Aggreko Generator Rentals Pty Ltd v Generator Sales and Service Pty Ltd and Clements

[1995] QCA 600

IN THE COURT OF APPEAL	[1995] QCA 600
SUPREME COURT OF QUEENSLAND

Appeal No. 215 of 1995

Brisbane

[Aggreko Generator Rentals v. Generator Sales & Service & Anor]

BETWEEN:

AGGREKO GENERATOR RENTALS PTY LTD
ACN 001 991 457

(Plaintiff) Respondent

AND:

GENERATOR SALES & SERVICE PTY LTD
ACN 010 833 851

(First Defendant) Appellant

AND:

STEVEN ALEXANDER CLEMENTS

(Second Defendant) Appellant

Macrossan CJ
Thomas J

Dowsett J

Judgment delivered 20 December 1995

Judgment of the Court

APPEAL ALLOWED. FORMAL ORDERS AS INCORPORATED IN THE JUDGMENT

OF THE COURT

__________________________________________________________________________

Counsel:	Mr D.R. Cooper for the Appellants Mr D.B. Fraser Q.C., with him Mr P.A. Freeburn for the Respondent
Solicitors:	Wheldon & Associates for the Appellants McPherson & Kelly town agents for Barker Gosling for the Respondent

Hearing Date: 14 November 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 215 of 1995

Brisbane

Before Macrossan CJ

Thomas J Dowsett J

[Aggreko Generator Rentals v. Generator Sales & Service & Anor]

BETWEEN:

AGGREKO GENERATOR RENTALS PTY LTD
ACN 001 991 457

(Plaintiff) Respondent

AND:

GENERATOR SALES & SERVICE PTY LTD
ACN 010 833 851

(First Defendant) Appellant

AND:

STEVEN ALEXANDER CLEMENTS

(Second Defendant) Appellant

JUDGMENT OF THE COURT

Judgment delivered 20 December 1995

During the hearing of this appeal it became apparent that the order appealed from was

inappropriate in a number of respects and that it could not stand. The Court in due course indicated

the type of order that it was minded to substitute, and gave the parties the opportunity of presenting

a draft order, or, in the event of dispute, to make further written submissions concerning the form of

order.

The parties were unable to agree as to the form of order, although the points upon which

they are at variance are in narrow compass. Having considered the respective submissions the

following will be the Order of the Court -

1.          Appeal allowed.

2.          The orders numbered 1, 2 and 3 made in this action by Fryberg J on 7 September 1995 be set aside and, in lieu thereof, orders numbered 3 to 8 hereof be made.

UPON the plaintiff (by its counsel) giving the usual undertaking as to damages in respect of orders
3, 4 and 5 hereof.

3.          Pending the determination of this action, or earlier order:

(a)	the defendants, and each of them, shall keep and maintain full and proper records and accounts ("the records") of the income earned, expenditure incurred, and profits made by the defendants, and each of them, in relation to the supply within Queensland of electricity produced by generators, including the records related to the Eloise Project for Amalg Resources NL;
(b)	the defendants secure those profits in such manner as may be agreed by the parties and, in default of agreement, to the satisfaction of a Judge of the Supreme Court of Queensland;
(c)	the defendants permit Andrew Ivo Charles to have access from time to time to such records and accounts upon the giving of two clear days notice to the defendants;
(d)	prior to such access being provided the said Andrew Ivo Charles shall give to the defendants' solicitors an undertaking in writing to abide the requirements of paragraphs 4 and 5 hereof;
(e)	the said Andrew Ivo Charles shall be permitted to take one photocopy of any document inspected; such copies shall be supplied forthwith by the defendant upon Mr Charles' request. The cost of such copying, not to exceed $1 per page, shall be paid by the plaintiff within one month of invoice.

4.          Except with leave of the Court, or for the purpose of briefing or consulting counsel, not more than the said photocopy shall be made of the documents inspected and any such copy shall be kept in a secure place at the office of the said Mr Charles.

5.          Except by leave of the Court or with the written consent of the defendants or their solicitors, the said documents and their contents and any part of those documents shall not be:

(i)	divulged to any person, firm or company other than the solicitors and counsel for the plaintiff;
(ii)	used for any purpose other than the purposes of these proceedings.

6.          This action be certified as a speedy trial.

7.          It be further directed as follows:

(a)	the defendants deliver their defence on or before 5 p.m. on 22 November 1995;
(b)	the parties comply with their obligations in relation to disclosure on or before 29 November 1995.

8.          Remit the further management of the cause to a Judge in Chambers for any necessary directions and for the consideration of any supplementary orders which may be called for.

9.          The costs of and incidental to the appeal be each party's costs in the cause.