Burnitt & Anor v Pacific Paradise Resort Pty Ltd [2005] QDC 314

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[2005] QDC 314 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No BD1721 of 2004 PETER RAYMOND BURNITT AND TRACEY MAREE BURNITT Plaintiffs and PACIFIC PARADISE RESORT PTY LTD (ACN 098 002 763) Defendant BRISBANE ..DATE 12/10/2005 ORDER CATCHWORDS: Defendant's application to vacate trial dates (3 weeks ahead) set at callover 9 weeks previously refused, notwithstanding asserted unavailability of counsel and a witness, and delay in completion of a joint valuation report necessitated by a late amendment of a specific performance claim to add an alternative claim for damages. -- 1 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is a defendant's application to vacate the trial dates for the third and fourth of November 2005, fixed by the Chief Judge at a callover on the 9th of August 2005, for trial of the claim, which is not a particularly elderly one. If the Chief Judge had been more reliably informed of the circumstances I doubt that she would have set the matter down. It is unusually complex for what, on the face of things, might have looked like a cottage conveyancing matter concerning a townhouse at Mudjimba. It is located on the water, and one of a number of properties which the plaintiffs or some entity associated with them, constructed as part of some joint venture conducted through the defendant. Mr Burnitt is one of the defendant's directors, or was, along with a Mr Volpe, who seems to have been the man on the spot, and a Mr Marcocci, who is depicted as an absentee director, and lives in Melbourne. A request for trial date was signed in December last year, and the matter got on the callover. It is clear that appropriate courtesies recognising unavailability of counsel and of witnesses, including Mr Burnitt himself, on one occasion when he was out of the country for a couple of weeks in April, were extended so that the matter was not set down before both sides regarded themselves as ready. -- 2 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 The plaintiffs obtained from Judge O'Sullivan, on the 1st of August this year, leave to amend the claim, by adding to the existing claim for specific performance "Damages, costs and interest pursuant to the Supreme Court Act." It is clear from the attached amended statement of claim that the damages claim is there by way of alternative, should the Court decline (in the exercise of the discretion which it has) to grant specific performance, notwithstanding a case being made out for that relief. It would be reprehensible in the extreme for the plaintiffs to seek to convert their claim to one for damages alone, abandoning the specific performance aspect. On that basis, as Mr Laurie for the plaintiffs has said, the outcome of a trial might well have been that of specific performance being withheld on discretionary grounds, the matter being adjourned for the purpose of damages in lieu of specific performance being assessed. See Edward Street Properties Pty Ltd v Collins (1977) QdR 399. The late amendment of the claim to add a claim for damages is considerably less dramatic than Ms Hindman made it sound. Its effect was really to spell out a possibility which has always been there, perhaps also to save the plaintiffs from the actual outcome that the plaintiff in that case suffered. As I understand it, all that would be required would be evidence that some damage was suffered by the loss of the contract. Judge O'Sullivan's order required over and above -- 3 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 the timetable for pleadings, "that Herron Todd White conduct a joint valuation of the property, the costs of which are to be shared equally by the parties," no time limit being stated. The purpose of that valuation was to obtain evidence of the value of the property at the date of the contract, 7th of February 2003, or perhaps when settlement should have occurred. It is unusual in retrospect that the matter remained on the callover list because, with pleadings to be wholly replaced, further disclosure and the like, it really could no longer be said to be ready for trial. At the callover on the 9th of August, the lady representing the defendant revealed her understanding that the parties "were going to request that the matter be removed from the callover list." She said she had had no chance to speak to Mr McFarlane, representing the plaintiffs at the callover. He was urging that the matter be set down for two days. He informed the Chief Judge that the directions I have mentioned, "ought to be completed by next September." When the Chief Judge inquired about the last date by which something had to be done he responded, "It's about six weeks hence." The best laid schemes of mice and men gang aft a-gley and it turned out the nominated valuer was unwilling to accept the commission, likewise the parties' second choice, a third valuer, Mr Bob Henderson, has now been settled on. It appears from Mr McFarlane's affidavit that he is yet to look at the -- 4 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 property in question. He may do it next week. Mr McFarlane, in marked contrast to what the Chief Judge was told, is now tipping that by the end of next week he might have something from Mr Henderson - a month later than the Chief Judge was told and less than a fortnight before the trial. It is not at all appropriate to charge the plaintiffs with responsibility for what has gone wrong, but the whole situation is most unsatisfactory in retrospect. The plaintiff is anxious to retain the trial dates. The defendant does not want to and can propose as an alternative only dates from February next year - which involves a delay of three months, unacceptable in my view. It appears to be counsel's unavailability (also the situation for the 3rd and 4th of November) which dictates the dimensions of that delay. Ms Kennedy was at the callover without counsel's diary, the reason for which has been suggested above. It was ascertained on the following day that he would be unavailable and it is hardly commendable that it has taken so long to take any step in relation to that, given that the Chief Judge specifically reserved the situation in respect of availability of counsel when she set the matter down. It's not only counsel said to be unavailable for the trial dates fixed, but also Mr Marcocci. His affidavit indicates that he "is able to give evidence", but there's no particular reason for thinking that he can usefully give any evidence. If the position is he can, then Mr Laurie has committed his -- 5 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 clients to participate in any appropriate mode of dealing with that situation, such as by agreeing to telephone evidence or taking his evidence in advance of the trial. Mr Marcocci apparently is accustomed to travel overseas for some months at about this time of the year and proposes to do that again this year, favouring his travel arrangements over presenting himself at Court if, indeed, the conduct of the company's case requires that he do so. The third difficulty relied on by Ms Hindman (not counsel for the trial, but appearing today for the applicant defendants) - disclosure issues having, I think, gone away, given Mr Laurie's assurance that there is nothing not disclosed already and his assurance that there'll be no further amendments to pleadings - is the unavailability of the valuation. I have said something already to indicate that if necessary valuation matters could go off to another day after the trial. If Mr Henderson's report is unacceptable to the defendant and the time available to it for obtaining a further valuer's report is insufficient, I'm confident that the Court, if appropriate, would acknowledge that the interests of justice require some appropriate adjournment so that the defendant can put forward its best case. It may be that the whole trial has to be adjourned. I think the defendant is entitled to be treated, from here on, on the basis that it has been asserting that an adjournment is -- 6 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 appropriate. It hasn't made the point today, but future events may well prove that my judgment that the trial dates fixed should remain is unwise. It is reached against the background of the whole circumstances being unusually complex. This is much more than a cottage conveyance. I'm not purporting to give any accurate history of events, but the Court has heard that as one of the directors, Mr Burnitt agreed along with his wife to purchase one of the townhouses as did other directors with a view to creating an impression in the market that sales were being achieved. The price indicated in the contract of $250,000 was said to exceed a proper price, the deficiency being accounted for by a fictitious deposit, which I think was said to be $65,000. The players were astute to avoid depriving the Stamps Office of its maximum entitlements and arrangements were apparently made for the company to be responsible for paying the ad valorem duty levied by reference to consideration which was not truly paid. The Court has heard of a side letter which varied the underlying agreement (the legitimacy of which I understand the defendant to attack on various grounds including the omission of customary details). That side letter, I think, has something to do with delaying settlement until the outcome of Supreme Court litigation involving the protagonists. -- 7 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 8 ORDER 1 10 20 30 40 50 60 I don't know whether Mr Laurie has been too colourful, but he described the defence and counter claim, which seeks relief in the nature of rescission and associated declarations, as including every defence to a specific performance action that could conceivably be mounted. I make these comments simply to indicate that the Court does appreciate that the case is not at all a simple one, which makes it a serious thing to deprive the defendant of its counsel of choice, who has been in the matter since the request for trial date was signed; indeed, he's named there. He's not responsible for the pleadings, however. I hope I'm not placing too high a premium on seeking to preserve the integrity of listing arrangements made by the Court. While I expressed appreciation at the beginning of the hearing of the defendant's making this application now rather than on the eve of trial, it can also be said that if the Chief Judge's orders at the callover were to be reviewed that process ought to have been undertaken promptly, rather than waiting until about the 16th of September, which I understand happened. For one reason or another, litigants are from time to time deprived of the services of their counsel of choice. Events may pan out so that the defendant doesn't suffer that loss. On balance, I think that the trial date ought not to be vacated for that reason. -- 8 of 9 -- 12102005 T12/RAH22 M/T CMS114/2005 (Robin DCJ) 9 ORDER 1 10 20 30 40 50 60 I've indicated already that the witness situation, in relation to Mr Marcocci can be dealt with. So far as the valuation is concerned, I've also made comments about that. I think the defendant is entitled to a reasonable time nonetheless, and ought not to have to come to grips with a valuer's report on the eve of the trial. So my order will be that unless the valuer's final report is available to both parties no later than the close of business on the 21st of October 2005, the trial dates of 3rd and 4th November 2005 be vacated. That order is made without prejudice to the right of any party to make further application for adjournment of the trial. It's not appropriate at this juncture to adjourn it. I order under rule 250 that the valuer, Mr Henderson, be permitted to inspect the property referred to in the claim on 24 hours notice to the defendant and to the occupier. ----- -- 9 of 9 --