Austech Concrete Constructions Pty Ltd v Crown Consultants Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Austech Concrete Constructions Pty Ltd v Crown Consultants Pty Ltd & Anor [2013] QDC 272

PARTIES:

AUSTECH CONCRETE CONSTRUCTIONS PTY LTD

(plaintiff)

v

CROWN CONSULTANTS PTY LTD

(first defendant)

and

JAMES ROBERT JOHNSTONE

(second defendant)

FILE NO/S:

4015/12

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

30 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2013

JUDGE:

Farr SC DCJ

ORDER:

The application for disclosure is allowed.I will hear the parties as to the orders that should be made regarding this issue.  1.   

The application for an order pursuant to r 233(2) is allowed.I will hear the parties as to the order that should be made regarding this issue.  2.   

The application to join Mr Zdrilich is adjourned to a date to be fixed.3.   

The application for security for costs is dismissed.4.   

The first and second defendants have leave to file and serve a Further Amended Defence and Counterclaim within 14 days of the date of this order. 5.   

I will hear submissions as to costs.6.   

CATCHWORDS:

CIVIL – APPLICATION – DISCLOSURE - procedure - discovery and interrogatories - discovery and inspection of documents - discovery of documents – Uniform Civil Procedure Rules – r 211 - whether a document is directly relevant to an allegation in issue

CIVIL – APPLICATION – –PROCEDURE – PARTIES – application to join party - Uniform Civil Procedure Rules – r 69(1)(b)(i) and (ii) – whether presence before the court is necessary or desirable - Civil Liability Act – section 30 – whether concurrent wrongdoer

CIVIL – APPLICATION – SECURITY FOR COSTS - corporations - costs - security for costs – Corporations Act – section 1335 – Uniform Civil Procedure rules – r 617(a) - whether reason to believe corporation unable to pay defendant's costs

COUNSEL:

G Coveney for the plaintiff

N H Ferret for the defendants

SOLICITORS:

HW Litigation for the plaintiff

Turner Freeman Lawyers for the defendants

1. There are three applications for the court to consider.  The first was filed by the plaintiff seeking orders relating to disclosure.  The remaining two were filed by the defendants.  The first seeks to join a party and the second is for security for costs.  Each of the applications is opposed. 

Background

1. The plaintiff corporation operates a business servicing the construction industry.  The first defendant is a company that provides accounting and taxation services to business.  The second defendant is the director of the first defendant. 

1. The plaintiff sues to recover payments that it alleges were made for the purpose of passing on to the Australian Taxation Office (“ATO”).  The defendants contend that the payments were made on invoices issued by the first defendant pursuant to an agreement to provide business consulting services. 

1. In reply, the plaintiff affirms the statement of claim and says that:

(a)        the consultancy agreement was never signed, the signature of the plaintiff’s principal, Mr Zdrilich having been forged; and

(b)        the consultancy agreement cannot be binding on the plaintiff because it was executed before…