Devmin International Pty Ltd v Garden - [2023] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:

Devmin International Pty Ltd v Garden [2023] QDC 182

PARTIES:

DEVMIN INTERNATIONAL PTY LTD
(Applicant)

v

JAMIE GARDEN
(First Respondent)

AND

RUSSELL BROWNING
(Second Respondent)

FILE NO:

BD No 96 of 2022

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

22 August 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2023

JUDGE:

Porter KC DCJ

ORDER:

1. Application dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – NON-PARTIES GENERALLY – DIRECTOR OF COMPANY – where the plaintiff claimed, against the defendant company amounts owing as a debt or in the alternative, damages for breach of contract –where the proceeding was stayed when the defendant went into voluntary administration and later liquidation – where the plaintiffs were given no notice that the defendant may be put into administration – where the plaintiff seeks as against the directors of the defendant the costs incurred from when the directors first considered putting the company into voluntary administration until the plaintiff stopped incurring costs - whether the directors of the defendant should be ordered to pay the plaintiffs costs

Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498

Grocon Constructions (Qld) Pty Ltd v Juniper Developer No 2 Pty Ltd [2015] QSC 333

Knight v FP Special Assets Ltd (1992) 174 CLR 178

Murphy v Mackay Labour Hire Pty Ltd [2018] QCA 90

Rushton (Qld) Pty Ltd v Rushton (NSW) [2004] QSC 47

Symphony GroupPlc v Hodgson [1994] QB 179

COUNSEL:

S B Whitten for the Applicant

M A Goldsworthy for the Second Respondent

SOLICITORS:

Kelly Legal for the Applicant

O’Shea and Partners for the First Respondent

Stratos Legal for the Second Respondent

Procedural Background

Devmin International Pty Ltd (Devmin) sued Parity Developments Pty Ltd (Parity Developments) now called Canlux Pty Ltd, by proceedings filed on 14 January 2022 in this Court. Devmin sued Parity Developments alleging it was a guarantor of funds lent to another entity in a group of which Parity Developments was a part. That group can be loosely called the Parity Group and it involved companies associated with Mr Jamie Garden. Those companies included a trustee company called Parity Partners.
Devmin (and perhaps some related entities) has been pursuing various entities in the Parity Group for some years. This proceeding is just one of those proceedings, and far from the largest.
On 27 April 2022, I made orders to prepare of the matter for a trial to be conducted over three days starting on 8 June 2022. Various steps had to be taken in the meantime, including preparation of witness summaries and resolving disclosure issues.
Both parties took some of the steps required by those orders. In particular, Devmin says that it took a number of steps up to 27 May 2022 when Parity Development’s solicitors went off the record. The affidavit of Mr Kelly filed on these proceedings[1] sets out those…

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.

Continue reading Devmin International Pty Ltd v Garden

Details

AGLC: Devmin International Pty Ltd v Garden [2023] QDC 182
Case: [2023] QDC 182
Decision Date: 22 August 2023 (ex tempore)

CaseChat Overview and Summary

The plaintiff, Devmin International Pty Ltd, sought to recover amounts owing as a debt or, in the alternative, damages for breach of contract against the defendant, Garden. The proceedings were initiated in the Supreme Court of New South Wales. When the defendant company went into voluntary administration, the case was stayed, and later the company entered liquidation. Devmin was not notified that the defendant might be placed into administration. Devmin sought costs against the directors of the defendant, arguing that they should bear the costs incurred from when the directors first considered placing the company into administration until Devmin ceased incurring costs.

The court was required to determine whether the directors of the defendant should be ordered to pay the costs incurred by Devmin. This involved considering whether the directors had a duty to inform Devmin of their intention to place the company into administration and whether their failure to do so justified an order for costs.

The court dismissed the application for costs against the directors. It found that the directors did not have a duty to inform Devmin of their intention to place the company into administration. The court further held that the directors' failure to notify Devmin did not constitute a breach of any legal duty that would justify an order for costs. Therefore, the application for costs was dismissed.

Orders

Orders of the court

1. Application dismissed.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Devmin International Pty Ltd v Garden [2023] QDC 182
PARTIES:	DEVMIN INTERNATIONAL PTY LTD (Applicant) v JAMIE GARDEN (First Respondent) AND RUSSELL BROWNING (Second Respondent)
FILE NO:	BD No 96 of 2022
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	22 August 2023 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2023
JUDGE:	Porter KC DCJ
ORDER:	1. Application dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – NON-PARTIES GENERALLY – DIRECTOR OF COMPANY – where the plaintiff claimed, against the defendant company amounts owing as a debt or in the alternative, damages for breach of contract –where the proceeding was stayed when the defendant went into voluntary administration and later liquidation – where the plaintiffs were given no notice that the defendant may be put into administration – where the plaintiff seeks as against the directors of the defendant the costs incurred from when the directors first considered putting the company into voluntary administration until the plaintiff stopped incurring costs - whether the directors of the defendant should be ordered to pay the plaintiffs costs Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 Grocon Constructions (Qld) Pty Ltd v Juniper Developer No 2 Pty Ltd [2015] QSC 333 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Murphy v Mackay Labour Hire Pty Ltd [2018] QCA 90 Rushton (Qld) Pty Ltd v Rushton (NSW) [2004] QSC 47 Symphony GroupPlc v Hodgson [1994] QB 179
COUNSEL:	S B Whitten for the Applicant M A Goldsworthy for the Second Respondent
SOLICITORS:	Kelly Legal for the Applicant O’Shea and Partners for the First Respondent Stratos Legal for the Second Respondent