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Tremco Pty. Ltd. v Kadoe Pty. Ltd.[2015] QDC 24

Tremco Pty. Ltd. v Kadoe Pty. Ltd.[2015] QDC 24

DISTRICT COURT OF QUEENSLAND

CITATION:

Tremco Pty Ltd v Kadoe Pty Ltd [2015] QDC 24

PARTIES:

TREMCO PTY LTD ACN 000 024 064

(plaintiff)

v

KADOE PTY LTD ACN 135 978 504

(defendant)

FILE NO/S:

2152/11

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 February 2015 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2015

JUDGE:

Samios DCJ

ORDER:

  1. Application dismissed.
  2. The defendant pay the plaintiff’s costs of the application on the indemnity basis.

CATCHWORDS:

PRACTICE – ADJOURNMENT – JOINDER OF PARTIES – NON-COMPLIANCE WITH ORDER – TRIAL – where the plaintiff commenced proceedings against the defendant for alleged non-payment of money for the supply of goods – where the defendant raised the issue of joinder of parties to the proceedings – where the court at callover listed the matter for trial and ordered a deadline by which the defendant could join any further parties to the proceedings – where the defendant did not join any further parties to the proceedings by the deadline – where the defendant applies to the court on the eve of trial for an adjournment of the trial and for the joinder of a second defendant to the proceedings – whether the defendant’s application for adjournment of the trial and for joinder of a second defendant to the proceedings should be allowed

COUNSEL:

Mr B van de Beld, counsel, for the plaintiff

Ms C Thomson, self-represented, on behalf of the defendant

SOLICITORS:

Mills Oakley Lawyers for the plaintiff

The defendant was not represented by solicitors

  1. [1]
    HIS HONOUR: Proceedings between the plaintiff and the defendant commenced in this court by a statement of claim, filed on the 17th of June 2011. Since then amended pleadings have been exchanged between the parties. There has been a first further amended statement of claim, filed on the 6th of February 2013, and a first further amended defence, filed on the 30th of April 2013.
  1. [2]
    The claim the plaintiff makes against the defendant is, in essence, whether the defendant ordered and received certain goods from the plaintiff, and whether the defendant therefore owes the plaintiff the sum of $146,410.28.
  1. [3]
    The defendant has admitted it is in the business of supplying concrete waterproofing and polishing products, and it entered into a contract with the plaintiff for the supply of its products. The allegation is that the plaintiff provided its products to the defendant, I should say, between about October 2009 and about December 2010.
  1. [4]
    There was a callover in this court in August 2014. At the callover, it is accepted, the defendant raised an issue in relation to needing to join one or more further parties to the proceedings. In response, therefore, the court ordered that any application to do so was required to be filed by 26 September 2014. The defendant was reminded between 24 August 2014 and 25 September 2014 that if it wished to join further parties, it needed to do so by 26 September 2014.
  1. [5]
    Despite the reminder and the order that has been made at the callover, no such application has been filed by the defendant, except that yesterday, 12 February 2015, the defendant gave notice that it would be seeking to adjourn the trial, which is set down to commence on Monday, 16 February 2015, and that it would seek, among other things, to join PWA Financial Group Pty Ltd as a second defendant.
  1. [6]
    The application for the adjournment of the trial and the joinder of PWA is opposed by the plaintiff. The plaintiff’s position is that it has no cause of action, as far as it is concerned, against PWA. It sees no basis for this company to be joined to the proceedings by the plaintiff. The application I have before me in fact seeks an order that PWA be added as a second defendant to the proceedings, rather than be joined as a third party, so that the defendant may make some claim against it.
  1. [7]
    It does appear, from the affidavit material in support of the application to adjourn the trial and for the other orders – I am referring to the affidavit of Mrs Thomson – that there has been a dispute between Mr and Mrs Thomson and, of course, Kadoe Pty Ltd and the accountants PWA. However, this dispute seems to have reached a head, in that there are proceedings in the Supreme Court claiming damages for professional negligence against PWA.
  1. [8]
    Professional indemnity solicitors were involved, from what I can recall of Mrs Thomson’s affidavit, in 2011. Therefore, I pause here to say:  despite the dispute between Mr and Mrs Thomson and Kadoe Pty Ltd and PWA, no step seems to have been taken in the proceedings that are on foot in the District Court to join PWA, until the application is filed by leave today.
  1. [9]
    It could be additionally said on behalf of the plaintiff’s position that whether or not Kadoe Pty Ltd was a trustee or a trust, or whether that trust was validly established, is not an issue in the proceedings between the parties in this District Court action. There is no issue to be determined at a trial in the District Court action about whether or not the trust existed, or whether it was valid or not, or whether PWA was to blame or not.
  1. [10]
    I would again pause to say that it is too late to be seeking, on the eve of the trial, to join PWA to these proceedings in the District Court, and to raise issues about the validity of the trust. I may be repeating myself, but nothing Mrs Thomson has sworn to or submitted to me today persuades me that PWA is a necessary party, or that it is desirable, just and convenient for it to be joined to these District Court proceedings. There is nothing to be adjudicated with respect to PWA and the parties to the District Court proceedings.
  1. [11]
    It may be that PWA breached some duty of care to Mr and Mrs Thomson and Kadoe Pty Ltd, but that is a matter between them. It is not something that can be brought into the dispute between the plaintiff and the defendant to these District Court proceedings. Even if I was wrong about that, I repeat what I’ve just said earlier, which is that it is too late to seek to join another party to these proceedings, particularly when it is, to my mind, the case that there is no need to do so and there is no relief that is relevant to be given to any party about the concerns that Mr and Mrs Thomson and Kadoe Pty Ltd have about PWA’s performance as accountants, with respect to the creation of the trust.
  1. [12]
    In addition, the defendant has been given an opportunity by the court, after the callover in August 2014, to bring an application for the joinder of any additional party. It has failed to do so. Therefore, I come to the view that the trial set down to start on Monday, 16 February 2015 should proceed. I refuse the application to adjourn the trial. I also refuse the applications that seek to have PWA joined as a party to the proceedings. Therefore, in total, I dismiss the application that is before me.
  1. [13]
    Regarding the issue of costs of this application, clearly, costs should follow the event. However, the question that arises is whether those costs should be on the indemnity basis. I’ve come to the view that the defendant, or those representing the defendant, were aware in 2012 as to issues regarding the involvement of PWA, or whether PWA caused losses to them, and were also on notice at the callover in August 2014 to bring any relevant application, and no application has been brought until the very last moment.
  1. [14]
    The argument is that relevant information has not been available to the defendant to be able to bring a timely application. However, in my view, the information has not added anything to the fact that this was always going to be a doomed application with respect to the joinder of PWA to the proceedings.
  1. [15]
    Further, clearly, on the eve of a trial, it was clear that those matters, not having been attended to, would not be acceded to without a very certain case being advanced by the defendant, which it was not. For those reasons, I order the defendant to pay the plaintiff’s costs of the application on the indemnity basis. Yes. Thank you.
  1. [16]
    MR VAN DE BELD: Thank you, your Honour.
  1. [17]
    HIS HONOUR: Yes.
Close

Editorial Notes

  • Published Case Name:

    Tremco Pty. Ltd. v Kadoe Pty. Ltd.

  • Shortened Case Name:

    Tremco Pty. Ltd. v Kadoe Pty. Ltd.

  • MNC:

    [2015] QDC 24

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    13 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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