ASAP Plasterers Pty Ltd v Matrix Projects (Qld) Pty Ltd - [2013] QDC 218

[2013] QDC 218

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2370 of 2011
ASAP PLASTERERS PTY LTD  Plaintiff/Applicant
and
MATRIX PROJECTS (QLD) PTY LTD
and ANOTHER  Defendants/Respondent
ASAP PLASTERERS PTY LTD  Plaintiff/Respondent
and
MATRIX PROJECTS (QLD) PTY LTD
and ANOTHER  Defendants/Applicant
BRISBANE
4.17 PM, MONDAY, 20 MAY 2013
ORDER

HIS HONOUR: The court has cross applications before it in these two proceedings. In each the first filed was one by the first defendant under rule 674(c) seeking dismissal of the proceeding for failure of the respondent plaintiff to provide the first tranche of security for costs required by an order of the court. The cross-application is one seeking changes to that order by revoking it, varying the amount of it or allowing additional time, specifically to the 20^th of August 2013 - being the date nominated by the plaintiff’s director. That last respect is the only one in which any of the applications succeeds.

The order requiring provision of security came about in extraordinary circumstances. Its date is 9 October 2012, generating a surprise in a reader that in each matter, of the $50,000 security for costs required, the first $20,000 was required “within 14 days after 12 April 2012”, further amounts of $20,000 and $10,000 being required to be secured to the registrar’s satisfaction within seven days after the filing of the request for trial date and then not less than 14 days before the first day of trial. It appears that the plaintiff was, by definition, in default in respect of the first $20,000.

On the 12^th of April 2012 his Honour gave reasons for his conclusions in relation to both claims in two important respects. The first one was what security for costs, if any, ought to be provided. The second was the extent to which the plaintiff’s claims fell relevantly within the purview of the Subcontractors’ Charges Act, large components of the claims being for damages, prolongation and such matters and, as it was held, not within the Act.

In relation to security for costs, his Honour’s approach was to draw inferences unfavourable to the plaintiff’s financial soundness from its reticence in responding to invitations to disclose assets and also its being a $2 company. His Honour, with his usual thoroughness, scrutinised the cost estimates of the parties’ rival cost assessor experts, coming down somewhere in the middle. He set the parties a complex exercise for the purpose of determining the dollar amounts of each of the claims which came within the purview of the Subcontractors’ Charges Act properly. Extreme difficulty was said to have been encountered in that regard by counsel and solicitors engaged in it, and there were difficulties attributable to his Honour’s absence from the jurisdiction adding to the delay, which explains the unusual chronology here.

It’s not necessary to consider the implications of the plaintiff’s default in provision of security which on one view existed from the 26^th of April 2012. It’s unlikely that the plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QDC 218
Decision Date: 20 MAY 2013

CaseChat Overview and Summary

In the case of ASAP Plasterers Pty Ltd v Matrix Projects (Qld) Pty Ltd, the District Court of Queensland was presented with cross-applications concerning the enforcement of an order for security for costs and its potential variation. The plaintiff, ASAP Plasterers, had filed claims against the defendants, Matrix Projects and another, but had failed to provide the initial tranche of security for costs as mandated by a prior court order. The defendants sought dismissal of the plaintiff's claims due to this non-compliance, while the plaintiff requested variations to the security order, particularly extending the deadline for the first payment of security.

The central legal issues before the court were whether the plaintiff's failure to comply with the security for costs order warranted dismissal of their claims and whether there were grounds to vary the security order. The court considered the plaintiff's impecuniosity and the defendants' role in it, but found that the security order should not be entirely dispensed with. It was determined that while the plaintiff's financial difficulties might be relevant to the amount of security required, this was not the appropriate stage to address those issues.

The court decided that the defendants' applications for dismissal of the plaintiff's claims were to be dismissed, and that the deadline for the first payment of security should be extended to 20 August 2013. This decision was made to avoid potential injustices that might arise from a more stringent enforcement of the security order. The court also noted that the costs of the defendants' applications would be borne by the plaintiff, and vice versa for the plaintiff's applications.

Orders