the other. All right. Nothing further, Mr McHenry, Ms O'Brien.
  1. [13]
    MS O'BRIEN: No. Thank you, your Honour.
  1. [14]
    MR McHENRY: No. Thank you, your Honour.
  2. [15]
    HIS HONOUR: No. Well, thank you for your help.
  1. [16]
    MS O'BRIEN: Thank you.
  1. [17]
    HIS HONOUR: I’ll just return all these documents in the right place. No need to wait because I have another matter to finalise.
  1. [18]
    MR McHENRY: Thank you, your Honour. May I be excused?
  1. [19]
    MS O'BRIEN: Thank you, your Honour.
  1. [20]
    HIS HONOUR: Yes. You’re excused. Thank you.
Close

Editorial Notes

  • Published Case Name:

    Lastavec & Anor v Effective Security Pty Ltd & Anor

  • Shortened Case Name:

    Lastavec & Anor v Effective Security Pty Ltd & Anor

  • MNC:

    [2015] QDC 22

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    12 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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