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  • Unreported Judgment

Parbery v QNI Metals Pty Ltd (No 5)

 

[2018] QSC 177

 

SUPREME COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

BOND J

 

SC No 6593 of 2017

 

STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ)
ACN 009 842 068

 

First Plaintiffs

QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068

 

Second Plaintiff

JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION)
ACN 009 842 068

 

Third Plaintiffs

QNI METALS PTY LTD

ACN 066 656 175

 

First Defendant

QNI RESOURCES PTY LTD

ACN 054 117 921

 

Second Defendant

QUEENSLAND NICKEL SALES PTY LTD

ACN 009 872 566

 

Third Defendant

CLIVE FREDERICK PALMER

 

Fourth Defendant

CLIVE THEODORE MENSINK

 

Fifth Defendant

IAN MAURICE FERGUSON

 

Sixth Defendant

MINERALOGY PTY LTD

ACN 010 582 680

 

Seventh Defendant

PALMER LEISURE AUSTRALIA PTY LTD

ACN 152 386 617

 

Eighth Defendant

PALMER LEISURE COOLUM PTY LTD

ACN 146 828 122

 

Ninth Defendant

FAIRWAY COAL PTY LTD

ACN 127 220 642

 

Tenth Defendant

CART PROVIDER PTY LTD

ACN 119 455 837

 

Eleventh Defendant

COEUR DE LION INVESTMENTS PTY LTD

ACN 006 334 872

 

Twelfth Defendant

COEUR DE LION HOLDINGS PTY LTD

ACN 003 209 934

 

Thirteenth Defendant

CLOSERIDGE PTY LTD

ACN 010 560 157

 

Fourteenth Defendant

WARATAH COAL PTY LTD

ACN 114 165 669

 

Fifteenth Defendant

CHINA FIRST PTY LTD

ACN 135 588 411

 

Sixteenth Defendant

cold mountain stud pty ltd

acn 119 455 248

 

Seventeenth Defendant

evgenia Bednova

 

Eighteenth Defendant

alexandar gueorguiev sokolov

 

Nineteenth Defendant

Zhenghong zhang

 

Twentieth Defendant

sci le coeur de l’ocean

 

Twenty-first Defendant

DOMENIC MARTINO

 

Twenty-second Defendant

MARCUS WILLIAM AYRES

 

First Defendant added by counterclaim

STEFAN DOPKING

 

Second Defendant added by counterclaim

BRISBANE

 

FRIDAY, 27 JULY 2018

 

JUDGMENT

BOND J:    In April of this year I made directions concerning disclosure which contemplated these steps:

  1. The plaintiffs would put forward a detailed proposal on 25 May. 
  2. The defendants would respond in detail on 22 June.
  3. The parties would meet on 29 June to discuss the proposals.
  4. On 6 July the parties would notify the Court of the terms of the proposed consent order or file an application to resolve the disputed aspects of the proposal that had been put forward. 

The plaintiffs complied with the direction and put forward a detailed proposal.  Only desultory response was provided by the defendants. 

Essentially, they were taking the view, as expressed in correspondence, that it was premature to deal with disclosure until pleadings had closed and until a recusal application, which had been foreshadowed, was brought and disposed of.  It is plain that it did not lie in the mouths of the defendants to take that stance.  An order had been made.  It had been in place for months.  The appropriate response, if the defendants wanted variation, was to approach the court and obtain that variation. 

The plaintiffs brought the application for an order, in effect, confirming and making applicable their proposal.  There not having been any compliance with orders it was, in my judgment, appropriate for them to treat the entirety of their proposal as ultimately disputed and to seek the order they seek. 

In one sense there is much to be said for the proposal from senior counsel for the plaintiffs that I should simply make the order that they seek with a costs order against the defendants and if the defendants ultimately do bring a properly informed mind to bear on the subject matter for disclosure and find that they ought to make some change or that some change is warranted, they can bring an application for variation. 

For their part, one of the defendants, Mr Palmer, whose position in relation to all the corporate defendants has been canvassed by me in previous judgments, submits, correctly, that he is – albeit well-resourced – a litigant in person with no legal training.  I have, in a previous judgment, described the impact of that consideration on the way in which I ought respond to that position and I take the same view as there expressed. 

He says that he had a number of other things on his plate concerning this litigation, namely, the appeal concerning the freezing order and taking steps to take advice and to make decisions consequent upon obtaining advice in relation to a recusal application.  He submits, from the bar table, that this is the first occasion where he personally has been involved in addressing the steps that must be taken in disclosure in a way such as my orders have required.  It does not appear that those reasons were the reasons that were put forward by him in responding to the plaintiffs’ entreaties.  He seeks an adjournment so that he may direct a properly informed mind to the considerations which are addressed by the plaintiffs’ application.  The other defendants join with him on that application.  It transpires that I can hear that application on Friday morning, 3 August 2018. 

The choice then is between making an order now and putting the defendants in a position to bring an application for variation or simply staying my hand on the question of what order should be made in disclosure until 3 August which is only a week hence.  I think the latter course is appropriate.  However, the plaintiffs should be held harmless so far as the costs are concerned. 

I will adjourn the plaintiffs’ application until 3 August 2018 at 10 am before me.  The defendants must pay the plaintiffs’ costs of the adjournment.  Otherwise the question of the costs of the plaintiffs’ application are reserved to be dealt with on 3 August 2018.  My reasoning for preferring adjournment is to ensure that in this complex litigation I actually receive assistance from the defendants as to the appropriate steps to be taken in relation to disclosure.  Those are the orders I make on the disclosure application.

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Editorial Notes

  • Published Case Name:

    Parbery v QNI Metals Pty Ltd

  • Shortened Case Name:

    Parbery v QNI Metals Pty Ltd (No 5)

  • MNC:

    [2018] QSC 177

  • Court:

    QSC

  • Judge(s):

    Bond J

  • Date:

    27 Jul 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 107 25 May 2018 Upon undertakings made by the Commonwealth, and the special purpose liquidators, freezing orders made with respect to the first, second, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth and fifteenth defendants: Bond J.
Primary Judgment [2018] QSC 125 25 May 2018 Application to stay orders made in [2018] QSC 107 for 21 days dismissed, save for orders 16 and 17 which are stayed until further order: Bond J.
Primary Judgment [2018] QSC 141 11 Jun 2018 Stay of operation of orders 16 and 17 ordered 25 May 2018 discharged; order 16 set aside and in lieu thereof order that each defendant must swear an affidavit setting out their assets and details about those assets: Bond J.
Primary Judgment [2018] QSC 176 27 Jul 2018 Defendants' agitation that nothing should be determined until a proposed recusal application heard and determined rejected: Bond J.
Primary Judgment [2018] QSC 177 27 Jul 2018 Plaintiffs' application for disclosure adjourned to 3 August 2018: Bond J.
Primary Judgment [2018] QSC 178 03 Aug 2018 Defendants' application for a stay of orders dismissed: Bond J.
Primary Judgment [2018] QSC 180 03 Aug 2018 Plaintiffs' application for disclosure granted: Bond J.
QCA Interlocutory Judgment [2018] QCA 139 26 Jun 2018 Fourth defendant's application to stay orders made in [2018] QSC 107 allowed in part and otherwise dismissed: Gotterson JA.

Appeal Status

No Status