Brisbane Ship Constructions Pty Ltd v Sunrop Pty Ltd
[2013] QDC 228
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- Brisbane Ship Constructions Pty Ltd v Sunrop Pty Ltd[2013] QDC 228
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Brisbane Ship Constructions Pty Ltd v Sunrop Pty Ltd[2013] QDC 228
Brisbane Ship Constructions Pty Ltd v Sunrop Pty Ltd[2013] QDC 228
[2013] QDC 228
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 4873 of 2012
BRISBANE SHIP CONSTRUCTIONS PTY LTDPlaintiff
and
SUNROP PTY LTDDefendant
BRISBANE
11.53 AM, THURSDAY, 23 MAY 2013
JUDGMENT
CATCHWORDS | Uniform Civil Procedure Rules R 150(4)(c), 670 & 671 Corporations Act 2001 (Cth) s 1335 Pleadings - defendant ought not to have pleaded lease payment of a contract debt without particulars where the time of the payment could have been any time in a period of nearly six years and the alleged payment was made by a person other than it - security for costs sought against an apparently impecunious plaintiff company - court accepts personal undertaking of director to be responsible for ordered costs the plaintiff may fail to pay |
HIS HONOUR: There are two applications before the court on the plaintiff’s application, which is the second in time, the court makes an order in terms of the intialled draft. It requires that particulars be given of a payment which the defendant, in my view arguably inappropriately in light of rule 150 (4) (c), pleaded as a payment of $286,050 by it to the defendant in respect of contractual arrangements for the construction by the plaintiff of two vessels for it. It appears to have been known before the pleading, which is of recent date, having been filed on 18 February this year, that the defendant was fully aware that the payment was made by circuitous means through a Mr Dodd, or a company of his, he or it having been in due course reimbursed by the defendant.
The pleading gives no date of payment which might have occurred at any time over the long period, approaching the full duration of the limitation period, through which this matter has gone on, nor was there any suggestion made that any third person was involved in the payment. Mr Hollis, who was granted leave to represent the plaintiff company as a director of it, is entitled to the particulars he seeks. He is not entitled to the costs that he seeks, not being a lawyer.
The other application is by the defendant for security for costs. I have short-circuited this in a way that involves taking up an offer Mr Hollis has, in effect, previously made in correspondence. That makes him responsible for the costs, if his company can’t pay them.
That’s the order to be made. It corresponds with one that I made in Sven Payne Hospitality Management Pty Ltd v North Brisbane Sporting Association Incorporated [2008] QDC 81. I am reminded by Mr Wilson of counsel for the defendant that while it might have been thought in previous times that there was something approaching a principle, an undertaking to be responsible for costs by an individual would always justify a company whose ability to pay costs orders was problematic being allowed to proceed with no embarrassing order for security, which would lead to a stay until it was provided, being made. He referred to Specialised Explosives Blasting and Training Pty Ltd v Huddys Plant Hire Pty Ltd(2010) 2 Qd R 85; [2009] QCA 254; and also Base 1 Projects Pty Ltd v Islamic College of Brisbane Limited [2012] QCA 114. He referred also to Hyperion Technology Pty Ltd v Queensland Motorways Limited [2013] QSC 20.
Mr Wilson concedes that the court, in the position of the court today, still has a discretion to accept a director’s undertaking or equivalent, notwithstanding the Court of Appeal pronouncements that I have, on occasion, which I’ll attempt to identify here on revising these reasons. Proceeded in that way; Box Information Technology Pty Ltd v Crystalaid Manufacturing Ltd [2012] QDC 292 it’s appropriate to do it again. As to whether security ought to be required, the defendant can rely on statements in affidavits of Mr Hollis, to the effect that the plaintiff has closed its business pending the outcome of collecting debts due from the plaintiff and another client, and that the plaintiff is “cash-poor” as a result of the defendant being in default in respect of its contract obligations.
I appreciate that it’s not only the defendant being blamed for that situation. In an outline of submissions which Mr Hollis filed on behalf of the plaintiff on 4 February 2013, he opposed removal of the proceeding to Townsville, which he said “will frustrate proceedings as the plaintiff is impecunious, partly because of the defendant’s breach of contract.” This kind of material is enough, in my view, to justify the court’s determining to do something in the absence of persuasive material from the plaintiff to show that it could meet an order for costs. There is no reason to doubt that costs would be actually recoverable from Mr Hollis. I accept that there are assertions that the plaintiff has a facility organised with its bankers that might enable it to fund provision of security. The order on the defendant’s application, which is set out in the I’ll initial, is as follows.
- (1)I order that the proceeding be stayed until the filing of a deed signed by Michael John Hollis, undertaking to pay the defendant any costs in respect of the claim, as opposed to the counter-claim, that the plaintiff may after today be ordered but fail to pay it in this proceeding.
- (2)I order that the defendant’s costs of its application to be assessed – an application prior to 8 May 2013, which is otherwise dismissed, be its costs in the cause in respect of the claim.
The last thing I’ll mention is that Mr Hollis in his application sought quite unusual orders calculated to compel the defendant and/or its bankers to identify and preserve records to do with the $286,050 payment. In my experience, such orders would be unheard of, but Mr Hollis has been directed to rules 242 and following which offer a way of getting material that any bank might have that’s relevant.