Emca Pty Ltd, Casey, Emerson & Emerson v Discovery Bay Developments Pty Ltd [1991] QSC 57

IN THE SUPREME COURT OF QUEENSLAND Before Senior Master Horton Q.C. BETWEEN: EMCA PTY. LTD. AND: No. 2376 of 1989 First Plaintiff LISA MAREE CASEY, JOSEPH FRANCIS EMERSON and WILMA LUCY EMERSON Second Plaintiffs 0 AND: DISCOVERY BAY DEVELOPMENTS PTY. LTD. 0 Defendant EXTEMPORE REASONS - SENIOR MASTER HORTON O.C. Delivered the Twelfth day of March, 1991 These matters have had a most unfortunate history that compared and contrasted to many of the cases with which I am Q forced to deal, this unfortunate history is of comparatively brief duration. The breadth of the material before me disguises, in my view, the fact that this is an application to amend an unfortunately inadequate pleading which, in each case, was delivered in early 1990. By July, 1990, the plaintiffs had terminated the retainer of their former solicitor and a proposed amended pleading had been supplied to the defendants. C_ontrary to the thorough and able submissions of Mr. Bain of counsel, I am far from persuaded that the amendments raise any new sets of ideas and in particular I am not persuaded -- 1 of 3 -- that even on the tests set out in Jobbins v. Capital Court Corporation 91 A.L.R. 314 at 319 that there is any difficulty 'i I· or complicated question of limitations pursuant to s.52 of the 0 0 0 Trade Practices Act arising. In short, in my view, the applications are nothing more than applications to place in order relatively, lengthy pleadings in terms of a proper (albeit not final) set of particulars. In any event were there to be a question of a time bar arising with respect to the s.52 matter, the issues are such that I would be minded, in view of the terms of the prayer for relief in the initial pleading, to exercise my discretion in favour of the applicants in any event. Accordingly therefore, in each case, I grant leave to the applicant plaintiffs to amend their statement of claim in terms of the proposed amended statement of claim delivered 24th July, 1990 together with the additional relief pleaded or set · out in the sheets described in each case as "Proposed Amendments". I have been asked to impose terms which at best could be Q described as draconian. Certainly the defendant has of July last year come to this application without fault. There have been costs thrown away as a result of my allowing the amendments and in my view these must be paid by the present applicant. It is of course for the Taxing Master to be persuaded that they are as extensive as those deposed to in the affidavit of Mrs. Milner, but, speaking for myself, I cannot see that the costs could have reached such a level. -- 2 of 3 -- I lJ 0 0 0 With respect to the application for today's costs by both parties, it seems to me that the defendant as of July last year was entitled to resist the applications notwithstanding the provisions of the Practice Directions. However, in my view, a defendant in the position of the present defendant here acting reasonably and desirous of having this case disposed of with expedition, was entitled to resist the application to the extent that the application was one susceptible of being dealt with in the normal commercial causes list. Accordingly, I order the applicant plaintiff to pay the respondent defendant's costs of and incidental to this application to be taxed on the basis that it was an application in commercial causes limited to and disposed of within twenty minutes of argument. I order as per draft initialled by me and placed with the papers. I direct that a further amended statement of claim in terms of the amended statement of claim of 24th July, 1990 Q together with the further amendments proposed in the draft to which I have earlier referred, be delivered in each case on or before 4 p.m. 15th March, 1991. Review in commercial causes 19th March, 1991. -- 3 of 3 --