Oldmeadow v Trevorrow[2023] QSC 38

1. [29]
   The allegation is that Mr Trevorrow failed to take into account each of those matters. A court’s assessment of whether Mr Trevorrow took those reasonable steps will involve consideration of Mr Trevorrow’s knowledge, and the advice he received on the development potential of the site at the time, and what was reasonable for him to take into account, as well as the effect of any leases on the potential market price, the market rents for these types of industrial, standard commercial terms for leases, and the likelihood of a sale at what was adjudged to be a fair price.
2. [30]
   In respect of the sale of the Rudman Parade Property, the allegation is that a prudent person in Mr Trevorrow’s position would have taken into account these factors:
   3. (a)
      The purchase price for the sale of the Rudman Parade Property was materially less than the value of the Rudman Parade Property at the time or, alternatively, there was a material risk that was the case.
   3. (b)
      The highest and best use of the Rudman Parade Property was, but for the leases, as an industrial development (potentially including a refuse transfer station pursuant to the material change of use approval).
   3. (c)
      While the leases remained on foot, the highest and best use of the Rudman Parade Property was not available without the lessees’ consent, as it would require the land to be developed.
   3. (d)
      Any sale of the Rudman Parade Property in about August 2016 would be subject to the restriction referred to in particular (c) above.
   3. (e)
      The Rudman Parade Property could be sold at a higher valuation after the expiry or renegotiation of the leases at which time the restriction referred to in particular (c) above would have ceased to exist.
   3. (f)
      Were Mr Clark to retain the Rudman Parade Property, its value would appreciate as the M1 Motorway upgrade progressed, and the remaining term of the leases diminished, and it was in Mr Clark’s interests to retain the property rather than selling in August 2016.
   3. (g)
      GSI was unprofitable, required substantial capital investment out of Mr Clark’s assets in order to continue to operate, and it had a major client (Aussitecture) whose contract to purchase sandstone was due to expire in December 2017.
   3. (h)
      It was in Mr Clark’s interests for GSI to be placed into external administration or, alternatively, operated without significant additional capital expenditure.
   3. (i)
      Substantial capital investment in GSI (including the purchase of the equipment) out of the proceeds of a sale of the Rudman Parade Property in August 2016:
   3. (i)
      was not appropriate to address Mr Clark’s needs and circumstances as an elderly and disabled person;
   3. (ii)
      would not reasonably diversify his assets;
   3. (iii)
      was not reasonably necessary to maintain the real value of Mr Clark’s assets;
   3. (iv)
      gave rise to a risk of capital or income loss or depreciation;
   3. (v)
      was not reasonably likely to yield income return in the short term or at all; and
   3. (vi)
      was not a prudent investment.
   3. (j)
      The proceeds of the sale of the Rudman Parade Property would not be assets in respect of which Trevorrow was the administrator such that they would not be within his power to use for capital expenditure in GSI or any other of Mr Clark’s assets without the Public Trustee’s consent.
   3. (k)
      Pro Skips Pty Ltd attributed a special value to the Rudman Parade Property that was not reflected in the purchase price under the sale contract.
   3. (l)
      For the reasons set out in these particulars, it would not be in Mr Clark’s interests to sell the Rudman Parade Property in August 2016 to Rudman Commercial Pty Ltd for $7,260,000 in order to fund GSI’s operations or at all.^[11]
3. [31]
   It can be seen that the net cast by those allegations is expansive and far reaching. It requires a retrospective examination of real estate values, the site’s development potential, the impact of the leases on values, the progression of the M1 Motorway upgrade and its effects on property values, an assessment of GSI’s financial position, an assessment of the intentions of GSI’s major client, judgments about Mr Clark’s health, needs and best interests, an appraisal of the risks of capital or income loss or depreciation, consideration of the views of the Public Trustee, any special premium attributed to the property by Pro Skips Pty Ltd, and the prospects of increases in the market value of the Rudman Parade Property.
4. [32]
   Those broad aspects of the proposed claim are important. The case proposed is a considerable undertaking. The burden on the litigants will be significant, requiring a detailed examination of the commercial and other factors at play in 2014, 2015 and 2016. Courts are often the forum for those expansive disputes, but it is a concern that the definition of those disputes is only occurring in 2022. Another concern is that there is an element of retrospectivity. Factor (f) above, in particular, criticises Mr Trevorrow for, in effect, failing to nurse the property through to a future point when its market value was expected to be higher.
5. [33]
   The pleading of damage in the statement of claim is also problematic. Mr Trevorrow’s sale of the Rudman Parade Property, and his misuse of the proceeds of sale, is claimed to have led to a loss “in the sum of $24,740,000, alternatively at least $3,740,000”. The larger figure is based on a sale price of the Rudman Parade Property in October 2022. That can hardly be cogent evidence of the market value of the property in August 2016. Even the lower figure is based on a valuation some 18 months before the sale.
6. [34]
   Suffice it to say that the proposed statement of claim looks to be a work in progress.   

The Procedural History

35. [35]
    The applicable limitation period for a claim under s. 59(5) of the GAA is 6 months from the date of the death of the adult (in this case Mr Clark, who died on 28 May 2019). 
36. [36]
    These proceedings were commenced by an originating application filed on 28 November 2019, immediately before the expiry of the limitation period.^[12] Mr Oldmeadow says that was done to preserve the cause of action.
37. [37]
    The proceedings having been commenced on 28 November 2019, rule 27(1) of the Uniform Civil Procedure Rules 1999 (UCPR) required the originating application to be served at least 3 business days before the day set for hearing of the application. It was not an onerous requirement. The initial return date was 31 March 2020, and so service was required on or before 25 March 2020 – some 4 months after the proceedings were filed.
38. [38]
    Mr Oldmeadow’s counsel sought to contrast that period required for service with the position if the proceedings had been commenced by claim.  If that method had been deployed service of the claim would have been required within 12 months (subject to renewal).^[13] Given the inaction that followed, the contrast does not assist Mr Oldmeadow.^[14][41]
39. [39]
    There was apparently no attempt to serve any of the six defendants, including Mr Trevorrow. On 7 April 2020, the then-solicitors for Mr Oldmeadow notified Mr Trevorrow that the proceedings had been commenced against him and provided a summary of the claim. Mr Trevorrow, who all this while continued practicing as an accountant, notified his insurers. Mr Trevorrow contends that service on him at his place of work in Robina would not have posed any difficulty. That is not contested.
40. [40]
    From that point onwards, the proceeding was adjourned on 21 or 25 occasions.^[15] Typically the return date for the originating application was ‘administratively adjourned’ by the court’s Applications Manager simply on the basis that the respondent had not been served.^[16] No reasons were given for the failure to serve. Certainly, the court was not told that no attempts were being made to effect service.
41. [41]
    On 9 July 2022, Mr Trevorrow was finally served with the application and with a letter of 8 July 2022. The letter gave notice that the matter was returnable on 29 July 2022 and proposed that the proceedings continue as if commenced by claim. By this time, approximately 2 years and 7 months elapsed in the period between filing and the service of the originating application.^[17]
42. [42]
    The application then came before Callaghan J on 29 July 2022. It was drawn to His Honour’s attention that leave was required pursuant to UCPR rule 389(2). His Honour made orders giving directions leading to the hearing of the application for leave to proceed. His Honour also made a ‘guillotine’ order in these terms:

The Applicant file and serve any application for leave to proceed pursuant to Rule 389(2) of the Uniform Civil Procedure Rules 1999 on or before 12 August 2022, failing which, these proceedings be struck out with the Applicant to pay the Respondent’s costs of and incidental to the proceedings on the indemnity basis.

43. [43]
    The application for leave was filed on time, but it was not served in accordance with UCPR rule 103. It was served after 4.00 pm on 12 August 2022, which necessarily meant that it was deemed to have been served the next day.^[18] Thus, the guillotine fell and the application for leave to proceed stands dismissed with costs to be paid on an indemnity basis.

The Applications

44. [44]
    As a result of that rather chequered procedural history, there are now four applications before the court:

    1. (a)
       There is what may be termed the primary application, which is Mr Oldmeadow’s application for leave to proceed under UCPR rule 389(2) on the part of the applicant for leave to proceed.
    2. (b)
       there is an application by Mr Oldmeadow to escape the consequences of the guillotine order, that is, pursuant to UCPR rule 7, Mr Oldmeadow applies for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022;
    3. (c)
       Mr Trevorrow makes a cross application to dismiss the proceeding for want of prosecution under UCPR rule 280;^[19]
    4. (d)
       Mr Oldmeadow commenced a separate proceeding by another originating application, No. 11072/22, seeking an order extending the relevant limitation period under s 59(7) of the GAA in the event of the failure of the application for leave under UCPR rule 389(2).
45. [45]
    The application to avoid the consequences of the guillotine order [i.e. application (b) above] came before Boddice J on 29 August 2022. His Honour considered that the application necessarily involved considerations which overlapped with the UCPR rule 389(2) application [i.e. application (a) above] and that both matters ought to be heard together. His Honour adjourned that application to the 24 October 2022. Ultimately, the four applications came before me in the civil list on 31 October 2022.
46. [46]
    Finally, I should note that both parties agreed that the primary application before me is the application for leave to proceed under UCPR rule 389(2) and that the considerations relevant to that application are relevant to all four applications. For example, the written submissions on behalf of Mr Oldmeadow noted that:

Each of the [three] applications referred to in paragraph 1 above gives rise to the same question: should the Court exercise its discretion to permit the Applicant to bring his claim against the Respondent notwithstanding the delay that occurred prior to service of the Originating Application on 9 July 2022. It is submitted that the different procedural character of the respective applications is not highly significant to the determination of that question. The Applicant's purpose in filing his application pursuant to s. 59(7) of the GAA [i.e. application (d) above] was solely to ensure that the question of whether the claim should be permitted to continue to trial could be determined in a single hearing.

The Principles

47. [47]
    UCPR rule 389(2) is relatively simple:

If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.

48. [48]
    There are two principal authorities dealing with UCPR rule 389(2). The first is the decision of Chesterman J in Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd.^[20] In that case, His Honour approved the comments of Connolly J in Dempsey v Dorber^[21] that the proper approach is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order. Chesterman J then went on to state:

Whether there is a satisfactory explanation for the delay in the prosecution of the action and whether the defendant will suffer prejudice if the action proceeds are always relevant factors. The discretion conferred to rule 389 is one to allow an action to proceed despite the general prohibition against an action continuing in which no step has been taken for three years. The applicant must satisfy the court that grounds exist for exercising the discretion in its favour. There is an evidentiary onus on the defendant to raise any consideration telling against the exercise of the discretion but the ultimate onus of satisfying the court that the action should be allowed to proceed remains on the applicant: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; 139 ALR 1; 70 ALJR 866; BC9604531 per Toohey and Gummow JJ.

49. [49]
    The second is the decision of Atkinson J (with whom McMurdo P and McPherson J agreed) in Tyler v Custom Credit Corp Ltd.^[22] In that case, Her Honour set out a non-exhaustive list of 12 factors to be taken into account in determining whether the interests of justice require the case to be dismissed under rule 389(2):

    2. 1.how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
    3. 2.how long ago the litigation was commenced or causes of action were added;
    4. 3.what prospects the plaintiff has of success in the action;
    5. 4.whether or not there has been disobedience of Court orders or directions;
    6. 5.whether or not the litigation has been characterised by periods of delay;
    7. 6.whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
    8. 7.whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
    9. 8.whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
    10. 9.how far the litigation has progressed;
    11. 10.whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
    12. 11.whether there is a satisfactory explanation for the delay; and
    13. 12.whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
50. [50]
    However, Her Honour said that the court's discretion is not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. Unnecessary delay in proceedings has a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result.
51. [51]
    It is appropriate to discuss each of the factors listed by Atkins J in Tyler v Custom Credit Corp Ltd, although not in the same order, and with an additional factor.

The Explanations for the Delay

52. [52]
    Mr Oldmeadow's evidence is that there were predominantly two reasons for the delay in service of the proceeding. The first was a dispute between Mr Oldmeadow and his sister, Ms Clark, who was the other administrator of Mr Clark's estate. That dispute was not resolved until February 2021.^[23] The second is the fact that Mr Trevorrow did not obtain from the Public Trustee the very large volume of documents relevant to the estate until September 2021.
53. [53]
    The first reason is hardly convincing. Mr Oldmeadow describes his relationship with his co-administrator, Ms Clark, as dysfunctional.^[24] The fact that the two administrators were in dispute is not easily discernible as a reason for inaction. Even administrators who are in dispute could investigate, or prosecute, or engage lawyers to investigate and prosecute a case against a third party. There is no suggestion that the administrators were deadlocked on whether to investigate or prosecute the proceeding against Mr Trevorrow. Indeed, the proceedings were issued whilst both Mr Oldmeadow and Ms Clark were co-administrators. Rather, Mr Oldmeadow’s argument seems to be that there were multiple issues with the estate such that Mr Oldmeadow was not in a position to litigate proceedings at the time and instead was required to focus resources on reviving the estate.^[25] Thus, the administrators’ dispute is said to have distracted Mr Oldmeadow’s focus rather than constituting a barrier to progress.
54. [54]
    Mr Oldmeadow’s evidence is that:

I was attempting to resolve issues with my sister, Ms Clark, the co-administrator of the estate, and without her consent I could not progress the Proceedings or take a step in relation to the estate as I understood both administrators’ consents were required. While in a dispute with Ms Clark about the administration I did not want to nor did I consider I was entitled to progress the proceedings without her agreement.^[26]

55. [55]
    That evidence does not go very far. The proceedings had been issued. Presumably they were issued on the instructions of both administrators. There is no evidence that Ms Clark ever refused to permit the case to proceed.
56. [56]
    Mr Oldmeadow does say that his co-administrator did not want to remain liable and responsible for the estate and that impeded progress.^[27] Mr Oldmeadow says that the two administrators could not agree on the direction or management of the estate.^[28] Presumably, that was a problem with the administration. However, the absence of evidence that Ms Clark refused to permit the progress of the proceeding against Mr Trevorrow is crucial. It means that it is likely that Mr Oldmeadow decided not to proceed until he resolved the dispute with his co-administrator.
57. [57]
    And, even if the dispute had led to a complete freezing of the administration or a suspension of the prosecution of this claim, then one wonders why that state of affairs was allowed to remain from November 2019, when proceedings were issued, until February 2021 when the dispute was resolved.
58. [58]
    Importantly, the resolution of the dispute between the administrators did not then prompt Mr Oldmeadow into action. A further 17 months elapsed before the proceedings were served.
59. [59]
    That leads to the second reason. Undoubtedly, there was a delay in extracting some documents from the Public Trustee. The relevant events seem to have been these:

    1. (a)
       In December 2017, the Public Trustee acquired Mr Trevorrow’s files and his solicitor’s files;^[29]
    2. (b)
       In September 2019, Mr Oldmeadow’s then solicitors, K&L Gates, received 22 boxes of documents from the Public Trustee;^[30]
    3. (c)
       Presumably, K&L Gates were able to examine those boxes on Mr Oldmeadow’s behalf until their retainer was terminated in June 2020 (discussed below);
    4. (d)
       On 23 April 2021, Mr Oldmeadow picked up the 22 boxes from either K&L Gates or from GRT Lawyers, a firm he had engaged to obtain the boxes;
    5. (e)
       Also in April 2021, Mr Oldmeadow picked up a USB from K&L Gates which was described as a copy of the Public Trustee’s file;
    6. (f)
       Between July and September 2021 GRT Lawyers, on Mr Oldmeadow’s behalf, received a further USB from the Public Trustee comprising 67.4GB of data;
    7. (g)
       Mr Oldmeadow is uncertain that he has all of the Public Trustee’s documents.^[31]
60. [60]
    That chronology casts some light on Mr Oldmeadow’s argument that he was delayed in this proceeding because it was not until September 2021 that he obtained from the Public Trustee the very large volume of documents relevant to the estate. First, there is no evidence that the Public Trustee unfairly delayed in supplying documents to Mr Oldmeadow or his lawyers.^[32] Second, Mr Oldmeadow’s then solicitors received a significant quantity of documents in September 2019 and then Mr Oldmeadow himself received those boxes and a USB in April 2021. No crucial documents are said to be missing from those tranches of documents. Third, there is no reason why Mr Oldmeadow’s then solicitors, K&L Gates, could not have properly examined the documents between September 2019 and the termination of their retainer in June 2020. Fourth, the delays thereafter were delays that are likely to have been caused by Mr Oldmeadow’s change of solicitors. Fifth, viewed in a broad way, if there were delays in the analysis of the documents, that seems to have been a consequence of the broader delay in prosecuting the case rather than an explanation for the delay.
61. [61]
    Litigation is only rarely commenced and prosecuted by a party who has a complete brief of all of the relevant documents. The process of disclosure is designed to ensure each party has a relatively full brief. Here, it is difficult to conclude that Mr Oldmeadow was deprived of crucial documents until September 2021. After all, the case which Mr Oldmeadow seeks to prosecute is that Mr Trevorrow entered into improvident leases and contracted to sell the Rudman Parade Property at an undervalue, misused the proceeds and charged too much. Mr Oldmeadow and his solicitors do not say that he was deprived of the documents crucial to those four claims.
62. [62]
    There is a further problem with this explanation. On any view, the documents were supplied by the Public Trustee in September 2021. It was then a further 10 months before the proceedings were served.
63. [63]
    The material discloses other causes of delay. In about June 2020, Mr Oldmeadow terminated the retainer of his then solicitors, K&L Gates. There was then a delay in retaining new solicitors partly because Mr Oldmeadow was residing in Hawaii and by reason of the COVID-19 pandemic he found it difficult to travel to Australia to engage new solicitors. In this day and age, with modern communications, it is difficult to take seriously the proposition that a person’s presence in Hawaii has prevented him engaging lawyers in Brisbane.^[33] Certainly there is no evidence of any particular practical difficulties.
64. [64]
    Incidentally, Mr Oldmeadow attributes his presence in Hawaii as an explanation for broader delay. For similar reasons, that can be discounted as a proper explanation.
65. [65]
    In October 2020, Minter Ellison appeared on the record for the administrators, on the instructions of Ms Clark. Mr Oldmeadow objected to Minter Ellison acting for the estate. He told Minter Ellison he would act for himself. He filed a notice to that effect in November 2020. Then, in December 2020 Mr Oldmeadow engaged Freestone Law who filed a notice that they were acting, so that Freestone Law acted for Mr Oldmeadow and Minter Ellison acted for Ms Clark. Then, K&L Gates exercised a solicitors’ lien over the file. During all this time the application was regularly adjourned. Eventually, on 27 April 2021, Ms Clark ceased as administrator but, even then, there was no progress.
66. [66]
    Mr Oldmeadow attributes the delay between June and October 2021 as caused by his inability to obtain (unspecified) documents from the Public Trustee who was exercising a lien. The documents were supplied by the Public Trustee in September 2021.
67. [67]
    There were then further delays because Mr Oldmeadow decided to terminate Freestone Lawyers and to instead engage his present lawyers, Quinn Emmanuel. That firm was engaged in November 2021. Between then and April 2022, that firm obtained the documents analysed them, retained counsel, and commenced proceedings in the matter number 6570/22. Curiously, Quinn Emmanuel did not receive the originating application until 26 April 2022. The court dates for that application continued to be adjourned by Freestone Law. On 1 June 2022, Quinn Emmanuel replaced Freestone Law as the solicitors on the record for Mr Oldmeadow. At the request of Quinn Emmanuel, the court’s Applications Manager adjourned the return day for the application from 30 June 2022 to 29 July 2022 to enable service to occur. As explained, service eventually occurred on 9 July 2022.
68. [68]
    In short, the explanation does not adequately explain the delay. It may be a partial explanation for a part of the delay, but it is hard to escape the conclusion that there was a rather leisurely approach to prosecution of the proceedings which was due to a loss of focus rather than any unfair withholding of documents or obstruction from the co-administrator.

How Long Ago the Events Occurred

69. [69]
    According to the proposed statement of claim, Mr Trevorrow’s administration of Mr Clark’s businesses occurred between September 2014 and December 2017.^[34] An application for a material change of use was submitted in October 2014. The six leases were entered into in December 2014 with a further leases in January or February 2015 and August 2015. For the periods ending 30 June 2015 and 30 June 2016, GSI operated at a loss. In August 2016, Mr Trevorrow, on Mr Clark’s behalf, entered into a contract to sell the Rudman Parade Property for $7.26 million when its true market value was “at least” $11 million.   
70. [70]
    Those events, which occurred in the period 2014 to 2016, are all now quite some time ago. There is force in the submissions for Mr Trevorrow that the events have some complications. It is likely that, at the heart of the case, are some business decisions made by Mr Trevorrow on Mr Clark’s behalf. Relevant to those business decisions are assessments made as to the profitability and prospects of various businesses in the Clark group. Indeed, the proposed statement of claim makes the point that GSI operated at a loss for the financial years ended 30 June 2015 and 2016. Reconstructing all of that, and revisiting the business judgments made at the time, is likely to be a significant undertaking.

How long ago the litigation was commenced   

71. [71]
    The litigation was commenced on the last day of the limitation period – six months after Mr Trevorrow’s death. However, that was quite some time after the relevant events.
72. [72]
    Of greater concern here is delay after commencement and the rather embryonic stage of the proceeding (discussed below).

The Plaintiff’s Prospects of Success

73. [73]
    It is difficult to make a proper assessment of Mr Oldmeadow’s prospects of success. However, even from this distance, there is reason to doubt that the proposed claim has a sound footing. For example, the sale of the Rudman Parade Property is attacked as a sale at an undervalue. However, there is no substantive evidence that the sale in August 2016 was a sale at less than market value. The table at paragraph [11] above explains the evidence. The sale price is consistent with the Taylor Byrne valuation in June 2016.
74. [74]
    Some of the difficulties with the proposed statement of claim, and its expansive nature, are discussed above. The claim is a challenging one.
75. [75]
    It should be borne in mind that Mr Trevorrow was the administrator of Mr Clark’s assets. He was plainly obliged to act honestly and with reasonable diligence in the performance of that role. However, reasonable diligence would not ordinarily require Mr Trevorrow to nurse a property until a better price could be achieved.
76. [76]
    That is a view looking at the proposed pleading. There may be other problems. For example, in his affidavit, Mr Trevorrow says that it was the Public Trustee who required the sale of the Rudman Parade Property.^[35]

Nature of the Claim

77. [77]
    Although it was not one of the factors listed by Atkinson J in Tyler v Custom Credit Corp Ltd, it is worth noting, not only the prospects of the proposed claim, but also the nature of proposed claim. Here, as explained, the nature of the claim is that Mr Trevorrow, as Mr Clark’s administrator, breached his duty to act with reasonable diligence. There are no allegations of dishonesty.
78. [78]
    That the claim bears that character is a factor to consider in this case. If there were allegations of dishonesty against an administrator, there would be a relatively stronger element of public interest in having those allegations properly investigated and tested.

Disobedience of Court orders or directions

79. [79]
    There are two aspects relevant here. The first is the failure to comply with the guillotine order made by Callaghan J. That failure was rather minor. The failure to serve the application for leave to proceed was a failure to serve it by 4 pm. It was served only about two hours late. 
80. [80]
    The second is that, even on Mr Oldmeadow’s own case, the originating application was adjourned on 21 occasions.^[36] As I have mentioned, the only disclosure to the court was that the proceeding had not been served. At the least, the repeated adjournments were inconsistent with Mr Oldmeadow’s implied undertaking to the court and to the other parties to proceed in an expeditious way.^[37]

Has the litigation been characterised by periods of delay?

81. [81]
    The delay has been explained above. It is not continual delay in the litigation – but that is because the litigation has not progressed very far.
82. [82]
    However, it is likely that, if the proceeding does continue, there will be some further delays. The proposed pleading is a rather elegant document. However, it cannot disguise that further valuation evidence will be needed to support the claim and that some expert evidence will be needed to identify, exactly, the criticisms of Mr Trevorrow’s conduct.

Is the delay attributable to the plaintiff, the defendant or both?

83. [83]
    The delay is entirely attributable to Mr Oldmeadow.

Impecuniosity

84. [84]
    No question of impecuniosity arises here.

Whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim

85. [85]
    Given that the relevant events occurred between 2014 and 2016, the likelihood is that, unless Mr Oldmeadow succeeds in his applications, his claim would not be able to proceed due to limitation problems.
86. [86]
    That factor, of course, means that there are serious and likely permanent consequences if Mr Oldmeadow’s three applications fail.

How far the litigation has progressed

87. [87]
    The litigation is not very far progressed. A proposed statement of claim is part of the material considered for these applications. It seems likely that pleading is some distance from being the final pleading for Mr Oldmeadow.
88. [88]
    Of course, if the case were well advanced, and if witness statements were likely to have been taken, that would be a factor in favour of granting leave to proceed. That is not the case here. The case is in a rather embryonic state.

The plaintiff or the plaintiff's lawyers’ dilatoriness?

89. [89]
    Where, as in this case, the exchanges between lawyers and client remain protected by legal professional privilege, it will always be difficult to assess whether the dilatoriness lies at the feet of the client or the client’s lawyers. However, it can be seen that Mr Oldmeadow changed solicitors, and he acted for himself for a short time. He was entitled to terminate his solicitors’ retainers, but he must have recognised that doing so will often cause some delay.
90. [90]
    Ultimately, as the discussion above shows, the principal reason for the delay seems to have been that Mr Oldmeadow lost focus on the proceeding. His presence in Hawaii coincided with some loss of focus. He accorded the proceeding less priority than UCPR rule 5 requires.

Prejudice

91. [91]
    Mr Trevorrow is 76 years of age and wishes to retire. These proceedings would constitute a considerable burden on him. It will be necessary for him to revisit events that occurred between 2014 and 2016. And, given the embryonic stage of the proceedings, and the fact that Mr Trevorrow has little documentation,^[38] it is not hard to imagine that he will be some years older by the time the case is tried and concluded. Already he says his memory is not what it was.
92. [92]
    The extensive passage of time alone prejudices the possibility of a fair trial. Mr Trevorrow relies on the well-known passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor, a passage which is regularly referred to by the courts:^[39]

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

93. [93]
    It is true that Mr Trevorrow has alerted his insurers to the claim. However, it should not be assumed that the insurance will necessarily respond to the claim. And, of course, in defending the claim the insurers will rely on Mr Trevorrow to provide detailed instructions on, among other things, the commercial and other considerations that underpinned the lease and sale transactions he entered into in the period 2014 to 2016, and the decisions made as to distribution of the proceeds.^[40] That is not likely to be an easy task. The nuances of those business decisions are likely to be difficult to re-construct, as is the alleged involvement of the staff of the Public Trustee.
94. [94]
    No witnesses are said to have died but, because of the early stage of the proceeding, even the identification of relevant witnesses is not yet complete.
95. [95]
    In the circumstances I think that there is some likely prejudice and appreciable risk to the prospect of a fair trial.

Conclusions

96. [96]
    Considering all of those factors, the applicant has failed to satisfy the court that grounds exist for exercising the discretion in its favour and to allow an action to proceed despite the general prohibition against an action continuing in which no step has been taken for two years.
97. [97]
    Of particular significance is the risk that the delay poses to a fair trial and the inadequate explanation for the delay.
98. [98]
    It remains to deal with the other three applications before the court.
99. [99]
    There is the application by Mr Oldmeadow for an extension of time within which to comply with the guillotine order made by Callaghan J on 29 July 2022. The order required both the filing and service of the application. The filing occurred within time. The service did not occur within time – by a margin of a little less than two hours. If that were the only relevant circumstance, there would be little problem in extending time. The problem is the context, which is explained above. In particular, there was a very significant delay, 21 or 25 adjournments, and then Callaghan J afforded Mr Oldmeadow a final opportunity to progress the case. That was the order that was breached.
100. [100]
     Of course, the power to extend time under UCPR rule 7 is a remedial provision conferring on the court a broad power to relieve against injustice, but a power to be exercised with caution and, in the case of guillotine orders, with due regard to the public policy centred in the finality of litigation and the principle that orders are made to be observed.^[41] Here, for the reasons explained, it is difficult to see how extending the time for compliance will relieve against injustice. Instead, extending the time will permit the case to proceed in circumstances where it has stalled at the barrier, the delay is not adequately explained, and there is a risk of prejudice and a risk to a fair trial.
101. [101]
     In proceeding number 11072/22 Mr Oldmeadow makes an application for an extension of the relevant limitation period under s 59(7) of the GAA. That section merely provides that the tribunal or a court may extend the application time. The factors relevant to the discretion are those discussed above. For the same reasons this application should be refused.
102. [102]
     On the same basis, Mr Trevorrow’s cross application to dismiss the proceeding for want of prosecution under UCPR rule 280 should be allowed.
103. [103]
     I will hear the parties on costs.