PR Trading (Qld) Pty Ltd v Jezer Construction Group Pty Ltd
[2007] QDC 76
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- Unreported Judgment
- PR Trading (Qld) Pty Ltd v Jezer Construction Group Pty Ltd[2007] QDC 76
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PR Trading (Qld) Pty Ltd v Jezer Construction Group Pty Ltd[2007] QDC 76
PR Trading (Qld) Pty Ltd v Jezer Construction Group Pty Ltd[2007] QDC 76
DISTRICT COURT OF QUEENSLAND
CITATION: | PR Trading (Qld) Pty Ltd v Jezer Construction Group Pty Ltd and Anor [2007] QDC 076 |
PARTIES: | PR TRADING (QLD) PTY LTD (Plaintiff) AND JEZER CONSTRUCTION GROUP PTY LTD (First Defendant) AND COMPTON’S VILLAGES AUSTRALIA PTY LTD (Second Defendant) |
FILE NO/S: | D1355/99 |
DIVISION: | Civil |
PROCEEDING: | Application pursuant to Court Funds Regulation 1999 |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 20 April 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 April 2007 |
JUDGE: | Nase DCJ |
ORDER: |
2. That the registrar send a copy of this order to Tucker & Cowen, Solicitors, of level 15, 15 Adelaide Street, Brisbane. |
CATCHWORDS: |
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COUNSEL: |
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SOLICITORS: |
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- [1]This is an ex parte application by Gregory Melville Raedel and Kathleen Theresa Raedel pursuant to s 31 of the Court Funds Regulation 1999 (the Regulation).
- [2]The applicants are the plaintiffs in District Court plaint D1291/99 (Gregory Melville Raedel and Kathleen Theresa Raedel v Jezer Construction Group Pty Ltd and Compton’s Village Limited and Michael Wai Man Choi, Doris Ngie Lik Choi (aka Doris Ting) and Peter Graham Schmith). The plaintiffs’ action (D1291/99) is set down for hearing on 6 August 2007.
- [3]I should explain how the application arose. Under the Regulation, on 1 April each year the registrar is required to prepare in the approved form a list of all monies paid into court which have remained inactive for a period of six years. Under the Regulation, the registrar is required to display and publish the list (to allow any person claiming an entitlement or interest in the moneys to apply for an order the money, or part of the money, be paid to them). In the absence of any claim, the moneys in the inactive accounts are to be paid into the consolidated fund.
- [4]Included in the list published this year was a sum which is part of a larger sum originally paid in on 21 May 1999. As best I can work out, the original payment was made under the Subcontractors Act for the benefit of four subcontractors (one of whom is the present applicant, or, more correctly the present applicants stand in the shoes of one of the subcontractors). I was told the claims by the other subcontractors are settled.
- [5]From Mrs Raedel’s affidavit, again as best I can work out, Ramaville Pty Ltd (in whose place the present applicants stand) lodged a formal charge under the Subcontractors Charges Act 1974-1976 in respect of the moneys on 4 February 1999.
- [6]Judge McGill SC in an interlocutory judgment in the applicants’ action (D1291/99) seems to have recognised the existence of the applicants’ charge.[1]
- [7]The complication in making any order is that Jezer Construction Group Pty Ltd (Jezer) applied for and obtained an order for the money to be paid into its solicitor’s trust account.
- [8]That order was made on 12 April 2007 on the papers.
- [9]The material on which the judge acted in directing the moneys be paid to Jezer was primarily an affidavit from the sole director of Jezer, a Mr Peter Schmith.
- [10]In his affidavit, Mr Schmith set out briefly the history of the claims of the other subcontractors who had lodged charges over the moneys. Mr Schmith then concluded in paragraph [12] as follows:
“I am unaware of any person or entity other than those identified in this affidavit (being the plaintiff herein, Aussie Cabinet Co Pty Ltd and Gavin Wright) who have any right or claim to the balance of these moneys.”
- [11]In so informing the judge, Mr Schmith apparently overlooked the charge lodged by Ramaville Pty Ltd and its (the present applicants’) action against Jezer.
- [12]I have had limited time to come to grips with the applicants’ claim, but clearly enough the applicants assert an interest in the moneys which derive from the charge originally lodged back on 4 February 1999.
- [13]In the circumstances, the best course is for the moneys to be retained and not paid out until the determination of the applicants’ action against Jezer. At that time, the validity of the applicant’s claim to a charge over the moneys should become clear.
- [14]Accordingly, the following orders are made:
- That the order made on the papers on 12 April 2007 in these proceedings that the balance of moneys paid into court by the second defendant together with all accretions thereto be paid out to the trust account of Tucker & Cowen, Solicitors, for the first defendant be stayed until the determination of action D1291/99 Gregory Melville Raedel and Kathleen Theresa Raedel v Jezer Construction Group Pty Ltd and Compton’s Village Limited and Michael Wai Man Choi, Doris Ngie Lik Choi (aka Doris Ting) and Peter Graham Schmith or until otherwise ordered by a judge.
- That the registrar send a copy of this order to Tucker & Cowen, Solicitors, of level 15, 15 Adelaide Street, Brisbane.
Footnotes
[1]Raedel v Jezer Construction Group Pty Ltd and Ors (2002) QDC 079 at para [4].