Davis v Walter Construction Group & Ors [2000] QSC 323

zf\14~ State Reporting Bureauscoo/ 3-;;._3 TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J No 17 of 1996 DOUGLAS MICHAEL DAVIS and WALTER CONSTRUCTION GROUP LTD Plaintiff (FORMERLY CONCRETE CONSTRUCTIONS PTY LTD) First Defendant and PERPETUAL TRUSTEE COMPANY LTD and REEF CORPORATE SERVICES LTD CAIRNS .. DATE 01/09/2000 JUDGMENT 1 th I ·11111r, Tht• I.aw Courts, (;('OI")..\~ Stred, Brish:111t•, Q ...t(HJO Second Defendants Td1:ph1111l': (07) J2...t7 -tJhO F:ix: (07) JZ-t7 .5.5..lZ -- 1 of 3 -- 01092000 D.1 T15/KEW M/T CNS611/2000 (Jones J) HIS HONOUR: This is an application by the defendant for the striking out of the plaintiff's application, and if successful for leave to discontinue its counterclaim in the action. The action was instituted to raise a claim pursuant to the Subcontractors Charges Act, in respect of which the sum of $91,064.88 has been secured by way of bank guarantee. The plaintiff was a subcontractor to the defendant for work associated with the construction of the Reef Casino in Cairns. The work was carried out in 1995 and the plaintiff has already been paid $1,160,230 for the work he performed. The details of the outstanding claim are not particularly relevant in the circumstances. The writ was issued on 21 February 1996 and a statement of claim delivered on 20 May 1996. The last step taken by the plaintiff appears to have been the delivery of further and better particulars of the statement of claim on 15 October 1996. It is almost four years then since the plaintiff has taken any step in the action, but more importantly the plaintiff has not been in contact with his solicitors now for a prolonged period. In fact the solicitors themselves have lost contact lC 30 40 with the plaintiff altogether, and had it not been for the 50 short term of notice given of this application, they would themselves have applied for leave to withdraw. This application has been brought on in less than the seven days necessary for them to make such an application. 2 JUDGMENT 60 -- 2 of 3 -- 01092000 D.l Tl5/KEW M/T CNS611/2000 (Jones J) This sort of delay in what is a commercial proceeding and for which no excuse is given causes obvious prejudice to the defendant. A trial to be taken after delay which will no doubt exceed five years were the matter allowed to proceed, would result in relevant evidence not being available to the defendant and also of course the financial impost of having the bank guarantee continue for an unconscionably long period. From the plaintiff's inaction over that lengthy period of time and lack of any explanation as to why the delay has occurred I have to have regard to the defendants' position and the prejudice which it obviously faces. I am concerned however, to give the plaintiff a further chance 10 20 to apply to set aside the order for striking out which I am 30 about to make. I do that on the understanding that the plaintiff's solicitors will renew efforts to make contact with him and to bring to his attention the order which I will make. My orders will be that unless the plaintiff applies within 28 40 days from today's date to set aside this order, the plaintiff's action will be dismissed for the want of prosecution. I give leave to the first defendant to discontinue its counterclaim and I order that the plaintiff pay the defendants' costs of and incidental to the action including the cost of this application to be assessed. Failing any variation of the order within 28 days I order that the bank guarantee be released. 3 JUDGMENT 50 60 -- 3 of 3 --