Brisbane Ship Constructions Pty Ltd v Sunrop Pty Ltd - [2013] QDC 228

[2013] QDC 228

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 4873 of 2012
BRISBANE SHIP CONSTRUCTIONS PTY LTD Plaintiff
and
SUNROP PTY LTD Defendant
BRISBANE
11.53 AM, THURSDAY, 23 MAY 2013
JUDGMENT

HIS HONOUR: There are two applications before the court on the plaintiff’s application, which is the second in time, the court makes an order in terms of the intialled draft. It requires that particulars be given of a payment which the defendant, in my view arguably inappropriately in light of rule 150 (4) (c), pleaded as a payment of $286,050 by it to the defendant in respect of contractual arrangements for the construction by the plaintiff of two vessels for it. It appears to have been known before the pleading, which is of recent date, having been filed on 18 February this year, that the defendant was fully aware that the payment was made by circuitous means through a Mr Dodd, or a company of his, he or it having been in due course reimbursed by the defendant.

The pleading gives no date of payment which might have occurred at any time over the long period, approaching the full duration of the limitation period, through which this matter has gone on, nor was there any suggestion made that any third person was involved in the payment. Mr Hollis, who was granted leave to represent the plaintiff company as a director of it, is entitled to the particulars he seeks. He is not entitled to the costs that he seeks, not being a lawyer.

The other application is by the defendant for security for costs. I have short-circuited this in a way that involves taking up an offer Mr Hollis has, in effect, previously made in correspondence. That makes him responsible for the costs, if his company can’t pay them.

That’s the order to be made. It corresponds with one that I made in Sven Payne Hospitality Management Pty Ltd v North Brisbane Sporting Association Incorporated [2008] QDC 81. I am reminded by Mr Wilson of counsel for the defendant that while it might have been thought in previous times that there was something approaching a principle, an undertaking to be responsible for costs by an individual would always justify a company whose ability to pay costs orders was problematic being allowed to proceed with no embarrassing order for security, which would lead to a stay until it was provided, being made. He referred to Specialised Explosives Blasting and Training Pty Ltd v Huddys Plant Hire Pty Ltd(2010) 2 Qd R 85; [2009] QCA 254; and also Base 1 Projects Pty Ltd v Islamic College of Brisbane Limited [2012] QCA 114. He referred also to Hyperion Technology Pty Ltd v Queensland Motorways Limited [2013] QSC 20.

Mr Wilson concedes that the court, in the position of the court today, still has a discretion to accept a director’s undertaking or equivalent, notwithstanding the Court of Appeal pronouncements that I have, on occasion,…

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 228
Decision Date: 23 MAY 2013

CaseChat Overview and Summary

In Brisbane Ship Constructions Pty Ltd v Sunrop Pty Ltd, the plaintiff, a company engaged in ship construction, sought particulars from the defendant regarding a payment of $286,050 related to contractual arrangements for the construction of two vessels. The defendant had pleaded a payment without providing specific details about the time of the payment, which could have occurred at any time over a period of nearly six years. The defendant also argued that the payment was made by a third party, Mr. Dodd, who was subsequently reimbursed by the defendant. The court was required to decide whether the defendant's pleading of the payment was appropriate under the Uniform Civil Procedure Rules and whether the plaintiff was entitled to particulars of the payment. Additionally, the defendant sought security for costs, arguing that the plaintiff appeared impecunious and unable to pay the costs of the proceedings.

The court found that the defendant's pleading of the payment was arguably inappropriate under rule 150(4)(c) as it did not provide sufficient details about the time of the payment. The court ordered the defendant to provide particulars of the payment. The court also considered the defendant's application for security for costs, noting that the plaintiff appeared to be impecunious and had closed its business pending the outcome of collecting debts. The court accepted a personal undertaking from the plaintiff's director, Michael John Hollis, to be responsible for any costs the plaintiff might fail to pay. The court ordered that the proceedings be stayed until the filing of a deed signed by Mr. Hollis undertaking to pay the defendant's costs. The defendant's application for security for costs was also granted, and the plaintiff's application to compel the defendant and/or its bankers to identify and preserve records related to the payment was dismissed.

The final orders of the court included requiring the defendant to provide particulars of the payment, staying the proceedings until the plaintiff's director signed a deed undertaking to pay the defendant's costs, and granting the defendant's application for security for costs. The plaintiff's application to compel the defendant and/or its bankers to identify and preserve records related to the payment was dismissed.

Orders