Jayasinghe v Ratnasekera
[2006] QDC 123
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Jayasinghe v Ratnasekera[2006] QDC 123
Jayasinghe v Ratnasekera[2006] QDC 123
[2006] QDC 123
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2555 of 2005
LAKSHMAN SHANTHAKUMARA JAYASINGHE | Plaintiff |
and |
|
NIMAL ANTOTHNY DE SILVA RATNASEKERA | Defendant |
BRISBANE
DATE 26/04/2006
ORDER
CATCHWORDS | District Court of Queensland Act 1967 s 72, s 85 original claim based on plaintiff's excessive contributions as co-guarantor - plaintiff and defendant agreed to orders including transfer of claim to the Supreme Court, rather than agree to modest increase in the court's monetary jurisdiction to accommodate amendment of claim - amendment made to bring in new claims when plaintiff, faced with a defence and counterclaim bringing in wider transactions, became fearful of problems with an Anshun estoppel if he did not amend - arguments limited to costs, which were reserved |
HIS HONOUR: The parties are agreed that this proceeding should be transferred to the Supreme Court under Section 85 of the District Court of Queensland Act, that the plaintiff should be permitted to add the wife of the existing defendant as a defendant and to amend the statements of claim.
What is contentious is how the costs of the application should be dealt with. The plaintiff/applicant is suggesting they ought to be costs in the cause.
I propose to reserve the costs with apologies to the Supreme Court Judge who may be faced with dealing with them in the future. It would have been open to the parties under section 72 to agree to enlargement of the District Court's monetary jurisdiction so that the claim could have remained here.
What has happened, as Mr Kidston for the plaintiff explained from the Bar table, is that the scope of the proceeding has been expanded by reason of the matters raised in the defence and counterclaim which took things far beyond the confined scope of the plaintiff's original claim; it was for recovery of moneys paid out on a guarantee of performance of the defendant's obligations to the St George Bank.
Some of those obligations antedated or were otherwise independent of obligations which arose from a joint venture which the parties apparently established through a corporate vehicle to acquire premises and run an Indo-Sri Lankan restaurant there. The amended defence and counterclaim requires exploration of relations between the parties much broader than the statement of claim required. That has led the plaintiff and his advisors to become apprehensive that an Anshun estoppel point may be raised if matters in the wider arena are sought to be raised on some later occasion for the first time by the plaintiff.
The bringing in of the defendant's wife is attributable to her involvement in the expanded context. There is apparently at least one joint bank account involved in which she is one of the account holders.
Although Mr Kalyan is correct in saying that the plaintiff should be treated as knowing all along of these wider issues, I do not think it was incumbent on him to anticipate the Anshun or any similar difficulty in advance of the defendants raising the wider issues, understandably enough, as the basis of a set-off.
I think I have omitted to note in these reasons - and I apologise for the repetition if I have mentioned it - that the plaintiff's claim as proposed to be expanded, is not greatly in excess of the monetary jurisdiction of the District Court which from some points of view makes it regrettable that the proceeding not remain here. It is not a situation in which the Court is loathe to exercise its jurisdiction.
If costs were to be costs in the cause, as the plaintiff proposes, that strikes me as almost a guarantee that the plaintiff will get the costs. Mr Kalyan's proposal was that the costs be the defendant's costs in the cause so that the plaintiff would not get any costs, but the defendant might get his if ultimately successful.
It may have been a slip on Mr Kalyan's part not to indicate at the outset that his primary position was that the costs of the application should be ordered to be paid by the plaintiff now.
I do not think it would be just to deprive the plaintiff of any possibility of obtaining costs, and for that reason will reserve them, so the Court's orders are in terms of paragraphs 1, 2 and 3 of the plaintiff's application filed on the 12th of April 2006 and that the costs of and incidental to this application be reserved.
...
HIS HONOUR: I am grateful to Mr Kidston for supplying a draft order which incorporates, now that an amendment has been made to paragraph 4, what was foreshadowed. That order also substitutes Section 85 as the correct reference to the Act.