Electrite Pty Ltd v Daniel NG & Associates Pty Ltd [2000] QSC 216

State Reporting sc oo/~16 Bureau 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 WHITE J No 3379 of 2000 ELECTRITE PTY LTD and DANIEL NG & ASSOCIATES PTY LTD BRISBANE .. DATE 11/05/2000 JUDGMENT -lilt Fl1111r, The L:iw C1111rts, George Stred, Brish:1111:, Q ..41)()() REVISED COPIES ISSUED State Reporting Bureau Date }- I b I -,-c- Plaintiff Defendant Tclcplinnc: ((l7) J2-17 -1360 F:ix: (07) .12-17 55.1! -- 1 of 5 -- 11052000 T3/KC25 M/T 7531/2000 (White J) HER HONOUR: This is a special application which has been brought on to extend the time for the delivery of a notice to defend and defence. Tomorrow is the expiration of the 28-day period specified by the rules for the delivery of that pleading. Mr Daubney appears for the applicant defendant and Mr Wishart for the respondent plaintiff. The plaintiff's claim, on Mr Wishart's own concession, is a long and complex one. It arises out of a building agreement between the plaintiff and the defendant in respect of a cinema complex near Ipswich. The plaintiff was contracted to carry out the construction of certain works related to that complex. The document itself whilst recognisable as a typical building claim has this feature, that it has obviously been attended to with considerable care. It refers to many documents and many variations of claim set out in two lengthy schedules and to the pleadings themselves. It would be very difficult, I would have thought, to respond appropriately in terms of the approach that now is taken under the Uniform Civil Procedure Rules to matters of defence within the time limited by the rules, even if attended to promptly. 2 JUDGMENT 10 ~ 20 30 40 50 60 -- 2 of 5 -- 11052000 T3/KC25 M/T 7531/2000 (White J) Mr Hawley, the solicitor for the defendant, deposes to three bases upon which an extension of time for the delivery of the pleading should be made. He refers to the complexity of the action deposing that it involves claims in relation to 19 variations one of which includes a claim in respect of 10 approximately 40 sub-variations. He also deposes to the fact that between the date of service of the claim and the date for filing the defence there have been numerous public holidays including Easter which included Anzac Day and the Labour Day long weekend. The third matter to which he makes reference is his own personal situation in that he was away for three days during last week undergoing and convalescing from an eye operation. The consequences of that operation have been a slower recovery than he had anticipated and had he realised this he may well have delegated the work to another solicitor in his office. Mr Daubney has submitted that 28 days from today, should an extension of time be granted, would be necessary in order to attend to the equally complex defence which would be responsive to the statement of claim. This morning the defendant's solicitors wrote to the plaintiff's solicitors requesting an extension of time for the preparation of the defence. The plaintiff's solicitors responded that their instructions were that no extension 3 JUDGMENT r 20 30 40 50 60 -- 3 of 5 -- 11052000 T4/IRK13 M/T 7531/2000 (White J) would be granted and foreshadowed that should a defence not be filed and delivered that they may well receive instructions to enter default judgment. There are several things that Mr Wishart wishes to draw to 10 the Court's attention whilst recognising that it is likely that an extension of time will be granted. He submits that 28 days is an unnecessarily long time, that it doubles the time provided for in the Rules. He also draws attention to the fact that there is no real explanation in Mr Hawley's affidavit as to what has been happening in respect of the defendant's response to the claim during the 25 or so days which have elapsed. The only reference to any activity is a paragraph where Mr Hawley says that he believed that the client misunderstood him about the necessary instructions for a response to the claim and accordingly had not provided him with adequate instructions or a copy of each of the relevant documents. It certainly appears to me that the attention that should have been given to this matter, on receipt, just did not happen because the activity was apparently going to take place this week. Even someone not familiar with this matter would be aware that an enormous amount of work was needed to prepare an adequate defence. That goes more to the issue of costs than anything else. 4 JUDGMENT ~ 20 30 40 50 60 -- 4 of 5 -- 11052000 T4/IRK13 M/T 7531/2000 (White J) This is a matter where an extension of time ought to be granted. Had the defendant's solicitors approached the plaintiff's solicitors at a much earlier date it may well have been that there would have been some cooperation about the matter but to wait until the last day seems foolhardy in the extreme. One looks for cooperation between solicitors and if there is no sensible cooperation it is often reflected in an issue of costs. However, on this occasion, it seems to me, that there is no good reason why the plaintiff should not have its costs of the necessity to come to Court today at this late hour. However, I accept Mr Daubney's submission that this requires more than 14 days and there really seems to be no point in giving a lesser time which would simply require another application to the Court. Accordingly, I extend time to the defendant to deliver its notice of intention to defend and defence for 28 days from today. I further order that the defendant applicant pay the plaintiff respondent's costs of and incidental to the application today to be assessed unless agreed. 5 JUDGMENT 10 ~ 20 30 40 50 60 -- 5 of 5 --