Question: your firm has recently been engaged to act for prestige...
Your firm has recently been engaged to act for Prestige Pool Concreters Pty Ltd ACN 730 958 126 (‘PPC’), a successful Perth-based pool construction company. It has recently sacked its former lawyers, Cowan Top Lawyers, because of their mishandling of a District Court proceeding in which PPC was the plaintiff.
Cowan Top Lawyers has provided you with their file which includes the court documents and other materials. From reviewing the court documents and speaking to PPC’s Managing Director, Brian Goodman, you have ascertained the following.
In July 2018, PPC purchased a specialised concrete spray pump for $176,000 from KAK Equipment Pty Ltd ACN 128 300 937 (‘KAK’). KAK is a large company based in Melbourne that sells machinery and other equipment to the building and construction industry.
After delivery, PPC experienced problems with the pump’s operation. At first KAK attempted to resolve the issues, even arranging an on-site consultation in Perth with one of its mechanics. However, after about 3 months, KAK stopped responding to PPC’s calls, disagreeing that any operational issues with the pump were its responsibility.
PPC then engaged Cowan Top Lawyers, who sent a letter of demand, participated in an unsuccessful telephone negotiation, and then recommended that PPC commence proceedings.
On 18 January 2019 PPC commenced an action in the District Court of WA (CIV123 of 2019) against KAK claiming damages for loss and damage incurred as a result of the defendant's breach of contract or breach of the Australian Consumer Law (ACL) or, alternatively negligence. The Writ was served at KAK’s registered address, and KAK entered an Appearance on 5 February 2019.
Cowan Top Lawyers filed and served a statement of claim dated 8 March 2019 and on 18 April 2019, the lawyers acting for KAK filed and served a defence and an application for security for costs.
The application for security for costs was listed before a registrar in general chambers on 10 May 2019 and adjourned off to a special appointment on 11 July 2019. When the security for costs application was called on for the special appointment on 11 July 2019, both parties’ Counsel agreed that it should be adjourned sine die as the defendant was intending to bring an application for the action to be transferred to Supreme Court of Victoria.
An amended statement of claim was lodged on 17 June 2018 and an application to administer interrogatories was lodged by the plaintiff on 18 June 2018.
The proceeding became inactive on Friday 16 August 2019. In accordance with the relevant rules, the District Court Registrar advised both parties’ lawyers in writing that proceeding CIV 123 of 2019 had been placed in the Inactive Cases List. In late February 2020, Cowan Top Lawyers received advice that CIV 123 of 2019 had been dismissed for want of prosecution. Mr Goodman was copied with the correspondence in mid-March 2020, and before Easter approached your firm for advice.
The partner with whom you work rarely litigates in the District Court. She/he has asked you to prepare a memo explaining, by reference to the Rules, why PPC’s proceeding has been dismissed, what Cowan Top Lawyers’ obligations were with respect to the case, and what, if anything, a party to the proceedings can do about the dismissal. If there is any case law/judicial guidance about reinstating dismissed proceedings, she/he would like a summary of those cases if relevant.
Your partner has told you that he recalls that the District Court Rules 2005 were changed after some appeals in about 2013. She/he would also like you to examine those decisions and provide a short explanation about them.
Ultimately, she/he will be making a recommendation to this new client, so, any other contribution you can add to future directions will be well received.