Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd - [2007] QSC 262

SUPREME COURT OF QUEENSLAND

CITATION:

Covecorp Constructions P/L v Indigo Projects P/L [2007] QSC 262

PARTIES:

COVECORP CONSTRUCTIONS PTY LTD
ACN 050 401 888
(plaintiff/respondent)
v
INDIGO PROJECTS PTY LTD ACN 010 736 231
(defendant/applicant)

FILE NO/S:

BS 10157 of 2001
BS 2763 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2007

JUDGE:

Martin J

ORDER:

In BS 10157 of 2001:
1. Within 14 days of today, the plaintiff give security for the defendant’s costs up to and including the first day of trial in the sum of $112,092 in a form satisfactory to the Principal Registrar of the Court and in default further proceedings to be stayed.
2. Liberty to either party to apply on two days notice in writing to the other.
3. The plaintiff pay to the defendant the defendant’s costs of and incidental to the application.

In BS 2763 of 2002:
1. Within 14 days of today, the plaintiff give security for the defendant’s costs up to and including the first day of trial in the sum of $74,728 in a form satisfactory to the Principal Registrar of the Court and in default further proceedings to be stayed.
2. Liberty to either party to apply on two days notice in writing to the other.

3. The plaintiff pay to the defendant the defendant’s costs of and incidental to the application.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER REASONS FOR SECURITY – where defendant/applicant sought security for costs – where order for security for costs previously made – where effective delay in making application – whether application amounted to an application to vary a previous order – whether UCPR 675 satisfied – whether counterclaims have effect on quantum ordered for security – whether order should be made

Uniform Civil Procedure Rules 1999 (Qld), r 670, 675

Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136, cited
Bryan E Fencott P/L v Eretta P/L (1987) 16 FCR 497, considered
Buckley v Bennell (1974) 1 ACLR 301, considered
Goodman v Lorenzen[2000] QCA 11; Appeal No 395 of 1999, 25 February 2000, considered
Interline Hydrocarbon Inc v Brenzil Pty Ltd[2005] QSC 109, distinguished
Iron Gates Pty Ltd (in liquidation) & Anor v Richmond River Shire Council & Ors[2006] QSC 141, cited
Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68, considered
Sir Lindsay Parkinson & Co v Triplan Ltd [1973] QB 609, cited
Smail v Burton; Re Insurance Associates Pty Ltd (in liq) (1975) 1 ACLR 74, cited

Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289, considered

COUNSEL:

P L O’Shea SC, with him M H Hindman, for the plaintiff/respondent
L F Kelly, with D O’Sullivan, for the defendant/applicant

SOLICITORS:

Holding Redlich for the plaintiff/respondent

DLA Phillips Fox for the defendant/applicant

This is an application by the defendant…

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: [2007] QSC 262
Decision Date: 19 September 2007

CaseChat Overview and Summary

Covecorp Constructions Pty Ltd was involved in a legal dispute with Indigo Projects Pty Ltd, with the case being heard in the Supreme Court of New South Wales. The primary issue was the defendant's application for security for costs, a matter that had been previously addressed in the proceedings. The defendant sought an order for security for costs, raising concerns about delays in the application process and the potential variation of a prior order. Additionally, the court examined the impact of counterclaims on the quantum of security required.

The court considered whether the defendant's application amounted to a request to vary a previous order, as well as whether the defendant had satisfied the requirements of UCPR 675. It also assessed the effect of counterclaims on the amount of security ordered. In determining the appropriate quantum of security, the court evaluated the financial positions of both parties and the merits of the claims and counterclaims.

After thorough consideration, the court ordered Covecorp Constructions Pty Ltd to provide security for the defendant's costs up to and including the first day of trial. The amounts specified in the orders were $112,092 and $74,728, respectively, in cases BS 10157 of 2001 and BS 2763 of 2002. The court also granted liberty to either party to apply for further orders and directed the plaintiff to pay the defendant's costs of and incidental to the application.

Orders

Orders of the court

In BS 10157 of 2001:

1. Within 14 days of today, the plaintiff give security for the defendant’s costs up to and including the first day of trial in the sum of $112,092 in a form satisfactory to the Principal Registrar of the Court and in default further proceedings to be stayed.

2. Liberty to either party to apply on two days notice in writing to the other.

3. The plaintiff pay to the defendant the defendant’s costs of and incidental to the application.

In BS 2763 of 2002:

1. Within 14 days of today, the plaintiff give security for the defendant’s costs up to and including the first day of trial in the sum of $74,728 in a form satisfactory to the Principal Registrar of the Court and in default further proceedings to be stayed.

2. Liberty to either party to apply on two days notice in writing to the other.

3. The plaintiff pay to the defendant the defendant’s costs of and incidental to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Covecorp Constructions P/L v Indigo Projects P/L [2007] QSC 262
PARTIES:	COVECORP CONSTRUCTIONS PTY LTD ACN 050 401 888 (plaintiff/respondent) v INDIGO PROJECTS PTY LTD ACN 010 736 231 (defendant/applicant)
FILE NO/S:	BS 10157 of 2001 BS 2763 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	6 September 2007
JUDGE:	Martin J
ORDER:	In BS 10157 of 2001: 1. Within 14 days of today, the plaintiff give security for the defendant’s costs up to and including the first day of trial in the sum of $112,092 in a form satisfactory to the Principal Registrar of the Court and in default further proceedings to be stayed. 2. Liberty to either party to apply on two days notice in writing to the other. 3. The plaintiff pay to the defendant the defendant’s costs of and incidental to the application. In BS 2763 of 2002: 1. Within 14 days of today, the plaintiff give security for the defendant’s costs up to and including the first day of trial in the sum of $74,728 in a form satisfactory to the Principal Registrar of the Court and in default further proceedings to be stayed. 2. Liberty to either party to apply on two days notice in writing to the other. 3. The plaintiff pay to the defendant the defendant’s costs of and incidental to the application.
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER REASONS FOR SECURITY – where defendant/applicant sought security for costs – where order for security for costs previously made – where effective delay in making application – whether application amounted to an application to vary a previous order – whether UCPR 675 satisfied – whether counterclaims have effect on quantum ordered for security – whether order should be made Uniform Civil Procedure Rules 1999 (Qld), r 670, 675 Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136, cited Bryan E Fencott P/L v Eretta P/L (1987) 16 FCR 497, considered Buckley v Bennell (1974) 1 ACLR 301, considered Goodman v Lorenzen[2000] QCA 11; Appeal No 395 of 1999, 25 February 2000, considered Interline Hydrocarbon Inc v Brenzil Pty Ltd[2005] QSC 109, distinguished Iron Gates Pty Ltd (in liquidation) & Anor v Richmond River Shire Council & Ors[2006] QSC 141, cited Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68, considered Sir Lindsay Parkinson & Co v Triplan Ltd [1973] QB 609, cited Smail v Burton; Re Insurance Associates Pty Ltd (in liq) (1975) 1 ACLR 74, cited Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289, considered
COUNSEL:	P L O’Shea SC, with him M H Hindman, for the plaintiff/respondent L F Kelly, with D O’Sullivan, for the defendant/applicant
SOLICITORS:	Holding Redlich for the plaintiff/respondent DLA Phillips Fox for the defendant/applicant