Contamination Control Laboratories Pty Ltd v Reyer

SUPREME COURT OF QUEENSLAND

CITATION:

Contamination Control Laboratories Pty Ltd & Anor v Reyer & Ors [2010] QSC 1

PARTIES:

CONTAMINATION CONTROL LABORATORIES PTY LTD ACN 094 220 890
(first plaintiff)
and
LAMINAR AIR FLOW PTY LTD
ACN 106 677 329
(second plaintiff)
v
PETER REYER
(first defendant)
and
WILLIAM BALLINGER
(second defendant)
and
MATTHEW LUNN
(third defendant)
and
ROBERT FLOWERS
(fourth defendant)
and
JUSTIN ROWE
(fifth defendant)
and
CAMFIL FARR AUSTRALIA PTY LIMITED
ACN 090 885 224
(sixth defendant)

FILE NO:

BS7941 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2009

JUDGE:

Daubney J

ORDERS:

1.    The second plaintiff shall provide security, in a form satisfactory to the Registrar, for the defendants’ costs of and incidental to this proceeding up to and including the first day of trial in the amount of $100,000 (inclusive of GST).

2.     Such security shall be provided by 4 pm on 12 February 2010.

3.    The second plaintiff shall pay the defendants’ standard costs of and incidental to this application.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – PLAINTIFF – where defendants applied for security for costs against the second plaintiff – where defendants believed the second plaintiff would be unable to pay the defendants’ costs if they were successful in the proceeding – where second plaintiff did not own any real property – where second plaintiff argued that its assets consisted of intellectual property rights in particular software and documents – where second plaintiff could not ascribe a value to the intellectual property rights – where second plaintiff contended that its impecuniosity was attributable to the conduct of the defendants – whether it was an appropriate case in which security for costs ought to be ordered

Corporations Act 2001 (Cth)

Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2008] QSC 266, applied
Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311, cited
J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 7 ACLR 790, cited
Melunu Pty Ltd v Claron Constructions Pty Ltd [2004] NSWSC 1064, cited

COUNSEL:

M Steele for the second plaintiff

M H Hindman for the defendants

SOLICITORS:

McInnes Wilson Lawyers for the second plaintiff

Rouse Lawyers for the defendants

1. The defendants have applied for security for costs against the second plaintiff.[1] The defendants contend that there is credible testimony to give reason to believe that the second plaintiff will be unable to pay the defendants’ costs if they are successful in the proceeding, and accordingly there should be an order for security for costs under s 1335 of the Corporations Act and/or UCPR r 670.

   [1]The first plaintiff having gone into liquidation, its interest in this proceeding has been acquired by the sixth defendant, and the action by the first plaintiff will not be proceeding.

1. The claim in the proceeding made by the second plaintiff…