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Mansour t/as Quick Start Mechanical and Performance v Cilliers[2014] QDC 175

Mansour t/as Quick Start Mechanical and Performance v Cilliers[2014] QDC 175

DISTRICT COURT OF QUEENSLAND

CITATION:

Mansour t/as Quick Start Mechanical and Performance v Cilliers [2014] QDC 175

PARTIES:

HAZIM MANSOUR t/as QUICK START MECHANICAL AND PERFORMANCE
(ABN 67355747449)
(plaintiff)

v

RUSSELL WILLEM CILLIERS
(defendant)

FILE NO/S:

93/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

22 August 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

8 August 2014

JUDGE:

Smith DCJ

ORDER:

  1. The defendant’s application for summary judgment is dismissed.
  1. I order the plaintiff give further and better particulars of his claim in accordance with these reasons.
  1. The defendant’s application for security for costs is dismissed.
  1. The plaintiff’s application for summary judgment is dismissed.
  1. Liberty to apply.
  1. I will hear the parties on the question of any directions to be made and as to costs.

CATCHWORDS:

PROCEDURE – Applications for summary judgment – application for particulars – application for security for costs

CONTRACT – Restraint of Trade Clause – whether valid – whether breached by the defendant

Uniform Civil Procedure Rules 1999 (Q) Rr 155, 161, 292, 293, 670, 671, 672

Al–Shennag v Statewide Roads Ltd [2008] NSWCA 300

Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227

Elders Rural Services Australia Pty Ltd & Anor v Gooden [2014] QDC 110

Jaddcal Pty Ltd v Minson (No 3) [2011] WASC 362

James Hardie v Putt [1998] NSWSC 434

Lindner v Murdock’s Garage (1950) 83 CLR 628

Robson v Robson [2008] QCA 36

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Yandil Holdings Pty Ltd v Insurance Company of North America and others [1986] 7 NSWLR 571.

COUNSEL:

Plaintiff self–represented

Solicitors for the Defendant

SOLICITORS:

Plaintiff self–represented

Anne Murray and Co Solicitors for the Defendant

Introduction

  1. [2]
    This is an application by the defendant for judgment pursuant to UCPR 293.  Alternatively the defendant applies for further and better particulars; and security for costs in the amount of $40,000.
  1. [3]
    The plaintiff has applied also for summary judgment pursuant to UCPR 292.
  1. [4]
    I have taken into account the applicable principles, the evidence tendered and the submissions made in reaching my decision. I also note that onus of proof is on the party seeking to justify the particular order sought.

Applicable law

  1. [5]
    Rule 292 provides:

“292 Summary judgment for plaintiff

  1. (1)
    A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
  1. (2)
    If the court is satisfied that—
  1. (a)
    the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.”

  1. [6]
    Rule 293 provides:

“293 Summary judgment for defendant

  1. (1)
    A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
  1. (2)
    If the court is satisfied—
  1. (a)
    the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.”

  1. [7]
    In the Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227 Williams JA at [11] held:

“The words ‘no real prospects of succeeding’ do not need any amplification.  They speak for themselves.  The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to ‘fanciful’ prospect of success.”

  1. [8]
    In Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 it was said at [24]:

“The exercise of powers to summarily terminate proceedings must always be attended with caution.  That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.  The same applies where such a disposition is sought on a summary judgment application supported by evidence.  As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.’

More recently in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne & Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ and Agar v Hyde which included the following:

‘Ordinarily a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’”

The pleadings

  1. [9]
    The plaintiff originally claimed $163,812 for damages. In the original Statement of Claim filed on 1 October 2013, the plaintiff alleged that he and the defendant entered into a written employment contract on 22 August 2008 whereby the defendant agreed to work for the plaintiff as a diesel fitter for two years on a full-time basis.
  1. [10]
    The contract included the following term:

“The employee must not commence work for a client of the plaintiff to which his labour was being provided at the time of resignation, until after the end of the contract, being 22 September 2010.”

  1. [11]
    In para 5 it was alleged that from August 2008 until March 2009 the plaintiff entered into a contract to provide labour to John Holland Group Pty Ltd (“JHG”) at the BMA Blackwater Mine. The defendant worked at this mine. Further para 6 alleges that from 12 September 2009 until 10 November 2009 the plaintiff entered into a contract with John Holland to provide labour at the Isaac Plains Coalmine. The defendant worked there as well.
  1. [12]
    On 12 November 2009 the defendant advised the plaintiff that he was resigning from this contract as John Holland had offered him $600 more a week to work for them and that he was going to take a couple of weeks off to consider his career.
  1. [13]
    On or about 23 November 2009 the defendant stopped working for the plaintiff. It is alleged that at the time he was the only diesel fitter employed by the plaintiff. It is further alleged that John Holland did not require any further services of a replacement diesel fitter and accordingly damages for breach of contract by the defendant are sought.
  1. [14]
    An amended claim was filed on 3 April 2014. The claim for damages was increased to $166,056. The claim was further clarified.
  1. [15]
    On 1 May 2014 the defendant filed a defence in which he alleges:
  1. (a)
    He did on 13 November 2013 [sic] accept a written offer of employment from John Holland Queensland Pty Ltd (“JHQ”) and commenced employment with that company on 30 November 2009.
  1. (b)
    He did not breach the clause in the employment contract because JHQ was never a “client” of the plaintiff.
  1. (c)
    The defendant was never employed by JHG.
  1. (d)
    The sum claimed is excessive and unreasonable and not properly quantified.
  1. (e)
    The defendant was not restricted by the terms of the contract from commencing employment with JHQ.
  1. (f)
    The non-compete clause is void as the contract was at an end as at 16  September 2009; it imposed unreasonable restraint of trade on the defendant; in any event there was no breach as JHQ was not a client.
  1. [16]
    The plaintiff filed a reply on 15 May 2014 alleging that JHQ was a “client” for the purposes of the non-compete clause. And further alleges that the clause was a valid one (see para 9).
  1. [17]
    A second amended statement of claim was filed in the court on 29 May 2014. In this statement of claim it was alleged that the plaintiff’s client was John Holland Pty Ltd and that JHQ was a wholly owned subsidiary of John Holland Pty Ltd and in the result the defendant breached the non-compete clause.
  1. [18]
    In an amended defence filed on 26 June 2014, the defendant repeated its allegation that the defendant was not employed by a “client” of the plaintiff in breach of the non-compete clause. Further the term “client” was uncertain and in the result the clause is not enforceable.
  1. [19]
    Finally the plaintiff has filed another statement of claim on 12 August 2014 (after the hearing of argument in this matter). In this statement of claim it is alleged:
  1. (a)
    The Plaintiff commenced supplying the Defendant’s labour to John Holland Pty Ltd on 22 September 2008.
  1. (b)
    John Holland Pty Ltd operated as contractor at the BMA Blackwater coal mine.
  1. (c)
    For the purposes of the non-compete clause JHG and its associated companies were the “client” (para 8(b)).
  1. (d)
    On 13 October 2009 the defendant signed an employment agreement with JHQ and on 1 December 2009 he commenced to work for JHG in breach of the non-compete clause and thereafter he remained employed by John Holland Pty Ltd (see paras 9 and 10).
  1. (e)
    If the defendant was employed by JHQ his services were provided to the Isaac Plains Mine site and this was owned by John  Holland Pty Ltd trading as John Holland Mining which is a subsidiary of JHG (para 11). The defendant worked for the client through another company in breach of the non-compete clause.
  1. (f)
    The plaintiff then alleges that the defendant would be acting dishonestly if he claims he did not have a clear understanding as to who the client was (para 13).

Evidence on the application

Defendant’s material

  1. [20]
    Mr Rhett Peters the solicitor for the defendant has filed an affidavit sworn 14 July 2014. This affidavit encloses various correspondence sent to the plaintiff’s solicitors. Mr Peters also estimates that a trial of the action is likely to cost about $40,000.
  1. [21]
    He further swears that it is unlikely the plaintiff could satisfy any judgment relative to costs.
  1. [22]
    The defendant Russell Cilliers has sworn an affidavit dated 14 July 2014.
  1. [23]
    Mr Cilliers says that he was employed by the plaintiff in the capacity of a diesel fitter. He says that his employment was from 8 August 2008 to 24 November 2009. Exhibit RWC1 is a true copy of the employment contract between him and the plaintiff. The relevant clause states:

“Employee must not commence work for the client where QMP had been employed at the time of resignation, through another company or themselves until after the end of this contract end date (22 September 2010).”

  1. [24]
    Mr Cilliers says he resigned his employment with the plaintiff on 11 November 2009 and ceased worked for him on 24 November 2009. On 13 November 2009 he accepted an offer with JHQ as a diesel fitter and commenced employment with JHQ at the Isaac Plains Mine near Moranbah on 30 November 2009. RWC2 is a true copy of the offer from JHQ. Although his acceptance is dated 13 October 2009 he alleges in para 4 of the affidavit that that date is incorrect and was not actually accepted until 13 November 2009. He alleges that he did not communicate his acceptance of the offer until after he resigned his employment.
  1. [25]
    Turning to RWC 2 it is true that the offer of employment was said to be on behalf of “John Holland Queensland Pty Ltd”, however later in the offer (para 1.1) it is noted that he was “you are initially appointed by the company as Mineworker Level 2-Schedule 16 employee under the John Holland Group Workplace Agreement 2009-2014 Industrial Agreement.” The letter is signed by Scott Graham of JHQ.
  1. [26]
    The defendant alleges in para 5 that he was not working for the client of the plaintiff. He says that he never commenced employment with JHG but rather JHQ (see para 8). He says that he is not in breach of the non-compete clause (para 10).
  1. [27]
    He also says in para 11 that the term “client” is so broad as to be impossible to work out who this is. He says that he had been informed by his solicitors that an ASIC search of “John Holland” has yielded 36 entities which are potentially related to or associated with John Holland.

Plaintiff’s material

  1. [28]
    The plaintiff has sworn an affidavit dated 29 July 2014. In the affidavit he says he employed the defendant in the capacity of diesel fitter to service one of his client’s heavy earth moving equipment in the coalmining industry under the trading name “Quick Start Mechanical and Performance”. He says that the employment period began on 11 August 2008 under the terms and conditions of “Employment Conditions Agreement”. He alleges that the defendant gave his notice of resignation verbally on or about 11 November 2009 while he was engaged by the plaintiff’s client at the Isaac Plains mine site. 
  1. [29]
    He alleges that the defendant’s last day of employment was 24 November 2009 after which he commenced employment with John Holland Pty Ltd trading as John Holland Mining which is a 100% owned subsidiary of JHG. He further alleges that JHQ is also a 100% owned subsidiary of JHG.
  1. [30]
    The plaintiff alleges that the offer of employment with JHQ was accepted by the defendant on 13 October 2009, and indeed the defendant was not onsite on 14 November 2009 to sign the offer. He was onsite on 13 October 2009, which coincides with the acceptance date on the offer.
  1. [31]
    He also says in para 15 that the offer date (25 September 2009) coincides with the defendant being on days off from the Moseley mine.
  1. [32]
    The plaintiff also relies on correspondence from the Department of Justice and Attorney-General (Office of Fair and Safe Work Queensland) in which the defendant informed officers from that department that “he then commenced working for a client that your business was contracted to perform work for”.
  1. [33]
    The plaintiff alleges that once the defendant was aware of his intentions to bring an action against him, he changed his story and put forward an argument he was actually employed by JHQ (para 28). He alleges the defendant has failed to produce pay slips and bank statements that would show who was actually paying him (para 29).
  1. [34]
    The plaintiff also alleges that his contract was with John Holland on Isaac Plains through their initial trading name, Marshall Mining and Earthmoving, which changed to John Holland Mining (see para 36). He also invoiced John Holland Mining Pty Ltd (HM9) and which were paid by JHG (HM6).
  1. [35]
    In the result he alleges that the corporate veil should be pierced, and that in reality the defendant is employed by a client as contemplated by the contract of employment.
  1. [36]
    After the hearing was adjourned the plaintiff filed more material.
  1. [37]
    A business name extract for Marshall Mining and Earthmoving in Queensland notes that the business name holder was John Holland Pty Ltd. This ended on 23 September 2008.
  1. [38]
    Maree Wall in an affidavit sworn 11 August 2014 swears that:
  1. (a)
    She is a senior industrial inspector in the Department of Justice.
  1. (b)
    The Defendant lodged a complaint with the department against the plaintiff for withheld entitlements.
  1. (c)
    The defendant gave her the information contained in letters dated 7 December 2011 and 22 December 2011 (MW1 and MW2).
  1. (d)
    In the letter of 7December 2011 Ms Wall noted as the defendant “He then commenced working for a client that your business was contracted to perform work for”.
  1. [39]
    Finally the Plaintiff relied on The JHG workplace agreement. This document in para 1 notes that persons bound by that agreement are JHG and all persons employed by JHG as applied by clause 4.
  1. [40]
    The defendant in response to this material submitted in written submissions dated 14 August 2014:
  1. (a)
    The third amended statement of claim has confused the matter further.
  1. (b)
    The defendant clearly was employed by JHQ.
  1. (c)
    The industrial agreement does not form part of the employment contract.
  1. (d)
    The admission to Ms Wall cannot be relied on in light of the JHQ documents.
  1. (e)
    It is the plaintiff who has the onus to prove the validity of the restraint of trade clause.
  1. (f)
    The particulars in paragraph 16 and the claim for damages are inadequate.    

Submissions

Defendant’s submissions

  1. [41]
    The defendant in its submissions and in oral argument stated:
  1. (a)
    the term “client” is not defined in the employment contract;
  1. (b)
    the defendant accepted the offer of employment with JHQ on 13 November 2009;
  1. (c)
    the success of the plaintiff’s claim rises and falls on the plaintiff being able to establish that the term “the client” has an extended meaning and the defendant has no real prospects of convincing the court to adopt a broad definition of “the client”;
  1. (d)
    if the court is not satisfied this is a suitable case for the granting of summary judgment, the defendant seeks alternative orders for the delivery of further and better particulars and security for costs;
  1. (e)
    pursuant to the principles expressed in Lindner v Murdock’s Garage (1950) 83 CLR 628 prima facie all restraints on trade are invalid but such a clause may be upheld if the party seeking to enforce it shows that circumstances exist to make the restrain reasonably necessary (also see Elders Rural Services Australia Pty Ltd & Anor v Gooden [2014] QDC 110);
  1. (f)
    the wider meaning of the term “the client” cannot be sustained as employment contracts are subject to strict interpretation;
  1. (g)
    because of the vagueness of the term “the client” in the non‑compete clause the plaintiff has no real prospects of success.  In this regard the defendant submits that the amendments to the statement of claim show how the term “the client” is ambiguous;
  1. (h)
    in any event if an order for summary judgment is declined, aside from an order for particulars there should be an order for security for costs as the plaintiff’s prospects of success are marginal and the plaintiff has poor financial circumstances.
  1. (i)
    The plaintiff’s claim is bound to fail.
  1. (j)
    The defendant heavily relied on the decision in Elders v Gooden. 

Plaintiff’s submissions

  1. [42]
    On the other hand the plaintiff submits:
  1. (a)
    in argument he relied on an advice from Mr Webster, a barrister.  There was no objection to the tendering of this material to the court;
  1. (b)
    in the advice of Mr Webster it was opined, whilst it was for QMP to demonstrate that the restraint of trade clause was reasonable, this was a reasonable clause because it was limited in its application to an employee who resigned, it was limited in time, and it was limited in scope;
  1. (c)
    the clause went no further than necessary for the protection of QMP’s interests.
  1. [43]
    In oral argument the plaintiff submitted:
  1. (a)
    that the term “client” should not in this case be restricted to one entity;
  1. (b)
    in this case the defendant had acted dishonestly in that he had clearly accepted the offer of employment from JHQ on 13 October 2009 and he was trying to cover his tracks by alleging he signed it at a later date;
  1. (c)
    it would be wrong in the circumstances to have a limited meaning of the term “client”;
  1. (d)
    JHQ was intimately intertwined with JHG, and in reality the defendant was employed by the client;
  1. (e)
    the defendant has admitted to Ms Wall that he was employed by a client of the Plaintiff;
  1. (f)
    the workplace agreement in reality means the defendant is employed by JHG;
  1. (g)
    JHG was in reality the client of the Plaintiff; 
  1. (h)
    in all of the circumstances judgment should be entered in favour of the plaintiff.

Discussion

  1. [44]
    It is my conclusion after having considered the material and the submissions that this is a case which should go to trial.
  1. [45]
    Firstly, it seems to me reasonably arguable on the part of the plaintiff that this clause is a valid one. It seems to me arguable on the material that there is a realistic prospect of establishing at trial that the restraint of trade clause here was reasonable in that the defendant was the sole diesel fitter employed by the plaintiff; it was clearly for the genuine protection of the plaintiff’s interests that the clause was included, the activities restrained were no wider than necessary for the protection of the interest, and further the restriction was for a limited period.
  1. [46]
    In those circumstances it seems to me that it may be established that this was a valid restraint of trade clause.
  1. [47]
    For example in Jaddcal Pty Ltd v Minson (No 3) [2011] WASC 362 at [62] it was said

“A restraint of trade will be reasonable only if:

  1. the party in whose favour the restraint is given has a genuine interest requiring protection;
  1. the activities restrained are no wider than necessary for protection of that interest;
  1. the restriction is for a period no longer than necessary for the protection of that interest; and
  1. the restriction relates to a geographical area no larger than necessary for the protection of that interest”.
  1. [48]
    It seems to me that the clause considered in Elders v Gooden (supra) at p3-4 was a very wide one- arguably wider than the one to be considered here.
  1. [49]
    The next issue is whether the defendant is employed by a client of the plaintiff, in breach of the restraint of trade clause.
  1. [50]
    It seems to me on the material that there a triable issue as to this. The plaintiff’s invoices were delivered to John Holland Mining of P.O. Box 173, Blackwater (see HM1 and HM2). I note that Troy Mansfield was the maintenance superintendant of John Holland Mining (see HM4). I also note that it was JHG which paid the plaintiff for the services (see HM6). It also seems that John Holland Group Pty Ltd is a wholly owned subsidiary of Leighton Holdings Ltd (HM7).
  1. [51]
    I also note that the defendant was to be an employee under the John Holland Group workplace agreement (see RWC2). I also consider that the alleged admission made by the defendant to Ms Wall to be important.
  1. [52]
    It seems to me in those circumstances that there are real issues to be tried as to who exactly was the employer of the defendant and whether such an employer was the client of the plaintiff. It seems to me on the material that issue may only be resolved at trial. Credit findings may well have to be made on this point.
  1. [53]
    In any event there may be a real argument on the part of the Plaintiff that the corporate veil should be lifted here.
  1. [54]
    The corporate veil may be lifted where, for example, it is clear it is a mere façade or where fraud is involved (see, for example, James Hardie v Putt [1998] NSWSC 434; Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549 at 575 and Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 at [42]).
  1. [55]
    As I say, it seems to me that these are issues which should be the subject of evidence prior to a final determination.
  1. [56]
    In all of the circumstances I am not satisfied that the defendant has no real prospect of defending the matter. Equally I am not satisfied the plaintiff has no real prospect of establishing his claim. I will therefore dismiss both applications for summary judgment.

Further particulars

  1. [57]
    There is an application by the defendant pursuant to UCPR 161 for further and better particulars.
  1. [58]
    In my opinion, the application by the defendant here was well-founded. It seems to me that insufficient particulars had been given of paragraphs 6, 11, 12 and 13 of the second amended statement of claim. I consider in particular that insufficient particulars have been given as to the claim for damages. These problems remain with the third pleading.
  1. [59]
    As to paragraph 6 I consider the plaintiff should provide particulars of the factual basis of the alleged contract.
  1. [60]
    As to paragraphs 9, 10, 11 I consider the plaintiff should provide particulars of the factual basis of why he alleges the defendant was employed by his “client”. He should also plead the material facts giving rise to the conclusion that the corporate veil should be lifted in this case.
  1. [61]
    As to paragraph 16 I consider the plaintiff should provide particulars of the factual basis on which he relies to assert he would have continued to provide contracted services to John Holland Pty Ltd until at least 22 September 2010.
  1. [62]
    The damages claim is set out from paragraph 18 to 23. I consider the paragraph does not adequately particularise the damages claim (see UCPR 155). Firstly the measure of damages for breach of contract is a sum to put the plaintiff back into the position he would have been in had the contract been performed (see Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 per Mason CJ and Dawson J.)  Further of course there is a requirement on a plaintiff to mitigate his or her loss e.g. in this case by seeking other contracts.
  1. [63]
    The damages claim is defective. Firstly it is hard to see that it would extend past 22 September 2010. Secondly there appears no deduction for labour costs including wages, the cost of equipment and fuel. There is also the issue of taxation.
  1. [64]
    I will also order further and better particulars of the damages claim.

Security for costs

  1. [65]
    I have had regard to UCPR rr 670, 671 and 672 which provide as follows:

“670 Security for costs

  1. (1)
    On application by a defendant, the court may order the plaintiff to give the security the court considers appropriate for the defendant's costs of and incidental to the proceeding.
  1. (2)
    This rule applies subject to the provisions of these rules, particularly, rules 671 and 672.

671 Prerequisite for security for costs

The court may order a plaintiff to give security for costs only if the court is satisfied—

  1. (a)
    the plaintiff is a corporation and there is reason to believe the plaintiff will not be able to pay the defendant's costs if ordered to pay them; or
  1. (b)
    the plaintiff is suing for the benefit of another person, rather than for the plaintiff's own benefit, and there is reason to believe the plaintiff will not be able to pay the defendant's costs if ordered to pay them; or
  1. (c)
    the address of the plaintiff is not stated or is misstated in the originating process, unless there is reason to believe this was done without intention to deceive; or
  1. (d)
    the plaintiff has changed address since the start of the proceeding and there is reason to believe this was done to avoid the consequences of the proceeding; or
  1. (e)
    the plaintiff is ordinarily resident outside Australia; or
  1. (f)
    the plaintiff is, or is about to depart Australia to become, ordinarily resident outside Australia and there is reason to believe the plaintiff has insufficient property of a fixed and permanent nature available for enforcement to pay the defendant's costs if ordered to pay them; or
  1. (g)
    an Act authorises the making of the order; or
  1. (h)
    the justice of the case requires the making of the order.

672 Discretionary factors for security for costs

In deciding whether to make an order, the court may have regard to any of the following matters—

  1. (a)
    the means of those standing behind the proceeding;
  1. (b)
    the prospects of success or merits of the proceeding;
  1. (c)
    the genuineness of the proceeding;
  1. (d)
    for rule 671(a)—the impecuniosity of a corporation;
  1. (e)
    whether the plaintiff's impecuniosity is attributable to the defendant's conduct;
  1. (f)
    whether the plaintiff is effectively in the position of a defendant;
  1. (g)
    whether an order for security for costs would be oppressive;
  1. (h)
    whether an order for security for costs would stifle the proceeding;
  1. (i)
    whether the proceeding involves a matter of public importance;
  1. (j)
    whether there has been an admission or payment into court;
  1. (k)
    whether delay by the plaintiff in starting the proceeding has prejudiced the defendant;
  1. (l)
    whether an order for costs made against the plaintiff would be enforceable within the jurisdiction;
  1. (m)
    the costs of the proceeding.”
  1. [66]
    I have also had regard to Robson v Robson [2008] QCA 36 and Yandil Holdings Pty Ltd v Insurance Company of North America [1986] 7 NSWLR 571.
  1. [67]
    It seems to me, bearing in mind all of the material, that the plaintiff has a reasonable case to argue. If I was to order security, particularly in the sum sought, it seems to me it may stifle the proceedings brought by the Plaintiff here.
  1. [68]
    From the Bar Table the plaintiff informed me that he had been charged some $35,000 by his previous lawyers up until this stage.
  1. [69]
    In all of the circumstances, I do not consider the justice of the case requires the Plaintiff to provide security and in the exercise of my discretion I decline to make an order for security for costs.
  1. [70]
    I am prepared to make orders for directions for the future conduct of this matter including for ADR if the parties so agree.

Orders

  1. [71]
    In conclusion, I make the following orders:
  1. The defendant’s application for summary judgment is dismissed.
  1. I order the plaintiff give further and better particulars of his claim in accordance with these reasons.
  1. The defendant’s application for security for costs is dismissed.
  1. The plaintiff’s application for summary judgment is dismissed.
  1. Liberty to apply.
  1. I will hear the parties on the question of any directions to be made and as to costs.
Close

Editorial Notes

  • Published Case Name:

    Hazim Mansour t/as Quick Start Mechanical and Performance v Russell Willem Cilliers

  • Shortened Case Name:

    Mansour t/as Quick Start Mechanical and Performance v Cilliers

  • MNC:

    [2014] QDC 175

  • Court:

    QDC

  • Judge(s):

    Smith DCJ

  • Date:

    22 Aug 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300
2 citations
Jump To
Cite 1 - [2008] NSWCA 300
Cite 2 - [2008] NSWCA 300
Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549
2 citations
Jump To
Cite 1 - (1989) 16 NSWLR 549
Cite 2 - (1989) 16 NSWLR 549
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
2 citations
Jump To
Cite 1 - (1991) 174 CLR 64
Cite 2 - (1991) 174 CLR 64
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
4 citations
Jump To
Cite 1 - [2005] QCA 227
Cite 2 - [2005] QCA 227
Cite 3 - [2005] 2 Qd R 232
Cite 4 - [2005] 2 Qd R 232
Elders Rural Services Australia Ltd v Gooden (No 2) [2014] QDC 110
2 citations
Jump To
Cite 1 - [2014] QDC 110
Cite 2 - [2014] QDC 110
Jaddcal Pty Ltd v Minson (No 3) [2011] WASC 362
2 citations
Jump To
Cite 1 - [2011] WASC 362
Cite 2 - [2011] WASC 362
James Hardie v Putt [1998] NSWSC 434
2 citations
Jump To
Cite 1 - [1998] NSWSC 434
Cite 2 - [1998] NSWSC 434
Lindner v Murdock's Garage (1950) 83 CLR 628
2 citations
Jump To
Cite 1 - (1950) 83 CLR 628
Cite 2 - (1950) 83 CLR 628
Robson v Robson [2008] QCA 36
2 citations
Jump To
Cite 1 - [2008] QCA 36
Cite 2 - [2008] QCA 36
Spencer v Commonwealth of Australia [2010] HCA 28
2 citations
Jump To
Cite 1 - [2010] HCA 28
Cite 2 - [2010] HCA 28
Spencer v The Commonwealth (2010) 241 CLR 118
2 citations
Jump To
Cite 1 - (2010) 241 CLR 118
Cite 2 - (2010) 241 CLR 118
Yandil Holdings Pty Ltd v Insurance Company of North America (1986) 7 NSWLR 571
2 citations
Jump To
Cite 1 - (1986) 7 NSWLR 571
Cite 2 - (1986) 7 NSWLR 571

Cases Citing

Case NameFull CitationFrequency
Mansour t/as Quick Start Mechanical and Performance v Cilliers (No 2) [2014] QDC 1831 citation
1

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