Goldsmith v AMP Life Ltd[2023] QSC 15

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The Parties to this application have been involved for some time in a series of disputes arising out of the former lease of business premises that were governed by the Retail Shop Leases Act 1994 (Qld) (‘RSLA’).
2. [2]
   The Plaintiffs were the directors and proprietors of a company named Gold Tipp (News) Pty Ltd (‘Goldtip’). From about 11 October 2004 to 28 March 2012, Goldtip operated a newsagency at the Mount Ommaney Shopping Centre (‘Centre’) under a series of retail shop leases. The lessor was the Defendant, AMP Life Ltd (AMP), who owned and operated the Centre.
3. [3]
   On 28 June 2022, the Plaintiffs commenced the present proceeding by filing a claim seeking reasonable compensation and/or damages for losses resulting from asserted misrepresentations and unconscionable conduct on the part of the Defendant during lease negotiations, the subsequent unlawful termination by the Defendant of the lease and the alleged consequent failure and winding up of Goldtip.
4. [4]
   By this application, the Defendant applies to have the Plaintiffs’ claim set aside or stayed on the basis that the proceeding is an abuse of process. It contends the claim discloses no reasonable cause of action, as the relevant limitation period for the commencement of proceedings has expired and the claim is thus statute barred (‘Limitation Point’). It further contends that the Plaintiffs’ claim proceeds on a basis that is contrary to previous decision of the Court of Appeal in respect of earlier proceedings between the Parties, in which the Court authoritatively dealt with the Limitation Point.  
5. [5]
   Moreover, the Defendant says the present claim is in all material respects, the same as a previous claim dismissed by Wilson J on 30 May 2022, in which the Plaintiffs had accepted the relevant limitation period had expired.
6. [6]
   Whether the present proceeding does amount to an abuse of process, and the claim ought to therefore be stayed or set aside, or other relief ought to be granted, requires a close examination of the various previous proceedings and the position previously taken by the Plaintiffs on the Limitation Point, and an analysis of what was actually decided by the Court of Appeal.

Factual background

7. [7]
   In 2004, Goldtip purchased a newsagency and discount bookshop business from Maladown Pty Ltd (‘Maladown’). The business was known as Mt Ommaney News. It occupied and operated from leased premises within the Centre (‘First Shop’).
8. [8]
   As part of the acquisition of the business, on 11 October 2004, Goldtip was assigned the registered lease (‘First Lease’) that was then in place between the Defendant and Maladown in respect of the First Shop.
9. [9]
   The First Lease between Goldtip and the Defendant expired on 10 July 2006. Thereafter, the First Lease was purportedly extended on two occasions by amendments made to the expiry date of the lease (‘Amended Leases’). The Amended Leases were not registered. Following the expiry of the Amended Leases, Goldtip continued to occupy the First Shop, with the approval of the Defendant, on an unregistered holding over until 3 February 2010.
10. [10]
    In June 2008, AMP commenced a major renovation and expansion of the Centre (‘Works’). The Works took two years to complete and cost approximately $150 million. As part of, and during, the final stage of the Works, Goldtip was required to permanently relocate its newsagency business to new premises within the Centre (‘Second Shop’) and to enter into a new lease (‘Second Lease’). Goldtip conducted its business from the Second Shop, under the terms of the Second Lease, from 4 February 2010.
11. [11]
    The Parties entered into the Second Lease following a series of negotiations, which occurred during the currency of the Works, between September 2008 and about June 2009.
12. [12]
    The Plaintiffs allege that during these negotiations, Goldtip informed the Defendant that the Defendant’s proposals were for a shop that was larger than required, at a level of rent not indicative of the market rate for a shopping centre newsagency in Brisbane and, if accepted, might endanger the commercial viability of Goldtip’s business.
13. [13]
    The Plaintiffs further allege that the Defendant made false or misleading representations to Goldtip during the Second Lease negotiations. In particular, the Plaintiffs claim that the Defendant, though one of its agents, a Mr Nagel, falsely represented that it held signed and unconditional offers from other newsagents, on terms more advantageous to the Defendant than those proposed to Goldtip, and that unless Goldtip accepted the Defendant’s proposed terms, Goldtip would be replaced as the Centre’s newsagent (‘Misrepresentations’).
14. [14]
    The Plaintiffs assert that Goldtip signed the Second Lease, induced by and acting in reliance upon the Misrepresentations.  The Plaintiffs’ further assert Goldtip suffered detriment as a result of entering into the Second Lease. The Plaintiffs claim Goldtip spent some $430,000 fitting out the Second Shop and were required to pay considerably higher rent under the Second Lease. They contend the costs and expenses associated with the Second Lease and the move to the Second Shop contributed significantly to Goldtip’s eventual demise.
15. [15]
    Almost as soon as it had begun trading from the Second Shop, Goldtip encountered financial difficulties. The Plaintiffs say that its business sales and profit did not increase in proportion to the increased rent it was required to pay. Consequently, Goldtip fell into arrears with its rent payments.
16. [16]
    Goldtip’s financial difficulties were such that on 14 December 2011, the company was placed into voluntary administration. Subsequently, on 27 February 2012, Goldtip’s creditors, save for the Defendant, voted for Goldtip to continue trading under a Deed of Company Arrangement (‘DOCA’).   It was hoped that Goldtip would be able to trade out of its financial difficulties or be sold. However, neither hope came to fruition.
17. [17]
    On 28 March 2012, the Defendant terminated the Second Lease, causing the DOCA to end. On 30 March 2012, Goldtip was placed into liquidation. Ultimately, the company was deregistered.
18. [18]
    On 22 November 2013, Goldtip (by its liquidators) entered into a Deed of Assignment with the Plaintiffs, pursuant to which the right to take action against the Defendant is said to have been assigned to the Plaintiffs. It is on this basis that they sue the Defendant.

The present proceeding

19. [19]
    By the claim filed on 28 June 2022, the Plaintiffs claim reasonable compensation and/or damages for alleged losses to Goldtip, said to result from its entry into the Second Lease on uncommercial terms brought about because of the Defendant’s Misrepresentations and alleged unconscionable conduct. The Plaintiffs also seek reasonable compensation and/or damages for losses resulting from the unlawful termination of Goldtip’s lease and Goldtip’s subsequent winding up and liquidation, each of which are alleged to have been a consequence of the Defendant’s Misrepresentations and unconscionable conduct.
20. [20]
    To date, the Defendant has not filed a notice of intention to defend the proceedings. It has, however, sought leave to file and proceed upon the present application, by which it seeks that the claim be set aside or the proceeding stayed, either pursuant to rr 16(e), (g) or (i) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) or in the exercise of the Court’s inherent jurisdiction to prevent an abuse of its processes. Alternatively, the Defendant seeks that the Plaintiffs’ statement of claim be struck out, without leave to replead, pursuant to rr 171(1) (a), (b), (d) and/or (e) of the UCPR or in the exercise of the Court’s inherent jurisdiction to prevent an abuse of its processes.

The previous proceedings

The first District Court proceeding

21. [21]
    The Plaintiffs commenced the first District Court proceeding by a claim filed on 2 February 2016.
22. [22]
    By the terms of a further amended claim, filed 9 May 2017, the Plaintiffs claimed compensatory damages for loss of profits due to alleged significant business disruption and for breach of implied terms of both the First Lease and the Second Lease, between 1 July 2008 and 27 March 2012. The claim covered the losses said to have been incurred as a result of the Works and their aftereffects. The Plaintiffs claimed the Defendant breached implied terms of the leases, arising underss 43(1)(b) and (c) of the RSLA, which entitled them to claim reasonable compensation for business disturbance. ^[1]The Plaintiffs further claimed the Defendant breached an express term of the leases, by which Goldtip was entitled to occupy and use the premises without interference.  Finally, the Plaintiffs claimed in the alternative that the impacts of the Works and its ongoing effects derogated from the grant under the Second Lease.
23. [23]
    The alleged loss and damage suffered by Goldtip was the significant disruption to trade of the business and a reduction in the profitability of the business.
24. [24]
    The Defendant denied the Plaintiffs were entitled to the relief sought on a number of bases, including that the Plaintiffs’ claim was statute barred because the relevant limitation period for the alleged breaches of contract under each of the First Lease and the Second Lease was six years and it had expired before the claim was filed. The Defendant also raised issues of standing and jurisdiction by way of defence.  Further, the Defendant brought its own counterclaim against the Plaintiffs, seeking to set-off outstanding rent, outgoings and other amounts that had not been paid by Goldtip under the terms of the Second Lease.
25. [25]
    In their further amended reply and answer, filed 12 November 2019, the Plaintiffs asserted that the six-year limitation period did not apply to any cause of action being pursued by the Plaintiffs because each cause of action was not one based on simple contract but on a speciality.  Therefore, they contended, the relevant limitation period was 12 years from the date the cause of action arose. The Plaintiffs also contended that the Defendant was not entitled to set-off any amounts in respect of the unpaid rent and other amounts as claimed.
26. [26]
    A trial of the matter took place before his Honour Judge Porter QC from 5 to 13 May 2020.
27. [27]
    His Honour dismissed each of the Plaintiffs’ claim and the Defendant’s counterclaim.^[2] In doing so, his Honour concluded that the Plaintiffs were entitled to reasonable compensation for disruption of Goldtip’s business as a result of the Works carried out during the time it occupied the First Shop, but not during the period it occupied the Second Shop. However, his Honour also found that the Defendant was entitled to an equitable set-off of the compensation claim by reason of the amounts owed to it by Goldtip under the Second Lease. As his Honour determined the amount of the Defendant’s set-off claim exceeded the amount of compensation payable to the Plaintiffs, the claim and counterclaim were each dismissed.
28. [28]
    In terms of the Limitation Point, Porter DCJ referred to the terms of s 10 of the Limitation of Actions Act 1974 (Qld), which relevantly provides:

10Actions of contract and tort and certain other actions

3. (1)
   The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—

1. (a)
   subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;

2. (b)
   an action to enforce a recognisance;

3. (c)
   an action to enforce an award, where the agreement to arbitrate is not by an instrument under seal;

4. (d)
   an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.

…

3. (3)
   An action upon a specialty shall not be brought after the expiration of 12 years from the date on which the cause of action accrued.

…

29. [29]
    His Honour then described the Plaintiffs’ argument on the Limitation Point as follows:^[3]

1. [219]
   The plaintiffs do not dispute the factual propositions in the second limb of AMP’s contention. However, they contend that the cause of action under s. 43(1) is an action upon a specialty, and therefore the plaintiffs had 12 years to bring the proceedings. The plaintiffs accept that if their specialty argument fails, AMP is otherwise entitled to succeed on its limitation defence.

1. [220]
   The plaintiffs’ argument is beguilingly simple.  They contend:

1. (a)
   A specialty includes an action upon a covenant in a deed;

2. (b)
   Although the first lease was not in the form of a deed, it was a registered on the real property register thus attracting s. 176 Land Title Act 1994 (Qld) which provides that a ‘registered instrument operates as a deed’;

3. (c)
   Section 43(1) is incorporated into the first lease by law;

4. (d)
   Thus a claim under s. 43(1) is an action upon a specialty.

1. [221]
   The defendant responds to this argument by contending that:

1. (a)
   No extension of the first lease was ever registered;

2. (b)
   Accordingly, after the expiry of the first lease term, Gold Tip’s tenure was unregistered;

3. (c)
   From the expiry of the second extension until the move to the new shop under the new lease, Gold Tip’s tenure was unregistered and comprised holding over under the terms of the old lease but under a new and separate tenancy from that created by the registered first lease.    AMP relied on Hamilton v Porta [1958] VR 247 at 250; and

4. (d)
   Thus the term was not implied into a registered lease and did not obtain the benefit of s. 176.

30. [30]
    After considering the terms of ss 18, 42 and 43 of the RSLA and relevant clauses of the First Lease, his Honour concluded:^[4]

1. [228]
   I suspect that there is more to this argument than meets the eye, but on the submissions put before me, it seems correct that the terms of the tenancy at will are (literally) contained in the registered lease, that those terms take effect as a deed between the parties, given the deeming effect of s. 176, and further, that terms incorporated into that lease also thereby take effect as covenants.

1. [229]
   I did not think that Ms Schneider’s arguments led to a different conclusion. She focused on establishing that on the proper construction of the first lease, the tenancy at will was a separate tenancy from the indefeasible tenancy created by the registration of the first lease. That proposition seemed correct. However, that argument does not answer Mr Ferret’s argument. His argument is unconcerned with whether the tenancy at will arose as a new lease or a continuation of the first lease. It relies on the fact that the terms of the tenancy at will are contained in a registered instrument.

1. [230]
   With some trepidation, I conclude that the plaintiffs’ argument is right and that the terms of s. 43(1) took effect as covenants. The action on s. 43(1) is therefore an action on a specialty and subject to a 12 year limitation period. AMP’s limitations defence therefore fails.

31. [31]
    Fundamental to his Honour’s reasoning was the conclusion that the terms of the tenancy at will were contained in the registered First Lease.^[5]
32. [32]
    The Plaintiffs applied to the Court of Appeal for leave to appeal Porter DCJ’s decision. The Defendant filed a notice of contention in respect of his Honour’s conclusion on the Limitation Point.

The Court of Appeal

33. [33]
    The Court of Appeal refused the Plaintiffs’ application for leave to appeal.^[6]
34. [34]
    In his judgment, Morrison JA summarised the Limitation Point raised by the notice of contention as follows:^[7]

1. [61]
   The respondent’s notice of contention urged that the decision below could be affirmed on the basis that the applicants’ claim (at least in part) was statute barred under s 10(1) Limitation of Actions Act 1974. The applicants accepted that if the limitation period was six years the claim was out of time. They contended that the claim was an action on a specialty and therefore the time period was 12 years.

1. [62]
   Mr Ferrett QC contended that the effect of cl 2.3 of the first lease was that the terms of tenancy at will were specified by and contained in the registered first lease. This was said to follow because of the words ‘is on the same terms as this Lease’ in cl 2.3. The argument then continued, that because of s 42(1) Retail Shop Leases Act 1994, which specifies that a retail shop lease is taken to include s 43, s 43(1) was deemed to be included in those terms of the extended lease. The argument was then that the term implied by s 43(1) also obtained the benefit of the deeming provision in s 176 Land Title Act 1994. This had the effect, it was said, that the claim for compensation under s 43(1) Retail Shop Leases Act 1994 was a claim made under a deed, and therefore an action on a specialty for which the limitation period was 12 years, and not six years.

35. [35]
    It is to be noted that, because of the findings by the trial judge, the issue raised on appeal by the notice of contention only concerned the First Lease.
36. [36]
    His Honour noted the Limitation Point argument raised by the Plaintiffs depended upon acceptance that the Amended Leases were simply extensions of the registered First Lease and not new leases.^[8]
37. [37]
    Morrison JA rejected that argument. His Honour concluded that the effect of the two amendments to the First Lease created new leases, neither of which was registered in accordance with the Land Title Act 1994 (Qld) (‘LTA’). His Honour observed:^[9]

1. [78]
   The effect of s 67 LandTitle Act 1994 is that a registered lease can be amended but only if the amending instrument is itself registered, and that occurs before the lease term ends. Neither of those things happened to Gold Tip’s lease. The consequence is that the registered lease expired on 10 July 2006. Thereafter, though the expiry date of the tenancy was extended (in the first case by 17 months, from 10 July 2006 to 10 December 2007, and in the second case by just over six months from 10 December 2007 to 30 June 2008), those were dates under the new lease in each case. In neither case was the extended lease a registered lease. Gold Tip’s holding over was under an unregistered lease.

1. [79]
   Following the end of the last amended expiry date, which on any view ended on 30 June 2008, Gold Tip was holding over pursuant to cll 2.2 and 2.3. But those clauses as they stood at 1 July 2008 (the first day of the holding over) were clauses in an unregistered lease.

1. [80]
   With that in mind one can return to the terms of cl 2.2. It provides that “If the Lessee continues to occupy the Premises after the Expiry Date” with the lessor’s approval, then “it does so under a tenancy for a fixed term of one month and then from month to month”. Clause 2.2 does not, of itself, give an entitlement to hold over. Any lawful holding over can only occur with the lessor’s approval. All cl 2.2 does is to provide that if that is the case, then the tenant holds over on a monthly basis.

1. [81]
   Consideration of cl 2.3 as it stood on 1 July 2008 provides the source of the terms of the monthly tenancy. It provides that the monthly tenancy ‘is on the same terms as this Lease’, then specifying the continuing terms and amendments to terms. But when cl 2.3, as it stood on 1 July 2008, referred to ‘this Lease’ it was a reference to an unregistered lease.

1. [82]
   In my view, cl 2.2 plainly operates to create a new lease on and from 1 July 2008. That lease is only created under cl 2.2 if the lessee ‘continues to occupy the Premises after the Expiry Date with the Lessor’s approval’. In that event the tenancy is the monthly tenancy created by the phrase in cl 2.2, ‘a tenancy for a fixed term of one month’. That tenancy was one that could be terminated on one month’s notice by either party. Clause 2.3 then refers to the same monthly tenancy when it provides that that monthly tenancy ‘is on the same terms as this Lease’ with the modifications indicated. Clause 2.3(b) recognises that there were necessary changes ‘to make this Lease appropriate for a monthly tenancy’, and cl 2.3(c) contemplates that there might be changes required by the lessor as a condition of giving its approval. One such change was the inclusion of the additional words in cl 2.3(b) recognising rent reviews if the holding over continued after 1 July 2008.

1. [83]
   The contention advanced at the trial was that somehow cl 2.3, by providing that the lease was on the same terms as the registered lease, attracted to that lease the benefit of the deeming provisions in s 176 Land Title Act 1994. In my view it does no such thing. Section 176 Land Title Act 1994 simply provides that ‘[a] registered instrument operates as a deed.’ It says nothing about the status of an unregistered instrument except, by inference, an unregistered instrument does not have the deemed operation as a deed.

38. [38]
    The primary reason Morrison JA rejected the Plaintiffs’ argument was because when the holding over commenced on 1 July 2008, Goldtip had been occupying the premises under an unregistered lease and continued to do so until it entered into the Second Lease. However, his Honour gave a range of reasons for rejecting the Plaintiffs’ argument, which are set out in the following excerpt:^[10]

1. [86]
   I cannot accept that contention. There seem to me to be a number of considerable difficulties which confront it.

1. [87]
   Firstly, the fact is that the registered lease expired on 10 July 2006. The expiry date was amended in two steps to 30 June 2008, but neither of those amendment documents was registered. Under the Land Title Act 1994, s 67 provides that the only way a registered lease can be amended is by a registered instrument lodged before the registered lease expires. The consequence is that when the holding over commenced on 1 July 2008, Gold Tip had been occupying the premises under an unregistered lease, and continued to do so.

1. [88]
   Secondly, at the time the holding over commenced cl 2.2 had the effect of creating a new lease on a monthly basis. In turn, when cl 2.3 of the unregistered lease referred to the monthly tenancy being ‘on the same terms as this Lease’, it was referring to the unregistered lease and notthe registered lease.

1. [89]
   Thirdly, even if cl 2.3 could be construed as referring to the terms of the registered lease that expired on 10 July 2006, the clause simply served as an identification of the repository of the terms. It could not be construed as importing the benefits of s 176 Land Title Act 1994, because that section was not a term of the lease.  Section 176 Land Title Act 1994 simply operates to deem a registered document to operate as a deed. It does notimport any term into the lease.

1. [90]
   Fourthly, insofar as Gold Tip remained in possession of the premises that had been the subject of the first lease on a holding over basis, the source of its entitlement to do so did not lie in any provision of the registered lease. Rather, as clause 2.2 provides, the monthly tenancy is created ‘if the Lessee continues to occupy the Premises after the Expiry Date with the Lessor’s approval’. It is the agreement between the lessee and the lessor that provides the foundation upon which the lessee remains in possession on a monthly tenancy.

1. [91]
   Fifthly, nothing in s 43 Retail Shop Leases Act 1994 serves to import the deeming provisions of s 176 Land Title Act 1994. Section 42(1) Retail Shop Leases Act 1994 provides that a retail shop lease ‘is taken to include’ s 43. Section 43 in turn merely provides that certain conduct on the part of the lessor can give rise to a liability to pay the lessee reasonable compensation. Nothing in either section imports s 176 Land Title Act 1994.

1. [92]
   Sixthly, it is a curious notion that one by-product of being a registered document can be imported into a document which is not registered without something express to suggest that might be so. Further, the notion flies in the face of s 67 Land Title Act 1994, which permits a registered lease to be amended only by registered instruments lodged before the registered lease expires.

1. [93]
   In my respectful view, the learned trial judge’s conclusion that the action was an action on a specialty was in error. Having been commenced more than six years after the cause of action was complete, the claim for disruption under the first lease was statute barred.

1. [94]
   That being so, as Mr Ferrett QC frankly conceded in the course of argument, the applicants’ case is not maintainable.

Application for special leave

39. [39]
    On 16 March 2021, the Plaintiffs filed an application in the High Court of Australia, seeking special leave to appeal from the judgment of the Court of Appeal.
40. [40]
    On 5 August 2021, the High Court dismissed the application.^[11]

The second District Court proceeding

41. [41]
    On 18 March 2022, the Plaintiffs commenced a further proceeding in the District Court, seeking to set aside the first decision of Porter DCJ and obtain an order for a retrial on the basis that the trial was affected by actual fraud.
42. [42]
    On 24 May 2022, upon the Defendant’s application, his Honour Judge Barlow QC ordered that the Plaintiffs’ statement of claim be struck out and the claim permanently stayed.

The first Supreme Court proceeding

43. [43]
    The first Supreme Court proceeding was commenced by a claim filed on 23 March 2018. The same general factual basis as that alleged in the District Court proceeding underpinned the claim. However, this time, the Plaintiffs claimed reasonable compensation and/or damages for:

1. (a)
   losses due to unconscionable conduct and misrepresentation in breach of implied terms of the first and second leases;
2. (b)
   breach of contract;
3. (c)
   breach of statutory duty; and
4. (d)
   unlawful termination of the second lease.

44. [44]
    As with the allegations made in the present proceeding, the claim was premised upon the Misrepresentations said to have been made by the Defendant during the course of the negotiations for entry into the Second Lease. Unlike the District Court proceeding, it appears that the implied terms relied upon by the Plaintiffs were said to be implied by reason of s 43AA of the RSLA in respect of alleged false or misleading statements or misrepresentations made by the lessor, and s 46A of the RSLA in respect of the alleged unconscionable conduct engaged in by the lessor.^[12]
45. [45]
    Although the claim was filed in March 2018, the Plaintiffs did not take any steps to serve the claim on the Defendant until nearly four years later.
46. [46]
    Rule 24 of the UCPR provides for the duration and renewal of a claim. It states:

24Duration and renewal of claim

3. (1)
   A claim remains in force for 1 year starting on the day it is filed.

3. (2)
   If the claim has not been served on a Defendant and the registrar is satisfied that reasonable efforts have been made to serve the Defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.

3. (3)
   The claim may be renewed whether or not it is in force.

3. (4)
   However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed.

3. (5)
   Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.

3. (6)
   Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.

47. [47]
    Pursuant to r 24(2) of the UCPR, the Plaintiffs obtained ex parte renewals of the claim by order of the Registrar on 20 March 2019 and again 20 March 2020. On 31 March 2021 and 1 June 2021, further applications for renewal were refused by the Registrar. On 16 September 2021, an ex parte application for renewal pursuant to r 24 was heard by Daubney J. Mr Goldsmith appeared on his own behalf for the Plaintiffs.
48. [48]
    In written submissions relied upon by the Plaintiffs in support of their application, the following express submission was made:

1. [45]
   When the plaintiffss filed the Claim, it was shortly before their cause of action would become subject to the 6-year limitation period imposed by s 10(1) of the Limitation of Actions Act 1974 (Qld) (Limitations Act).

…

1. [62]
   The proceedings concern representations made by the First Defendant prior to the entry into a lease and the subsequent liquidation of the plaintiffs’ former business. The quantum of the Claim exceeds $2 million. The plaintiffs respectfully submit that to be denied the opportunity to pursue the matter in the circumstances that have led to the making of this application would constitute an injustice.

49. [49]
    During the hearing of the application, Mr Goldsmith made the following submission in response to a question raised by his Honour with respect to the relevant limitation period:

…Under the Retail Shop Leases Act there would be, normally, six years, which was why the – which was why the claim was filed when it was, which was just short of the- of the six-year limit...^[13]

50. [50]
    His Honour then raised whether the misleading and deceptive conduct claim had in fact already been dealt with by the proceeding in the District Court. In response, Mr Goldsmith explained the difference in these terms:^[14]

…the District Court claim was based on trading losses. And the Supreme Court action is based on capital losses…

51. [51]
    A further discussion then ensued regarding the District Court proceeding and the decision of the Court of Appeal.  In the course of that further exchange, Mr Goldsmith submitted:^[15]

What we argued in front of Judge Porter in the District Court was that the – the period of limitation being a registered lease, it’s a deed and therefore a speciality and…therefore, s 10(3) of the Limitation of Actions Act applies, which gives you twelve years.

52. [52]
    His Honour replied:^[16]

…that’s nonsense… that’s just patently wrong.

53. [53]
    Thereafter, the applicable limitation period was not further discussed and the exchange between Mr Goldsmith and his Honour moved on to the apparent deficiencies with the claim and statement of claim, with his Honour remarking:^[17]

…I mean, frankly, I’m tempted to refuse leave on the basis that the claim is nonsense. The only reason I wouldn’t do that is…because to do so…would deprive you of the limitation.

54. [54]
    Ultimately, his Honour allowed the application and ordered a further renewal of the claim for 12 months from 23 March 2021.  In the course of his Honour’s ex tempore reasons, his Honour stated:^[18]

In the circumstances that have been described to me by the Plaintiff, Mr Goldsmith, who appeared for himself, I am persuaded, but only just persuaded, that it is in the interest of justice to permit a further renewal of the claim.

The claim was filed to preserve the Plaintiff’s interests from the intervention of relevant limitation periods….

…

None of these matters give me any great confidence in the merits of the claim which the Plaintiffs say they wish to pursue in this court, but that point alone is not sufficient to persuade me that I should completely close the Plaintiffs out from even the prospect of pursuing remanent claims…

55. [55]
    On or about 25 February 2022, the Plaintiffs served the claim and a further amended statement of claim on the Defendant.
56. [56]
    On 29 April 2022, the Defendant applied to set aside the order of Daubney J. The premise of the application was the Plaintiffs’ apparent non-disclosure of material circumstances relevant to the exercise of his Honour’s discretion to allow a further renewal of the claim. The Defendant also sought to have the claim dismissed, as the Plaintiffs had not shown ‘another good reason to renew the claim’.^[19]
57. [57]
    The Defendant’s application was heard by Wilson J on 26 May 2022.
58. [58]
    On 30 May 2022, Wilson J gave judgment, allowing the application and ordering that the renewal of the claim on 16 September 2021 be set aside and that the proceeding be dismissed.^[20]
59. [59]
    The Plaintiffs did not appeal Wilson J’s orders of 30 May 2022.  Instead, on 28 June 2022, they commenced the present proceeding by filing a new claim together with a statement of claim.
60. [60]
    The Plaintiffs accept that the present claim is, in all material respects, indistinguishable from the previous claim dismissed by Wilson J.
61. [61]
    I will return to Wilson J’s dismissal of the previous claim later in these reasons.

Has the Court of Appeal determined the Limitation Point?

62. [62]
    The Defendant submits that the Limitation Point has already been decided against the Plaintiffs by the Court of Appeal.
63. [63]
    As outlined above, the Court of Appeal held that Porter DCJ erred in concluding that because of the operation of s 176 of the LTA, the Plaintiffs’ claim involved an action upon a speciality and thus the relevant limitation period was 12 years from the date the cause of action arose.
64. [64]
    Whilst the Defendant accepts that the Court of Appeal’s judgment regarding the Limitation Point concerned the First Lease, the Amended Leases and Goldtip’s unregistered holding over, the Defendant nevertheless submits that the reasons of Morrison JA contain an analysis and interpretation of the applicable provisions of the RSLA and the LTA that apply equally to the Second Lease, upon which the present claim is founded. The Defendant therefore submits that the issue as to whether the limitation period in the present proceeding is twelve or six years turns on a point of statutory interpretation that has been decided by the Court of Appeal.
65. [65]
    On that basis, the Defendant argues that the relevant limitation period is six years, and it has now expired. Consequently, the Defendant contends the Plaintiffs’ claim discloses no reasonable cause of action and therefore the statement of claim should be struck out and the proceedings should be permanently stayed or dismissed.
66. [66]
    I do not accept the Defendant’s submissions. In my view, the Court of Appeal did not decide the Limitation Point as the Defendant contends.
67. [67]
    Morrison JA, who gave the principal judgment for the Court, rejected the Plaintiffs’ argument because the Plaintiffs’ cause of action arose when Goldtip occupied the First Shop under the unregistered Amended Leases and then under an unregistered holding over. The absence of registration of the leases in question was the critical point that denied the application of s 176 of the LTA. The Limitation Point was decided against the Plaintiffs because each of the subsequent leases after, the expiry of the First Lease, were new, unregistered leases..
68. [68]
    In contrast, the present claim is premised on the Second Lease, which is asserted by the Plaintiffs to have been a registered lease. Accordingly, in my view, Morrison JA’s reasoning and conclusions, and the Court of Appeal’s decision, have not determined the Limitation Point for the purposes of the present claim.
69. [69]
    Nevertheless, the Defendant emphasises paragraph [91] of Morrison JA’s reasons and submits his Honour there concluded that neither ss 42 or 43 of the RSLA imported s 176 of the LTA into a lease, regardless of whether it was registered or unregistered.
70. [70]
    On my analysis, Morrison JA’s reasons at paragraph [91] do not distil any binding legal principle that would preclude the Plaintiffs from relying upon s 176 of the LTA with respect to the registered Second Lease.  His Honour’s reasoning in that paragraph was part of a series of reasons his Honour gave for rejecting the argument of the Plaintiffs that had been accepted by Porter DCJ at trial. Morrison JA simply sought to make plain at paragraph [91] that the relevant provisions of the RSLA, which were relied upon by the Plaintiffs as a source of implied terms of the leases in question, did not of their own force import s 176 of the LTA. 
71. [71]
    His Honour’s reasoning is obviously correct and would apply if any contrary proposition were raised in the present proceeding.  However, the Plaintiffs’ claim does not seek to gainsay his Honour’s reasoning. Rather, the Plaintiffs rely upon the fact that the Second Lease was registered and, therefore, the benefits of s 176 of the LTA applied to it.
72. [72]
    Accordingly, I do not accept the Defendant’s proposition that the Plaintiffs’ claim discloses no reasonable cause of action.  At present, it seems to me that the relevant limitation period has not expired and the proceedings that have been commenced by the filing of the new claim are within time. For this reason, it cannot be said that that case is so clearly untenable that it cannot succeed.^[21]

Is the claim an abuse of process?

73. [73]
    Although the Defendant relied on the submission that the Court of Appeal had already determined the Limitation Point adversely to the Plaintiffs as a principal reason for also contending that the present proceeding was an abuse of process, its argument on that issue is much broader.
74. [74]
    Irrespective of the Court of Appeal’s determination of the Limitation Point, the Defendant submits that the recommencement of the present proceedings nevertheless constitutes an abuse of process as it brings the administration of justice into disrepute. The Defendant says this is so because:

1. (a)
   it treats the orders of Wilson J as merely provisional and not binding;
2. (b)
   it attempts to re-litigate an issue which was accepted as decided or concluded, being the limitation issue before Wilson J;
3. (c)
   it gives the impression that a party may change arguments, including arguments of law, after the fact, based on what is expedient rather than what is correct;
4. (d)
   it gives rise to the potential of a conflict between decisions of this Court; and
5. (e)
   the recommencement of proceedings is unfair to the Defendant and vexatious in all the circumstances.

75. [75]
    The Plaintiffs submit that the recommencement of proceedings by the filing of the present claim does not constitute an abuse of process in any of the ways the Defendant contends. The Plaintiffs say:

1. (a)
   Wilson J did not make any decision as to the merits of their claim and did not finally determine the rights of the Parties;
2. (b)
   they are not taking an inconsistent position on the law with respect to the limitation issue and, in any event, they cannot be bound by a previous incorrect position with respect to a matter of law;
3. (c)
   the present proceedings has been commenced within the applicable limitation period; and
4. (d)
   the recommencement of proceedings is not unfair or vexatious, and any prejudice to the Defendant is outweighed by the desirability of permitting the Plaintiffs to have their claim determined on its merits in due course.

Relevant legislation and principles

76. [76]
    Rule 16 of the UCPR provides:

16Setting aside originating process

The court may—

1. (a)
   declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or

2. (b)
   declare that an originating process has not been properly served; or

3. (c)
   set aside an order for service of an originating process; or

4. (d)
   set aside an order extending the period for service of an originating process; or

5. (e)
   set aside an originating process; or

6. (f)
   set aside service of an originating process; or

7. (g)
   stay a proceeding; or

8. (h)
   set aside or amend an order made under rule 126(1) or 129G(1); or

1. (i)
   make another order the court considers appropriate.

77. [77]
    Rule 171 of the UCPR provides:

171Striking out pleadings

3. (1)
   This rule applies if a pleading or part of a pleading—

1. (a)
   discloses no reasonable cause of action or defence; or

2. (b)
   has a tendency to prejudice or delay the fair trial of the proceeding; or

3. (c)
   is unnecessary or scandalous; or

4. (d)
   is frivolous or vexatious; or

5. (e)
   is otherwise an abuse of the process of the court.

3. (2)
   The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

3. (3)
   On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

78. [78]
    In addition to powers conferred by these rules, the Court has inherent power to dismiss or stay a proceeding to prevent an abuse of its own processes.^[22]
79. [79]
    What constitutes an abuse of process is not capable of precise or exhaustive definition. However, cases of abuse of process will commonly exhibit at least one of the following three characteristics:

    1. (a)
       the invoking of a court's processes for an illegitimate or collateral purpose;
    2. (b)
       the use of the court's procedures would be unjustifiably oppressive to a party; or
    3. (c)
       the use of the court's procedures would bring the administration of justice into disrepute.^[23]
80. [80]
    In Tomlinson v Ramsey,^[24] the High Court noted the following aspects of the doctrine of abuse of process:^[25]

1. [45]
   Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

1. [46]
   Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding.

81. [81]
    In Western Australia v Cunningham (No 2),^[26] the Court noted various propositions concerning abuse of process had been discussed in the Court’s earlier decision of Sheraz Pty Ltd v Vegas Enterprises Pty Ltd,^[27] and set out the following convenient summary of those principles:^[28]

The following propositions concerning the nature of abuse of process may also be identified from the reasons in Sheraz:

1. 1.
   Inherent or implied power exists to prevent misuse of the court’s procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation or would bring the administration of justice into disrepute among right-thinking people.

1. 2.
   Abuse of process extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.

1. 3.
   Categories of abuse of process are not closed and the court may exercise its power as and when the administration of justice demands.

1. 4.
   An abuse of process may arise where there are successive proceedings which are vexatious or unjustifiably oppressive, or which threaten the integrity of the administration of justice.

1. 5.
   It would be a scandal to the administration of justice if a litigant were to be permitted by changing the form of the proceedings to set up the same case again in circumstances where the same question had previously been disposed of.

1. 6.
   A court may invoke principles of an abuse of process to prevent attempts to litigate an issue which could and should have been litigated in earlier proceedings, as well as to prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings.

1. 7.
   The focus in applying the principles of abuse of process should be on matters of substance and not form.

82. [82]
    In addition to these statements of principle, the Defendant also relied upon a decision of the Court of Appeal of the Supreme Court of Western Australia in Brocx v Hughes (‘Brocx’),^[29] which the Defendant submitted bore similarities to the present case.
83. [83]
    In Brocx, the Court considered whether an action brought by a plaintiff following dismissal of an identical claim for non-compliance with a ‘springing order’^[30] was an abuse of process. The plaintiff there had commenced proceedings in the Supreme Court but had failed to prosecute her action in a timely way. As a result, an order was made by the Court that unless the plaintiff filed and served a notice of intention to proceed within 14 days, judgment would be entered for the Defendant. The plaintiff failed to comply with that order and judgment was entered for the Defendant.
84. [84]
    The plaintiff in Brocx then filed an application to set aside the judgment, but the application was dismissed as no proper explanation had been given for the failure to prosecute the action diligently or to comply with the springing order. The plaintiff then commenced an appeal against that decision, but later withdrew it and instead recommenced proceeding by a new filing. In response, the Defendant applied for the proceedings to be dismissed as an abuse of process, due to the dismissal of the first proceedings, the conduct of the plaintiff and the length of time that had elapsed since the alleged cause of action arose.
85. [85]
    The Court held that the second proceedings were an abuse of process and dismissed the action. The plaintiff then appealed to the Court of Appeal, which dismissed the appeal. Each member of the Court agreed that the plaintiff’s failure to comply with the springing order was ‘contumacious’.  In his judgment, Newnes JA stated:^[31]

1. [97]
   Where a party demonstrates a disregard for the orders or procedures of the court and as a result their claim is dismissed, their right again to invoke the jurisdiction in respect of that same claim cannot be unlimited if the public interest in the efficient use of court resources and the rights of other litigants are to be given due recognition.  It cannot be the case that so long as the limitation period has not expired a party can ignore the rules and orders of the court, secure in the knowledge that if the worst happens and the action is struck out they can simply start again.  It would bring the administration of justice into disrepute, and be 'productive of serious and unjustified trouble and harassment' to the defendant, if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them…

1. [98]
   Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party's conduct was contumacious, a second action by that party to enforce the same claim will generally be an abuse of process. I do not, however, consider that the fact an action was dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious. I do not understand the cases to which I have referred to suggest otherwise. In each case, the court found that the conduct was contumacious in the absence of an explanation which showed that it was not. (I think that for all practical purposes 'contumelious' and 'contumacious' have generally been used interchangeably in the cases as denoting a wilful and obstinate resistance or disobedience to authority.)…

86. [86]
    In separate reasons, Buss JA stated:^[32]

1. [15]
   In my opinion, the Supreme Court's power to prevent an abuse of process may be exercised in these circumstances if, relevantly, the commencement and prosecution of the second action would cause or be likely to cause:

1. (a)
   improper vexation or oppression to the Defendant; more particularly, if the second action would be seriously and unfairly burdensome, prejudicial or damaging to the Defendant; or

2. (b)
   the administration of justice to be brought into disrepute.

1. [16]
   Plainly, whether or not the second action should be characterised as an abuse of process, and the action struck out or permanently stayed, will depend on the particular facts and circumstances of the case.  The relevant factors requiring consideration will include any explanation for the plaintiff's failure to comply with the springing order in the first action; the conduct of the plaintiff and the Defendant in relation to the first action, including any failures to comply with the rules of court or interlocutory (including case management) orders and directions and any delays in the progress of the first action; whether any non‑compliance with the rules of court or any interlocutory (including case management) orders or any delays in the first action by the plaintiff or the Defendant were intentional or contumelious; any explanation for or failure to explain any such non‑compliance or delays and any evidence or absence of evidence as to who was responsible for any such non‑compliance or delays; the prejudice to the plaintiff if the second action were to be struck out or permanently stayed; and the prejudice to the Defendant if the second action were not to be struck out or permanently stayed.  Two points connected with the public interest are relevant in evaluating the seriousness (for the purposes of improper vexation or oppression to the Defendant and disrepute for the administration of justice) of any failures to comply with the rules of court or interlocutory (including case management) directions and orders and any delays in the progress of proceedings.  They are the public interest in the efficient conduct of litigation in the courts, including the limited judicial and other resources available for the achievement of that object, and the undoubted fact that proceedings which are the subject of frequent or chronic non‑compliance with interlocutory (including case management) orders, delay or neglect consume a disproportionate share of judicial and other resources and, in consequence, adversely affect the judicial and other resources available to other litigants.  The factors I have enumerated are not intended to be an exhaustive catalogue of the relevant matters in any case.  Although a finding of intentional or contumelious conduct by the plaintiff in the conduct of the first action will be a significant factor in determining whether the second action should be characterised as an abuse of process, the existence of intentional or contumelious conduct on the part of the plaintiff is not an essential condition that must be established by the Defendant before the second action may be struck out or permanently stayed…

87. [87]
    The Plaintiffs submit that Brocx is distinguishable because that case concerned a failure to comply with an order of the Court and that is quite different to the present case. I agree that the case is factually distinguishable on that basis, but I nevertheless accept that the statements of principle identified and applied in Brocx are relevant to the circumstances of the present case.

What was decided by Wilson J?

88. [88]
    The first point to consider is: what did Wilson J actually decide?
89. [89]
    Her Honour heard and determined an application in a proceeding. She did not make any decision as to the merits of the Plaintiffs’ claim. Similarly, her Honour also did not decide any issue between the Parties concerning the Limitation Point.
90. [90]
    Rather, Wilson J decided two things:
91. [91]
    Firstly, her Honour decided that there had been material non-disclosure by the Plaintiffs when they applied to the Court, ex parte, for an order for the further renewal of their claim. Her Honour therefore made an order setting aside the renewal order made by Daubney J.
92. [92]
    Secondly, upon hearing the renewal application de novo, her Honour decided the Plaintiffs had not established ‘another good reason to renew the claim’, as required by r 24(2) of the UCPR. Her Honour therefore dismissed the claim.
93. [93]
    Although the matters decided by her Honour were limited to these two issues, it remains relevant for the purposes of the present application to further consider the bases and reasons for her Honour’s orders.
94. [94]
    With respect to the first issue of alleged material non-disclosure of relevant information at the hearing of the renewal application by Daubney J, her Honour noted the information that was said by the Defendant to be relevant but not disclosed was:

    1. (a)
       that the Plaintiffs relied on the deregistration of Goldtip in the District Court proceedings; and
    2. (b)
       that the dispute the subject of the claim was not based entirely on documentary evidence and does rely upon the recollections of individuals, contrary to what the Plaintiffs told Daubney J, .
95. [95]
    Her Honour accepted that each of these things were relevant and that they had not been disclosed to Daubney J by the Plaintiffs, as they ought to have been. 
96. [96]
    With respect to the first point, her Honour stated:^[33]

Accordingly, it can be seen the plaintiff did not serve the Supreme Court claim in part because the defence in the District Court contains arguments in relation to jurisdictional standing [sic, jurisdiction and standing] that may have affected the Supreme Court matter and the defendants conceded this point prior to District Court trial. However, the plaintiff still did not serve the claim. After such a concession, in submissions to the District Court trial, the plaintiff relied on the deregistration of Gold Tip in relation to answering the efendantnt’s counterclaim and continued to do so in the Court of Appeal and the High Court. Then, once the trial and appeal process were finished in relation to the District Court, the plaintiff then came to his Honour Justice Daubney and sought renewal of the claim, noting that, in his view, for part of their claim to not be not struck out, Gold Tip would have to be reregistered.

In my view, this additional information about the Defendant relying on the deregistration of Gold Tip is relevant.

Whether information is relevant must be considered having regard to the nature of the application, the factors relevant to the exercise of the discretion. A fact is material if it is a matter of substance in the decision-making process and, in my view, this information was.

It goes to whether there was a deliberate decision to refrain from serving the Defendants.  Daubney J found that there was not, but in my view, he was not provided with all the information.

In effect with the additional information and put into context, it is certainly open that the plaintiff sought to take advantage of the fact of Gold Tip’s deregistration in the District Court proceedings, knowing full well that it would need to be reregistered for the purpose of proceedings in this Court.

So, in effect, by not serving the Supreme Court claim, at least until after the second renewal, it is open to conclude that the plaintiffs were seeing to have their cake and eat it too.

The plaintiffs were of the view that part of the Supreme Court claim required the reregistration of Gold Tip...

The first plaintiff told Daubney J that:

As soon as that we received the letter from ASIC, we will make an application to this Court to have Gold Tip reinstated. Once that is done, that overcomes the potential problem and we will be able to rework the pleadings, file and serve them.

I note nothing would have precluded this work being done at the time of filing the claim. However, to do so maybe would be to counter the arguments raised by the plaintiffs in the District Court. It was an advantage for the plaintiff to not serve this claim until those proceedings had concluded. If the plaintiff had served the Supreme Court claim at any time prior to the conclusion of the District Court trial and the appeal process and reregistered Gold Tip, then that may have compromised the District Court argument.

In my view, this material was not disclosed to Daubney, and it was a material non-disclosure. Further, it also throws a new and different light upon whether there was a forensic decision to refrain from serving the Defendants with this claim because they considered it to their advantage, that is, the Plaintiffs reserved to themselves the right to serve this claim when the plaintiff’s circumstances suited them. This approach, in my view, would be inconsistent with rule 5 of the UCPR.

97. [97]
    With respect to the second point, her Honour stated:^[34]

Second, the defendants raised the issue of the prejudice to the defendant from delay. Under the heading “The First Defendant’s Interests have not been Prejudiced”, the plaintiff stated, at paragraph 65 and 66:

The registrar’s reason for refusal include that he finds no evidence that has been provided that the delay will not be prejudiced to the defendant.

The plaintiff said this:

It is accepted that prejudice can arise when the effluxion of time may create problems with the memory of witnesses.

However, and critically, the plaintiff said this:

This dispute is based entirely on documentary evidence and does not rely on recollections of individuals.

The plaintiff’s written submissions to Daubney J were materially inaccurate and misleading in relation to this paragraph.

At paragraph 66, the plaintiff submitted that this dispute is based entirely on documentary evidence and does not rely on the recollection of individuals. However, paragraph 18 of the amended statement of claim alleges a number of statements made by a Mr Nagel on behalf of the defendant at a meeting ‘on or about the 20^th of March 2009’. Critically, it was alleged that, during this meeting, Mr Nagel made a representation which he knew to be false and which Gold Tip relied on to its detriment. This alleged representation is relied on by the plaintiffs for the purposes of claiming loss and damage and this alleged representation was also contained in the statement of claim before Daubney J.

Accordingly, and contrary to the unqualified submissions of the plaintiff before Daubney J, this is a case where Mr Nagel’s recollection of at least this meeting on about the 20^th of March will be critical. The plaintiffs’ counsel states that he accepts that the plaintiff may have gilded the lily. But, in his submission, it was not materially misleading...

…

In my view, this unqualified statement by the Plaintiffs in their submissions before Daubney J was just more than gilding the lily; it was wrong. Such an omission was relevant to the matters to be considered in the exercise of discretion. In my view, it was a matter of substance in the decision-making substance [sic, process]. The plaintiff clearly knew that prejudice was a relevance factor that needed to address [sic].

I accept that, given the time that has passed since the conversation, just by the effluxion of time, prejudice to the plaintiffs has been created, especially as part of the plaintiff’s amended statement of claims relies on a representation contained in a conversation. In my view, the plaintiffs misled Daubney J about the possible prejudice to the defendants from the delay, a relevant matter to be exercised in his Honour’s discretion to renew the claim.

98. [98]
    On the issue of the material non-disclosure, her Honour ultimately concluded:^[35]

As a result of the material non-disclosures by the plaintiff, this Court should consider this matter afresh. The material non-disclosures in this case are the failure to inform Daubney J that the deregistration of Gold Tip was relied on in the District Court proceedings and the statement that the dispute is based entirely on documentary evidence and does not rely on the recollection of individuals. In my view, either one of these matters would amount to a material non-disclosure by the plaintiff. However, I particularly highlight the submission that the dispute is based entirely on documentary evidence. As I have said, this is not just gilding the lily; it was wrong, and it was wrong in a material way. This dispute is not based entirely on documentary evidence and the plaintiff relies on a conversation. He did so at the time of hearing before Daubney J and also in the amended statement of claim.

This, in my view, should have been paced before Daubney J, even if the plaintiff says it only goes to part of the statement of claim. Alternatively, in my view, the Court could also reconsider this matter as there has been additional material, being the maintenance of the defence of the counterclaim based on the deregistration of Gold Tip which threw a new and different light on the situation of the parties.

99. [99]
    Thereafter, on the issue of whether the Plaintiffs had shown another good reason to renew the claim, her Honour traversed at length the various arguments and explanations for delay raised by the Plaintiffs and rejected each of them. One such argument raised by the Plaintiffs concerned the jurisdiction and standing issues that had been raised by the Defendant by way of defence in the District Court proceeding, and the fact that the Plaintiffs wished to first await the determination of that proceeding before serving the claim in the Supreme Court proceeding, where the same issues might well be raised by the Defendant.
100. [100]
     Wilson J noted the thrust of the various arguments as follows:^[36]

The matters raised by the plaintiff in the bulk of the submissions do not address this issue, and they are relatively of little assistance. However, I will repeat them because, picking through them, some of the matters he raised may be relevant to his conduct in assessing whether the plaintiff was shown another good reason to renew the claim. The plaintiff states that the current proceedings are not an abuse of process as it has not been commenced for an improper purpose or an ulterior collateral purpose because the current proceedings was filed on the 23^rd of March 2018 for the perfectly legitimate reason of preserving the claim in the face of a looming limitation date. The current proceedings were not brought at the same time as the District Court claim because, at that time, the respondents were litigants in person with limited financial resources available to seek legal assistance or advice. The non-service of the current proceedings, at the time it was commenced, is not the consequence of some improper or ulterior motive because, in its defence to the District Court claim, the appellant alleged the assignment of rights from Gold Tip to the applicant was invalid and therefore the applicants lack standing to sue.

Further, the applicant alleged only QCAT had jurisdiction to determine the amount of any reasonable compensation payable under the Retail Shop Leases Act and that was the no standing jurisdiction allegations. If the no standing and jurisdiction allegations had been found to be good in law, the respondent would not have had any standing to bring any action in reliance in the assignment and there was no point in the respondents perfecting their pleading and serving the proceeding until the no standing and jurisdiction allegations had been determined.

The plaintiffs submit that, in the premises, it was not improper on the part of the respondents to delay serving the current proceeding until the District Court proceedings had been determined because, until that time, the respondents did not know whether they had standing to bring any proceedings pursuant to the assignment. The need for the renewals of the claim in the current proceedings was a consequence of the slow progress of the District Court claim, a matter which was caused or contribute [sic, contributed to] by the conduct of the application, that is, the defendants. It can be explained by the fact that, from July 2020 onwards, the respondents were engaged with the appeal processes, which ended unsuccessfully on 5 August 2021, and applications to renew the claim.

101. [101]
     In rejecting the plaintiffs’ arguments, Wilson J relevantly stated:^[37]

… even if it is accepted the defendants have raised matters of standing and jurisdiction in the District Court proceeding which, if vindicated, would have been the death knell on the position of plaintiffs in the Supreme Court proceedings, then this death knell was lifted once the defendants conceded the point on the first day of trial.

In relation to the jurisdiction and standing point, the defendants had conceded this point in May 2020 and the plaintiffs failed to serve the claim prior to it expiring again in March 2021. In my view, when looking at this matter, the explanation that it was necessary for the issues of jurisdiction and standing in a District Court proceeding to be determined before this claim could be served makes no sense and is not a cogent explanation for the delay.

I note the defendants pleaded a position as to [the] jurisdiction of the District Court of Queensland to determine a claim for compensation under second 43(1) of the Retail Shop Leases Act was entirely irrelevant for the jurisdiction of the Supreme Court of Queensland to determine a claim for it seems unconscionable conduct and misleading and deceptive conduct.

The defendants’ pleaded position as to the effectiveness of the assignment by Gold Tip’s [sic] to the plaintiffs of the cause of action in the District Court proceedings was similarly irrelevant to this claim. In any event these were matters of law, not fact. The plaintiffs do not say that a cause of any delay was obtaining legal advice on these issues and, even ignoring all those points, the defendant withdrew its challenges to jurisdiction and standing before the trial in that Court on the 4^th of May 2020 and this was shortly after the claim in this Court had been renewed for the second time on the 19^th of March 2020. It is not a good reason for why the plaintiffs did not then serve the claim at any time before in expired again on the 23^rd of March 2021.

102. [102]
     After considering further arguments advanced by the Plaintiffs, her Honour ultimately concluded:^[38]

In my view, this is what the plaintiffs have done in this case, that is by their conduct and for failing to serve the claim, and for reasons that they have given, they have unilaterally arrogated to themselves the benefit of the stay in proceedings in the Supreme Court in defiance of rule 5(3) of the UCPR.

Here, the plaintiffs have not proceeded expeditiously, despite the passing of the limitation periods. To the contrary, they have elected to advance their case only when it suited them. As the plaintiff’s counsel stated, ‘Self-help remedies have some advantages and disadvantages but the course we took resulted in a more expeditious resolutions of the real issues.’

The plaintiffs clearly took a self-help approach to the advancement of this case.

The UCPR is to be applied by the Courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules which is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

It is not for the plaintiffs to apply the rules how they see fit. No meaningful progress has been made in the claim since it was made over four years ago and despite enjoying the benefit of the claim being renewed twice, the plaintiffs have at least a persuasive onus of showing that the order for renewal should be made and that requires for them to satisfy the Court that another good reason exists to renew the current claim and, in my view, this onus has not been discharged.

The plaintiffs have enjoyed the advantage of two prior renewals extending the applicable limitation period by two years and despite this they have done nothing to meaningfully prosecute the case. On consideration of all the relevant circumstances, in my view, there is no good reason to renew the claim under rule 24(2).

…

In this case, the Plaintiffs have provided a number of explanations for the delay. However, for the reasons I have set out, I do not regard these explanations as satisfactory. In my view, the Plaintiffs have not acted in an expeditious way and therefore they have not complied with the implied undertaking to proceed expeditiously. They have not provided a satisfactory explanation for the delay in serving the Defendants and they have not demonstrated another good reason for renewal.

In my view, none of the matters that have been raised by the Plaintiffs on the delay, on a proper analysis, present good or cogent explanations which justify the further renewal of the claim for a third time. In my view, taking into account all of the circumstances, there is no good reason to renew the claim for a third time in the circumstances of this case and the orders should be as the Defendants seek.

The renewal of the claim on the 16^th of December be set aside and the proceedings be dismissed.

Are the Plaintiffs now taking an inconsistent position?

103. [103]
     Because I have concluded the Court of Appeal did not decide the Limitation Point in the way the Defendant submits, I do not consider the Plaintiffs are attempting to relitigate a decided issue concerning the applicable limitation period for the causes of action disclosed by the present claim.
104. [104]
     Further, I do not consider the position taken by the plaintiff with respect to the limitation period necessarily has the potential to cause conflict between decisions of this Court; neither Daubney J nor Wilson J were required to decide that issue.
105. [105]
     However, I do consider the Plaintiffs are attempting to proceed on a basis that is clearly contrary to the position they previously adopted with respect to the limitation period.
106. [106]
     At the hearing of the application by Wilson J, her Honour was informed by counsel for the Defendant that the Plaintiffs’ claim had been filed to preserve a limitation period. The Plaintiffs did not challenge this submission; indeed, they positively embraced it. Counsel for the Plaintiffs made the following submission to her Honour:^[39]

Just one thing with respect to prejudice, your Honour. If the claim is not renewed, or the orders of Justice Daubney are set aside, then the respondent would be summarily shut out from pursuing what I say is a – in my submission, is a maintainable course of action…In my submission, to summarily shut them out would cause them an irreparable prejudice…

107. [107]
     Similarly, the Plaintiffs’ written submissions contained the following submission:

1. 13.
   The current proceedings is [sic] not an abuse of process as:

1. (a)
   it has not been commenced for an improper purpose (i.e. for an ulterior or collateral purpose) because:

1. (i)
   the current proceeding was filed on 23 March 2018 for the perfectly legitimate reason of preserving the claim in the face of a looming limitation date…

…

5. (e)
   the prejudice of the Respondents from any summary determination of the current proceeding outweighs any prejudice to the applicant because if the proceeding is summarily determined:

1. (i)
   the Respondents will be shut out from pressing their good and proper case..

…

108. [108]
     I further note that in the on which the Plaintiffs relied, Mr Goldsmith deposed to the fact that the first Supreme Court claim was filed in early 2018 because he was aware of the approaching limitations ‘deadline’.^[40]
109. [109]
     Given the submissions that were made, it is unsurprising that her Honour proceeded on the following basis:^[41]

Having already commenced the proceeding, the plaintiff’s position was preserved. This could actually have been a circumstance warranting the prompt service of the claim in order to see whether the defendant called up a defence based on limitation of action. The plaintiff’s position is the claim was filed shortly before the relevant limitation periods expired and there is just some dispute about limitation periods, but the plaintiffs accept the limitation periods have expired after they have filed.

As Jackson J said in McIntosh, the expiry of a limitation point is an important  circumstance, because a party who ‘starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right’.

Like in Wallace v Bendigo and Adelaide Bank Limited & Anor [2020] QCA 122, the commencement of the claim shortly before the expiry of a period of limitation is further evidence of a strategy to keep these claims alive whilst not having to prosecute them.

110. [110]
     It is plain that the application before Wilson J was argued and determined on the basis that both Parties and her Honour accepted that the applicable limitation period had expired after the claim in the first Supreme Court proceeding was filed.
111. [111]
     Despite this, the Plaintiffs now contend that the applicable limitation period is actually 12 years, that the claim initiating the present proceeding has been filed within time, and that the pleaded causes of action are not statute barred.  I consider this to be clearly inconsistent with the position the Plaintiffs took before Wilson J.
112. [112]
     It is most curious that the point now taken with respect to the asserted 12-year limitation period was not raised by the Plaintiffs before her Honour. That is particularly so where Mr Goldsmith has now deposed in an affidavit read by the Plaintiffs at the hearing of this application that they, in fact, became aware some time before 12 November 2019 that the 12-year limitation period applied.^[42]
113. [113]
     To put in plainly, the timing of this apparent realisation is such that the Plaintiffs must necessarily have believed a 12-year limitation period applied:

1. (a)
   the second time they sought order from the Registrar to renew the claim;
2. (b)
   the third time they sought an order from the Registrar to renew the claim;
3. (c)
   when Daubney J heard the ex parte application for an order for renewal of the claim; and
4. (d)
   when Wilson J heard the Defendant’s application to set aside the renewal order and dismiss the proceeding.

114. [114]
     I do not accept the Plaintiffs’ submission that their position with respect to the limitation period point has remained consistent. Regardless of whether the submissions made by Mr Goldsmith to Daubney J might be construed as consistent with maintaining a belief in a 12-year limitation period, the simple fact is that no such interpretation can be given to the submissions made to Wilson J.   The clear and unambiguous effect of the Plaintiffs’ submissions to her Honour was that the relevant limitation period had expired. The Plaintiffs urged her Honour to determine the application on a basis they accepted, yet they now seek to resile from.  
115. [115]
     In my opinion, the position the Plaintiffs now take with respect to the applicable limitation period, even if correct as a matter of law, does give the distinct impression that a party may advance arguments, including arguments of law, based on what is expedient rather than what is correct.
116. [116]
     In the hearing before Wilson J, the Plaintiffs were content to proceed on the basis that the relevant limitation period was six years and had expired shortly after they had served the previous claim. I conclude that is suited the Plaintiffs at that time to maintain that position so that they could argue to her Honour that they would suffer the ‘irreparable prejudice’ of being ‘shut out’ of their claim if it was dismissed. In other words, it was to their advantage. To my mind, there can be no other rational explanation.
117. [117]
     Now, the Plaintiffs argue that they have commenced the present proceeding in time, and they therefore have a right to have their claim determined on its merits. They seek to proceed this way in circumstances where they have not given a satisfactory explanation given as to why her Honour was not informed that this was their position at the time the dismissal application was heard.
118. [118]
     Parties are generally bound by the way they conduct their cases. As the High Court observed in Metwally v University of Wollongong:^[43]

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so…

119. [119]
     I reject the Plaintiffs’ argument that even if they have adopted an inconsistent position, it is an inconsistent position with respect to the law and therefore they are not bound by it.  I am not concerned here with whether, as a matter of law, a party should be held to a previous position or concession. The question I am concerned with is whether, in all the circumstance, the filing of the new claim and the commencement of the present proceeding is an abuse of process. That being so, the fact that a party has deliberately taken successive inconsistent positions with respect to a matter of law, to suit their own convenience, is entirely germane and to be taken into account.
120. [120]
     As the principles I have set out earlier confirm, an abuse of process may arise where a party seeks to raise an issue for determination which ought reasonably to have been raised in an earlier proceeding, but which was not. Similarly, in my view, an abuse of process may arise where a party seeks to proceed on a legal basis different to that which they intentionally advanced in earlier proceedings. Of course, a mere change of position is not necessarily sufficient. It is necessary to consider the conduct of the party in question having regard to the entirety of the circumstances.

Is the new proceeding unfair or vexatious? 

121. [121]
     I do not consider the present proceeding to be vexatious, in the sense there is a clear absence of reasonable grounds for the claim or that the Plaintiffs seek to pursue allegations or arguments that are similar to those that have been already rejected.^[44]   Nevertheless, I do consider the Defendant is again being vexed with the same claim as that which was dismissed by Wilson J. In my view, it is unfair to the Defendant to again be faced with the prospect of this litigation.
122. [122]
     The events in question are said to have occurred more than 15 years ago. There has already been substantial litigation in the District Court and an appeal to the Court of Appeal in respect of the same general facts upon which the new claim is based. On the basis of the matters pleaded in the new statement of claim, it seems likely that the present proceeding will again require an examination and determination of some of the same issues regarding the financial performance and demise of the business that were considered and decided in the District Court proceeding.
123. [123]
     The Plaintiffs have previously attempted to proceed with an indistinguishable claim in this Court. Although it was not determined on its merits, the claim was dismissed on the bases I have outlined above. Having been relieved of the burden of that litigation, the Defendant is now again confronted with the resurrection of what is, in effect, the same claim and the prospect of having to defend it, because the Plaintiffs have shifted the goalposts.
124. [124]
     It is well recognised that the stress of ongoing litigation is a prejudice to litigants. In Jackamarra v Krakouer,^[45] Gummow and Hayne JJ, referring to prejudice arising from delay, albeit in a different context but in observations that are apposite here, stated:^[46]

Delays in the courts are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case. Delay in a case will almost always add to the costs. The case takes longer to prepare and to try because the events are no longer fresh in the minds of those who will give evidence. Costs, therefore, increase. Delay in a case also adds to the overall burden on the judicial system. The case that has been delayed in coming to trial and therefore takes a day longer to try than otherwise would be needed, keeps another case out of the lists for that day. Or, as happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with prescribed time limits. Each day's delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants. No doubt there are other reasons for the disquiet felt by both litigants and lawyers about delay but the matters we have mentioned indicate why it is so important to avoid delays wherever possible.

Conclusion

125. [125]
     For present purposes, I am satisfied that the Plaintiffs have commenced this proceeding within the relevant limitation period. Accordingly, I accept, as a general starting proposition, that they are entitled to have their claim determined on its merits.
126. [126]
     However, a party does not have an unlimited and absolute right to have their claim heard and determined on its merits.
127. [127]
     As was noted by Newnes JA in Brocx:^[47]

1. [93]
   It is evident, however, that in Australia, as in England, there has in more recent times been a change in the approach of the courts to the conduct of litigation and there is now a much greater focus on the effect that the way in which parties conduct litigation has on the court and other litigants.  In that connection, the principles referred to in the older cases now fall to be considered in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In that case, the court pointed out that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost‑effective resolution of a dispute has an effect upon the court and upon other litigants. Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.

1. [94]
   Whilst those observations were, of course, made in respect of a late application to amend a pleading, in my view they are of general application.  They were made in the context of rules of court which find their counterpart in this court in O 1 r 4B.  That rule provides, in effect, that the rules and the processes and procedures of the court are to be applied so as best to attain the just determination of litigation, the efficient use of the resources of the court, and the timely disposal of the business of the court at a cost affordable by parties.

…

1. [96]
   The resources of the court are limited and the demands upon them are great.  In light of the objects set out in O 1 r 4B, the public interest in the efficient use of those resources and the right of other litigants to have their disputes resolved in an efficient and timely way are properly matters to be taken into account in determining whether proceedings instituted in circumstances such as the present are an abuse of the process of the court.  Parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute and must be afforded a sufficient opportunity to resolve their dispute by that process.  But that opportunity is not unlimited.

128. [128]
     The same may be said of civil litigation conducted in Queensland and r 5 of the UCPR.

The Plaintiffs have already brought several actions against the Defendant, each arising out of a common factual background and circumstances which are now quite dated.   The most recent claim was dismissed by a judge of this Court, who concluded that the Plaintiffs had previously misled the Court and had deliberately failed to comply with the implied undertaking imposed by r 5 of the UCPR, as it was to their advantage not to do so. Further, the Plaintiffs positively led the judge to decide the application before her on a basis that they not only now contend was incorrect, but they accept was known or believed by them to be incorrect at the time – yet not disclosed to the judge.

129. [129]
     It appears to me that the Plaintiffs have previously asserted a contrary position with respect to the applicable limitation period when it suited them to do so and they now seek to change their position, as it again suits them to do so.
130. [130]
     The Court cannot permit its processes to be invoked and employed in circumstances where the commencement and continuation of proceedings undermines or erodes public confidence in the fair and consistent administration of justice, or where it is seriously and unfairly burdensome to a party. In my opinion, each are the effects of the present proceeding.
131. [131]
     Having regard to the conduct of the Plaintiffs in the proceedings before Daubney J and Wilson J, and their taking of deliberately contrary positions on the applicable limitation period, I consider that to permit the continuation of the present proceeding would bring the administration of justice into disrepute.
132. [132]
     I am therefore of the view that the present proceeding is an abuse of process, and it is appropriate to grant a permanently stay.
133. [133]
     I also consider, for the reasons I have given concerning the Plaintiffs’ conduct of the Supreme Court proceedings, that the Plaintiffs should pay the Defendant’s costs on an indemnity basis.

Orders

134. [134]
     Accordingly, the orders I make are:

1. The Defendant has leave to file and proceed with the application filed on 4 August 2022.
2. The claim filed by the Plaintiffs on 28 June 2022 is permanently stayed.
3. The Plaintiffs are to pay the Defendant’s costs of the proceeding on an indemnity basis.