Metar Pty Ltd v Hagan
[2004] QSC 462
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- Metar Pty Ltd v Hagan[2004] QSC 462
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Metar Pty Ltd v Hagan[2004] QSC 462
Metar Pty Ltd v Hagan[2004] QSC 462
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
JONES J
No 477 of 2004
METAR PTY LTD (ACN 009 984 8470) | Plaintiff |
and |
|
STUART HAGAN | First Defendant |
and |
|
PHOENIX LIME PTY LTD (ACN 096 355 761) | Second Defendant |
and |
|
KLEINHARDT FGI PTY LTD (ACN 061 015 272) | Third Defendant |
and |
|
HERB LAYT | Fourth Defendant |
CAIRNS
DATE 28/10/2004
JUDGMENT
HIS HONOUR: This is an application by the third defendant pursuant to rule 674 of the Uniform Civil Procedure Rules for the dismissal of the plaintiff's claim against the third defendant. The basis upon which that dismissal is sought is the plaintiff's failure to give security for costs pursuant to an order made by this Court on the 3rd of August 2004. That order required the plaintiff, within 28 days, to give security for costs to the third defendant in the sum of $25,000. The Court also ordered that the action be stayed in the event that the security for costs were not paid.
The plaintiff has not paid the security for costs in accordance with that order and has not come before the Court giving an explanation as to why the order has not been complied with nor giving any indication that the order might be complied with in the future.
This is an adjourned hearing of the third defendant's application, the matter having come on before me on the 19th of October 2004. I refused to deal with the application on that day essentially because the third defendant had not provided a notice of the application consistent with the requirements of rule 444, but at that adjourned hearing the legal representative on behalf of the third defendant had no instructions to either offer an explanation for non-compliance with the order nor indication of intention to pay.
I adjourned the application on that occasion not only for the reason that rule 444 had not been complied with but also to underline the natural reluctance of the Court to dismiss a claim pursuant to rule 674, which is tantamount to denying an impecunious plaintiff an opportunity to litigate the claim. In this instance, however, the claim made by the plaintiff against the third defendant appears to be not well founded, to be no more than tenuous. In my reasons in making the order for security for costs one of the considerations was that there was no evidentiary basis shown for the plaintiff's assertion that the third defendant was acting upon a retainer from the plaintiff. There was evidence that the third defendant was retained by another organisation altogether to do the work which the plaintiff alleged was being done on its behalf.
It is the rather dubious nature of the plaintiff's claim, coupled with the fact that it makes no attempt to explain its non-compliance with the order or to give any indication that the order might be complied with in the future, that causes me to accede to the application which is now made.
I will therefore order that the plaintiff's claim against the third defendant be dismissed. I order that the plaintiff pay the third defendant's costs, to be assessed on a standard basis, of and incidental to the third defendant's defence of the plaintiff's claim, and including the costs of and incidental to the application for security for costs and this application to dismiss the claim.