Court of Appeal

Pittaway v Noosa Cat Australia Pty Ltd & Ors [2016] QCA 004 ; [2016]5 QLR (15/645) Morrison JA and Douglas and North JJ 2 February 2016

Full-text: QCA16-004.pdf

Catchwords

CONTRACTS – BUILDING, ENGINEERING, AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – where the applicant and the respondent entered into two linked agreements, the Shed Agreement, where the applicant would build a shed for the respondent, and the Boat Agreement, where the respondent would build a boat for the applicant – where the applicant contended that he built the shed, but that the respondent did not pay the full amount for it, nor did they build the boat as required by the agreements – where the applicant started proceedings against the respondent in respect of damages for breach of contract – where orders were made in the District Court – where the applicant did not comply with those orders – where the respondent made an application to dismiss proceedings for want of prosecution under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) – where that application succeeded – where the applicant seeks leave to appeal from the order dismissing the proceedings – whether an appeal is necessary to correct a substantial injustice – whether there is a reasonable argument that there is an error to be corrected

Summary Notes

Application for Leave s 118 DCA (Civil) – Contracts – where the applicant and the respondent entered into two linked agreements, the Shed Agreement, where the applicant would build a shed for the respondent, and the Boat Agreement, where the respondent would build a boat for the applicant – where the applicant contended that he built the shed, but that the respondent did not pay the full amount for it, nor did they build the boat as required by the agreements – where the applicant started proceedings against the respondent in respect of damages for breach of contract – where orders were made in the District Court – where the applicant did not comply with those orders – where the respondent made an application to dismiss proceedings for want of prosecution under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) – where that application succeeded – where the applicant seeks leave to appeal from the order dismissing the proceedings – whether an appeal is necessary to correct a substantial injustice – whether there is a reasonable argument that there is an error to be corrected – where Noosa Cat questioned whether the applicant was a qualified builder at the time of the work – where beyond asserting that there was no builder’s licence, and maintaining that stance in argument, Noosa Cat took no step to establish that there was no licence – where search results from the Queensland Building and Construction Commission (QBCC) revealed that the applicant held an Open Builder’s Licence from 30 August 2003 onwards; that covered the period when the shed was built; the search results stated that the records for that licence class were “at least 10 years old and cannot be displayed” – where on an application to strike out for want of prosecution under r 280 UCPR, the question of assessing the prospects of success is but one factor of many that must be weighed in the balance – where the assessment can only be provisional as such an application is not the trial and will not be attended by the level of evidence that a trial involves – where the Court must be careful not to let the application become a trial, nor to treat the differences in evidentiary detail as one might on a trial – where in this case there was a detailed pleading which was verified on oath – where the primary judge’s approach to the affidavit material placed undue emphasis on the absence of a blow for blow response, and thereby her Honour fell into error – where her Honour found that Noosa Cat had suffered prejudice relevant to the application to strike out: “I do not accept … that Noosa Cat has suffered no prejudice.” – where the only prejudice identified was the incurring of legal costs, as otherwise Noosa Cat did not contend that it could not have a fair trial – where it is only the prejudice caused by the relevant delay that is to be taken into account – where the learned primary judge did not correctly address the question whether or not the delay has resulted in prejudice such that there was an inability to ensure a fair trial. Application granted. Appeal allowed. Orders made on 19 December 2014 set aside. Respondent’s application filed 17 September 2014 refused. Costs.

Uniform Civil Procedure Rules considered

Rule 5 - Philosophy - overriding obligations of parties and courtRule 214(2)(e) - Disclosure by delivery of a list of documents and copiesRule 280 - Default by plaintiff or applicantRule 389 - Continuation of proceeding after delayRule 444 - Applicant's letter to respondent