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Queensland Shellfish Pty Ltd v Sparks[2021] QSC 131

Queensland Shellfish Pty Ltd v Sparks[2021] QSC 131

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Shellfish Pty Ltd v Sparks & Others [2021] QSC 131

PARTIES:

QUEENSLAND SHELLFISH PTY LTD AND AS TRUSTEE FOR THE SHELLFISH FARM TRUST

(ACN 146 375 733)

(Plaintiff)

v

GRANT DENE SPARKS IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF QUEENSLAND SEA SCALLOPS PTY LTD (IN LIQUIDATION) (ACN 135 086 823) AND IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF QUEENSLAND SEA SCALLOPS PTY LTD (IN LIQUIDATION)

(ACN 135 086 823)

(First Defendant)

and

MICHAEL ANDREW OWEN IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF QUEENSLAND SEA SCALLOPS PTY LTD (IN LIQUIDATION) (ACN 135 086 823) AND IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF QUEENSLAND SEA SCALLOPS PTY LTD (IN LIQUIDATION)

(ACN 135 086 823)

(Second Defendant)

and

PPB PTY LIMITED (ACN 130 343 252)

(Third Defendant)

FILE NO/S:

4943 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

3 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill J

ORDERS:

  1. The proceedings be dismissed pursuant to Rule 674(c) of the Uniform Civil Procedure Rules 1999 ; and
  2. The plaintiff pay the defendants’ costs of and incidental to the proceedings on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – EFFECT OF NON-COMPLIANCE WITH ORDER FOR SECURITY – application to dismiss proceeding where security not given in accordance with order made more than two years ago

COUNSEL:

SOLICITORS:

Mills Oakley, for the defendants

  1. [1]
    On 13 February 2019 Boddice J made an order requiring the plaintiff, within 21 days, to give security for the defendants’ costs of the proceedings in the sum of $100,000, in a form satisfactory to the Registrar of the court and, in default, that the proceeding be stayed until further order.
  2. [2]
    The plaintiff has not complied with that order and, in fact, has not taken a step in this proceeding since November 2018 (when an amended statement of claim was filed).[1]
  3. [3]
    On 12 May 2021, the defendants applied for an order that the proceedings be dismissed, pursuant to r 674(c) of the Uniform Civil Procedure Rules 1999 (Qld).  That rule provides:

674  Stay or dismissal

If the court orders the plaintiff to give security for costs —

  1. (a)
    the time set by these rules or by an order of the court for another party to take a step in the proceeding does not run until the security is given; and
  2. (b)
    if security is not given under the order—the proceeding is stayed so far as it concerns steps to be taken by the plaintiff; and
  3. (c)
    the court may, on the defendant’s application, dismiss all or part of the proceeding.”
  1. [4]
    The application came before me for hearing on 20 May 2021.  
  2. [5]
    The application and supporting affidavit had been served on the solicitor on the record for the plaintiff, Armeli & Molony Lawyers, as well as their town agents, Bennett & Philp, by email on 12 May 2021.
  3. [6]
    Quite late the evening before the hearing, Mr Molony of Armeli & Molony Lawyers sent an email to the applications list manager, stating that his firm no longer acts for the plaintiff in these proceedings and, accordingly, their town agents, Bennett & Philp were not instructed to appear at the hearing the following day (exhibit 1). 
  1. [7]
    No notice of change of solicitor has been filed (cf r 987 UCPR).  No application for leave to withdraw as solicitor has been made (cf r 990 UCPR).  Accordingly, Armeli & Molony Lawyers remain the solicitors on the record for the plaintiff (r 987(3) UCPR).
  2. [8]
    The address for service specified in the claim (r 17(1)(b)(iv) UCPR) was care of Bennett & Philp Lawyers, as town agents for Armeli & Molony Lawyers, who are located in Perth.
  3. [9]
    In those circumstances, it was appropriate for the defendants to have served their application on the plaintiff’s solicitor on the record, as well as their town agent. 
  4. [10]
    There was no appearance by or on behalf of the plaintiff on 20 May 2021.  It was open to the court to deal with the application on that day – service having been effected on the solicitor for the plaintiff, who remains on the record, at the plaintiff’s address for service.  However, out of an abundance of caution, in light of the email from Mr Molony, and given the final nature of the relief sought by the defendants, I considered that it would be appropriate for the defendants to serve the plaintiff itself with the application.  But to avoid the need for the defendants to reappear, I made orders in the following terms:

“1.  Within seven (7) days of being served in accordance with order 2, the plaintiff show cause, by filing and serving a notice to that effect together with any supporting material and submissions, why orders should not be made in terms that:

  1. a)
    The proceedings be dismissed pursuant to Rule 674(c) of the Uniform Civil Procedure Rules; and
  1. b)
    The Plaintiff pay the Defendants’ costs of and incidental to the proceedings on the standard basis.
  1. The solicitors for the defendants are to forthwith serve a copy of this order and the application filed 12 May 2021, the affidavit of David Leslie Slatyer filed 12 May 2021 and the applicants’ outline of submissions filed in court on 20 May 2021 on the registered office of the plaintiff and on the solicitors on the record for the plaintiff. 
  2. In the event that no notice is filed by the plaintiff in accordance with order 1, the defendants are at liberty to apply for an order in terms of paragraphs 1(a) and (b) above, by submitting an affidavit of service and a draft order to the associate to Bowskill J, with the matter to be dealt with on the papers.”
  1. [11]
    In an affidavit filed on 1 June 2021 (CFI 27) Mr Sewell, of the solicitor for the defendants, deposes to having served the plaintiff, in accordance with order 2 above, on 24 May 2021, by causing those documents to be personally served at the registered office of the plaintiff, Ernst & Young in Sydney (see s 109X of the Corporations Act 2001 (Cth)) as well as on the plaintiff’s solicitor on the record and its town agent.   Ernst & Young have responded to the defendants’ solicitor to say the plaintiff is not their client, they do not know why they are nominated as the plaintiff’s registered office and they have not passed the documents on to the plaintiff.  Despite that, the office of Ernst & Young in Sydney is recorded as both the registered office and the principal place of business for the plaintiff in the records of ASIC.[2] It is the plaintiff’s obligation to ensure those records are accurate and up to date. The point of a provision such as s 109X is to facilitate service, which takes effect upon delivery of the documents served, rather than receipt.[3] There is no evidence of any response from the solicitor on the record, Armeli & Molony.
  1. [12]
    The defendants have complied with order 2.  More than seven days has passed since 24 May 2021, and nothing has been filed by the plaintiff, in accordance with order 1 or otherwise.  In accordance with order 3, the defendants apply for an order that the proceedings be dismissed.
  2. [13]
    I am satisfied it is appropriate to make that order, taking into account the considerable time that has passed since a step was taken in this proceeding by the plaintiff and since the order for security for costs was made, and the failure by the plaintiff to pay the security for costs ordered.  It is reasonable to infer the plaintiff does not intend to prosecute this claim any further.  Its conduct is not consistent with any such intention, and certainly not consistent with the obligation imposed by r 5 of the UCPR.  The defendants should not be put to any further cost or inconvenience in dealing with this proceeding.  

Footnotes

[1] Affidavit of Slatyer (CFI 23) at [5] and [6].

[2] See exhibit DLS-2 to Mr Slatyer’s affidavit (CFI 23).

[3] See Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 96.

Close

Editorial Notes

  • Published Case Name:

    Queensland Shellfish Pty Ltd v Sparks & Ors

  • Shortened Case Name:

    Queensland Shellfish Pty Ltd v Sparks

  • MNC:

    [2021] QSC 131

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    03 Jun 2021

Appeal Status

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