Elan Boulevard Pty Limited v Dean & Ors [2014] QDC 23

DISTRICT COURT OF QUEENSLAND CITATION: Elan Boulevard Pty Limited v Dean & Ors [2014] QDC 23 PARTIES: ELAN BOULEVARD PTY LIMITED (Plaintiff) v DARREN JAMES DEAN AND OTHERS (Defendants) FILE NO/S: 572/2011 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland at Southport DELIVERED ON: Ex tempore 3 February 2014 DELIVERED AT: Southport HEARING DATE: 3 February 2014 JUDGE: Samios DCJ ORDER: 1. Order as per draft CATCHWORDS: PRACTICE - Certificate of readiness - Disclosure - Non- party disclosure - where there was a contract between the Plaintiff and the Defendants for the purchase of a unit off the plan - where the application by the Plaintiffs seeks to dispense with the requirement of the Defendants signing a certificate of readiness for trial - where consent orders were made in relation to the Defendants filing relevant documents and materials- where the Defendants had not filed an application in relation to notices of third party disclosure - where the Defendants did not file any application challenging the sufficiency of the Plaintiff’s disclosure or a further amended defence and counterclaim - whether the Defendants had a proper reason for failing to progress with the matter COUNSEL: No appearances on behalf of the Plaintiff No appearances on behalf of the Defendants SOLICITORS: Mr D Hodgson of Hickey Lawyers for the Plaintiff Ms ML Kershaw of Cronin Litigation for the Defendants [1] HIS HONOUR: The application before me today seeks to dispense with the signing -- 1 of 4 -- 2 of the certificate of readiness for trial by the Defendants. The Plaintiff is suing the Defendants for a failed contract to purchase a unit off the plan at the Hilton Project. Relevant parties have changed because of receivership of the Raptis Company. Nevertheless, the matter came on before His Honour Judge Wall on the 12th of September 2013. While not exhaustive, the basic allegation made by the Plaintiff is that the Defendants failed to settle the contract to purchase a unit in the development. The purchase price was for a substantial sum. It was resold, and there is a significant difference. Allegations are made by the Defendants though that there were misrepresentations made. In addition, there is an allegation there was no obligation to settle the contract. [2] Returning to Judge Wall’s order of 12 September 2013, that was by consent and it provided a timetable allowing the Defendants to file and serve any notices of non- party disclosure by 20 September 2013, and to file and serve any application challenging the sufficiency of the Plaintiff’s disclosure and any supporting affidavit material by 27 September 2013. Further, orders were made by consent, as they all were, that the Defendants file and serve any further amended defence and counterclaim by 25 October 2013, and the Plaintiff file and serve any further amended reply and answer by 1 November 2013. It was also directed that the parties attend a mediation on or before 29 November 2013. The application by the Plaintiff to dispense with the certificate of readiness was then adjourned to 13 December 2013. [3] A mediation did take place on 10 December 2013, but did not resolve the dispute. The matter has been adjourned again and comes on before me this morning, the 3rd of February 2014. Although on 20 September 2013 notices of non-party disclosure were -- 2 of 4 -- 3 filed on behalf of the Defendants, the Defendants have not filed any application regarding the notices of non-party disclosure. That is, there has been difficulty for the Defendants to obtain disclosure, but the matter has not progressed any further. Further, the Defendants did not file any application challenging the sufficiency of the Plaintiff’s disclosure by 27 September 2013 or at all. Further, the Defendants did not file any further amended defence and counterclaim by 25 October 2013 or at all. [4] The response by the Defendants today does not satisfy me that there has been a proper reason for the Defendants failing to progress the matter, as proposed by the consent orders made by His Honour Judge Wall on 12 September 2013. In fact, I have a draft order before me from the Defendants which has a program for the Defendants to pursue non-party disclosure and to challenge the Plaintiff’s disclosure, the effect of which, to my mind, will extend the matter out to a point about 30 May 2014. Bearing in mind that the original application brought by the Plaintiff was filed on 29 July 2013, if I agreed to make orders as proposed by the Defendants today, the Defendants will have had over a year to pursue what they claim they need to be able to properly engage experts, in addition of course to knowing the case they have to meet. [5] It seems to me that as the Defendants have not put forward a proper reason for not having pursued the matter as contemplated and seek a further indulgence that I should make the directions sought, giving the Defendants another opportunity to pursue what the Defendants say is outstanding. However, I put the Defendants on notice that effectively they have been making assertions rather than presenting evidence to the Court as to why they have not progressed the matter as contemplated by the orders made by His Honour Judge Wall on 12 September 2013. And even after that there has -- 3 of 4 -- 4 been no satisfactory pursuit of what the Defendants claim they need by way of expert evidence. That is, I do not accept it follows that they necessarily have to have disclosure by the non-parties or by the Plaintiff to at least commence to engage an expert or experts. Had they done so they might have been able to exhibit their efforts to that point in time to show that there might be substance in the complaint being made in the defence to the Plaintiff’s claim. [6] Therefore I have come to the view this matter comes down to one of costs in the end; that is, I am prepared to make directions sought by the Defendants in the draft order that has been put before me. However, I do consider in all the circumstances the Defendants should pay the Plaintiff’s costs of and incidental to the application, including the reserved costs of the application to be assessed on the indemnity basis. I do that because I am not satisfied by the Defendants by way of evidence as to any proper reason for not having progressed the matter as they could have, and that any further directions that I now make will extend the matter and lead to a situation where effectively the complaint of the Plaintiff has gone unanswered for nearly a year. [7] I am reserving the position, that is, as to any outcome of the Defendants’ applications to a later date, in the sense that someone might be able to see at a later date whether the Defendants have failed or not failed to not properly pursue the matter. But at this stage I think there should be an order for costs. Therefore there will be an order as per the draft, initialled by me and left with the papers. -- 4 of 4 --