Beattie & Beattie v Withers [1992] QSC 394

c State Reporting 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 R~\!tSED COPiES fSSU2D S:at3 ~~3~.c~~~!;tg Bureau .Date /3> 1 fLL3__ol_-z ( RYAN J ~ . .-/ No 3607 of 1988 .GEORGE and JOSEPHINE ANNE BEATTIE Plaintiffs and LOIS MAUREEN WITHERS Defendant c BRISBANE c .. DATE 09/11/92 JUDGMENT 1 -- 1 of 9 -- 091192 HIS HONOUR: I dismiss the defendant's application with costs to be taxed. I am satisfied that upon the statement of claim the plaintiff appears to be entitled to judgment against the defendant for damages to be assessed and I make an order in those terms. 10 I further order that the defendant pay the plaintiffs' costs of and incidental to the application to be taxed. I publish my reasons. 20 (J 30 0 40 () 50 60 JUDGMENT 2 -- 2 of 9 -- c c c IN THE SUPREME COURT OF QUEENSLAND o.s. No. 3607 of 1988 Brisbane. Before The Hon. Mr. Justice K.W. Ryan [Re: George Beattie & Josephine Anne Beatti~] BETWEEN: GEORGE BEATTIE and JOSEPHINE ANNE BEATTIE Plaintiffs LOIS MAUREEN WITHERS Defendant REASONS FOR JUDGMENT- RYAN J. Judgment delivered on 09/11/1992 Counsel: N.J. Thompson for Applicant J.B. Sweeney for Respondent Solicitors: Cranston McEachern & Co. T/A for Clinton R. Smith & Associates Anderson Bone & Bray T/A for Messrs O'Neil Owens. Hearing Date: 2 October 1992 -- 3 of 9 -- c IN THE SUPREME COURT OF QUEENSLAND o.s. No. 3607 of 1988 Brisbane Before The Hon. Mr. Justice K.W. Ryan [Re: George Beattie & Josephine Anne Beattie] BETWEEN: GEORGE BEATTIE and JOSEPHINE ANNE BEATTIE LOIS MAUREEN WITHERS REASONS FOR JUDGMENT - RYAN J. Judgment delivered on 09/11/1992 Plaintiffs Defendant On.3 August 1992, an order was made by Byrne J. that the defendant's defence be struck out, and that the defendant pay the plaintiff's costs of and incidental to the application to be C taxed. c By notice of motion filed on 1 8 September 1991., the plaintiff seeks to be granted judgment against the defendant for damages to be assessed. The writ in this action was issued on 26 September 1988. It claims specific performance of a contract for the purchase by the plaintiffs from the defendant of a home unit, and alternatively damages for breach of contract. On 6 October 1988, Dowsett J. ordered that the action be certified for speedy trial and gave directions. The statement of claim was delivered on 27 October 1988 and the defence in April 1989. The directions had required it to be delivered within 14 days from the delivery of -- 4 of 9 -- 2 the s ta temen t of claim. An amended statement of claim was delivered on 8 June, 1989. Notices for discovery were delivered on 1 3 December 1 988 and 9 May 1989, and requests for further discovery were made in October 1989 and September 1990. On 15 November 1990, a Master ordered by consent that the defendant file and serve a further affidavit of documents within 7 days. A request for further discovery was made on 14 April 1992, and a request for an amended affidavit of documents in April and June, 1992. A summons pursuant to 0. 35 r. 22 was issued on 24 July 1992, with a return date of 3 August 1992. The application was that the defendant's defence be struck out pursuant to 0. 34 r 22. It was supported by an affidavit of a solicitor for the plaintiffs, Mr. Chapman. I gave leave to the defendant at the hearing to apply for an order that the order of Byrne J. made on 3 August 1992 be set aside on three grounds: (a) That no notice under 0. 90 r. 9 was served on the defendant prior to the filing of the summonsi (b) that the summons seeking the order was not served on the defendant in accordance with the Rules of this Court; and (c) that the summons seeking the order was not served on the defendant on one clear day's notice as required by the Rules of this Court. In the alternative, application is made pursuant to 0. 45 r. 1 that an order be made that the defendant be discharged from the operation of the order of Byrne J. on the grounds that after the order was made, the defendant received its first notice of the plaintiff's intention to seek the order, and the 0 0 0 () -- 5 of 9 -- c 3 circumstances are such that it is just that the defendant be discharged. According to an affidavit by the solicitor for the defendant, the summons dated 6 July 1992 and the affidavit of Mr. Chapman were not served in accordance with 0. 65 r. 2 in that it was served by post pursuant to a letter dated 28 July 1992 addressed to his office at Surfers Paradise. The summons and supporting affidavit were received at his office on 31 July .1992. He states that the first opportunity he had to peruse the summons and supporting affidavit was on the afternoon of Monday, 3 August when he was processing his mail which was received on 31 July c 1992. c Mr. Smith, the solicitor for the plaintiff has deposed that he forwarded to the solicitors for the defendant on 28 July 1992 the summons and supporting affidavit. All mail forwarded from his office to solicitors practising at the Gold Coast is despatched by way of a courier. It is the practice of the courier to collect the documents from his office at 10.30 a.m. each working day. Accordingly they were collected by him at 10.30 a.m. on Wednesday 29 July 1992. He deposes that he believed the information given by the courier that they were received that afternoon by the solicitors for the defendants. On 21 April 1992, Mr. Smith had written to the defendant's solicitors, and advised that should he not be in receipt of a further affidavit of documents ordered to be delivered by a court order dated 15 November 1990 within five days, he would make application to order production. It was submitted for the defendant that no proceeding was taken in the cause for 18 months -- 6 of 9 -- 4 between 15 November 1990 and 24 July 1992. For the plaintiff, it was submitted that he had given a month's notice of his intention to proceed. I consider that notice of intention to proceed had been given, although the application made was different from that as to which notice had been given. But if this is not so, failure to give notice renders the slip an irregularity rather than a nullity. Perez v. Transfield (Old.) Pty. Ltd. [1979] Qd.R. 444; and as the application· by the defendant was not, in my opinion, made within a reasonable time, I refuse to set aside the order on the ground that no notice under 0. 90 r. 9 was served on the defendant prior to the filing of the summons. There is a conflict in the affidavits as to the time when the solicitor for the defendant was served with the summons and supporting affidavits. I consider that I should act on the basis that the summons and supporting affidavit were served on 31 July 1992, and that the summons was not served on the defendant on one clear day's notice as is required by 0. 65 r. 7. The consequence is that this failure is to be treated as an irregularity by 0. 93 r. 17, and it does not nullify the order made. It was not, in my opinion, a defect which was so fundamental as to entitle the defendant as of right, ex debito justitiae to have the order set aside. Compare Singh v. Atombrook Ltd. [1989] 1 All E.R. 385 at p. 392. Order 93 r. 18 provides that an application to set aside for irregularity any proceedings shall not be allowed unless it is made within a reasonable time. In this case, the order was made on 3 August 1992. The defendant's solicitor was aware later that day that 0 () () 0 -- 7 of 9 -- 5 the summons was to be heard on 3 August 1992, but did nothing as he believed that the plaintiffs would have sought an adjournment because they had not complied with the rules in relation to service. It might be thought that the reasonable and prudent course for him to pursue would be to check whether this had occurred without delay. A copy of the order made by Byrne J. was served on the defendant's solicitor under a covering letter dated 11 September 1992. On 28 September the notice of motion and affidavit in the present matter were served on the defendant's solicitors. It was only on the return date of the notice of motion, 2 October, that the application to set aside the order c=, of Byrne J. was made. Even making allowance for the extraordinary tardiness in proceeding in an action certified for a speedy trial, I consider that the application was not made within a reasonable time. A person complaining of an irregularity must come promptly and raise the point: Kinsell & Co. v. Harding, Ware & eo. [1918] K.B. 405 at p. 411. This was not done in this case. The defendant relied in the alternative upon 0. 45, r. 1. (: I assume that the defendant's solicitor did not discover that the application was being made until after the order was made. The defendant was thereupon entitled to apply for appropriate relief, namely the setting aside of the order. The rule gives me a discretion to grant such relief, but in my judgment the discretion should not be exercised in this case as the defendant has not made the application within a reasonable time. There may be circumstances where the mandatory requirement in 0. 93 r. 18 that the application should not be allowed unless it is made -- 8 of 9 -- -----~-~·-,"-- 6 within a reasonable time may be circumvented by applying under 0. 45 r. 1, but I see no such circumstances in this case. I dismiss the defendant's application with costs to be taxed. I am satisfied that upon the statement of claim the plaintiff appears to be entitled to judgment against the defendant for damages to be assessed, and I make an order in those terms. I further order that the defendant pay the plaintiff's costs of and incidental to the application to be taxed. 0 0 0 0 -- 9 of 9 --