Gallus Properties P/L v Richardson - [2004] QSC 415

SUPREME COURT OF QUEENSLAND

CITATION:

Gallus Properties P/L & Ors v Richardson & Ors[2004] QSC 415

PARTIES:

GALLUS PROPERTIES PTY LTD ACN 010 863 902
(first plaintiff)
and
PETER WILLIAM GALLUS
(second plaintiff)
and
BROADBEACH VISTA PTY LTD ACN 066 085 737
(third plaintiff)
v
KERRIE SUZANNE RICHARDSON
(first defendant)
and
AMMBAR PTY LTD ACN 080 616 191
(second defendant)
and
J V PROPERTY SYNDICATES PTY LTD
ACN 050 921 036
(third defendant)

FILE NO:

BS8484 of 2004

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

8 November 2004, 17 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2004

JUDGE:

Wilson J

ORDERS:

1)   Pending trial or further earlier order, the First Defendant and the Second Defendant be restrained by themselves, their servants agents or howsoever otherwise from taking any step in execution of the Contract dated 23 August 2004 (“the Contract”) (referred to in paragraph 32 of the affidavit of Pullar sworn 12 October 2004 and filed in this proceeding) and the Deed of Variation (referred to in paragraphs 44 and 47 of the affidavit of Pullar sworn 12 October 2004 and filed in this proceeding) or otherwise disposing of the land described in the Contract (“the Balance Land”);

2)   Pending trial or further earlier order, the Third Defendant be restrained by itself, its servants agents or howsoever otherwise from taking any step in execution of the Contract;

3)   Pending trial or further earlier order, Philip Gregory Jefferson and Matthew Leslie Joiner (“the Receivers”) be appointed as receivers to the third plaintiff and the second defendant in order to immediately take charge of and receive the Balance Land and all of the other undertaking and assets of the Joint Venture (“the Joint Venture”) established by the Unitholders Participation Agreement dated 9 July 1999 and the Lammermoor Beach Unit Trust, as referred to in paragraphs 4 and 5 of the affidavit of Gallus sworn 29 September 2004 and filed in this proceeding including the books and records of the third plaintiff and second defendant;

4)   The appointment of the Receivers is made with the powers to protect and preserve the assets of the Joint Venture, including to preserve the assets by completing the execution of the Contract or otherwise sell the land or by refinancing if that is considered by the Receivers to be appropriate;

5)   That the remuneration of the Receivers be agreed to between the Receivers and the First and Second Defendants or, in the absence of such agreement, be as approved by the Court on the application of the Receivers;

6)   Each party and the Receivers have liberty to apply on two days notice to each other party;

7)   The application filed by the first and second defendants on 14 October 2004 is dismissed;

8)   Pursuant to rules 468(2)(a) UCPR the proceeding be certified for speedy trial;

9)   The costs of and incidental to the application filed by the Plaintiffs on 29 September 2004 be reserved;

10) The First and Second Defendants pay the Plaintiff’s costs of…

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 Gallus Properties P/L v Richardson

Details

AGLC: Gallus Properties P/L v Richardson [2004] QSC 415
Case: [2004] QSC 415
Decision Date: 8 November 2004, 17 November 2004

CaseChat Overview and Summary

Gallus Properties P/L brought an application against several defendants in the Federal Court of Australia, seeking various interlocutory reliefs related to a joint venture agreement and a subsequent breach of contract. The plaintiffs sought an injunction to restrain the defendants from executing a contract for the sale of land, appointing receivers to manage the joint venture assets, and other reliefs. The defendants opposed the application and sought security for costs.

The court was required to decide whether to grant the interlocutory injunctions sought by the plaintiffs and to determine if security for costs should be ordered against the plaintiffs. The court had to consider the balance of convenience in granting the injunctions and whether the plaintiffs could provide adequate security for costs.

The court found that the balance of convenience favoured the plaintiffs in granting the interlocutory injunctions. The court held that the plaintiffs had made sufficient undertakings to provide security for costs, applying the Mantaray principle. The court restrained the defendants from disposing of the land and appointed receivers to manage the joint venture assets. The court also dismissed the defendants' application for security for costs and certified the proceeding for speedy trial.

The court ordered that the defendants be restrained from executing the contract and disposing of the land, and that receivers be appointed to manage the joint venture assets. The court also dismissed the defendants' application for security for costs and certified the proceeding for speedy trial. The costs of the application were reserved, and the defendants were ordered to pay the plaintiffs' costs of the defendants' application.

Orders

Orders of the court

1) Pending trial or further earlier order, the First Defendant and the Second Defendant be restrained by themselves, their servants agents or howsoever otherwise from taking any step in execution of the Contract dated 23 August 2004 (“the Contract”) (referred to in paragraph 32 of the affidavit of Pullar sworn 12 October 2004 and filed in this proceeding) and the Deed of Variation (referred to in paragraphs 44 and 47 of the affidavit of Pullar sworn 12 October 2004 and filed in this proceeding) or otherwise disposing of the land described in the Contract (“the Balance Land”);

2) Pending trial or further earlier order, the Third Defendant be restrained by itself, its servants agents or howsoever otherwise from taking any step in execution of the Contract;

3) Pending trial or further earlier order, Philip Gregory Jefferson and Matthew Leslie Joiner (“the Receivers”) be appointed as receivers to the third plaintiff and the second defendant in order to immediately take charge of and receive the Balance Land and all of the other undertaking and assets of the Joint Venture (“the Joint Venture”) established by the Unitholders Participation Agreement dated 9 July 1999 and the Lammermoor Beach Unit Trust, as referred to in paragraphs 4 and 5 of the affidavit of Gallus sworn 29 September 2004 and filed in this proceeding including the books and records of the third plaintiff and second defendant;

4) The appointment of the Receivers is made with the powers to protect and preserve the assets of the Joint Venture, including to preserve the assets by completing the execution of the Contract or otherwise sell the land or by refinancing if that is considered by the Receivers to be appropriate;

5) That the remuneration of the Receivers be agreed to between the Receivers and the First and Second Defendants or, in the absence of such agreement, be as approved by the Court on the application of the Receivers;

6) Each party and the Receivers have liberty to apply on two days notice to each other party;

7) The application filed by the first and second defendants on 14 October 2004 is dismissed;

8) Pursuant to rules 468(2)(a) UCPR the proceeding be certified for speedy trial;

9) The costs of and incidental to the application filed by the Plaintiffs on 29 September 2004 be reserved;

10) The First and Second Defendants pay the Plaintiff’s costs of and incidental to the application filed by the First and Second Defendants on 14 October 2004 to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Gallus Properties P/L & Ors v Richardson & Ors[2004] QSC 415
PARTIES:	GALLUS PROPERTIES PTY LTD ACN 010 863 902 (first plaintiff) and PETER WILLIAM GALLUS (second plaintiff) and BROADBEACH VISTA PTY LTD ACN 066 085 737 (third plaintiff) v KERRIE SUZANNE RICHARDSON (first defendant) and AMMBAR PTY LTD ACN 080 616 191 (second defendant) and J V PROPERTY SYNDICATES PTY LTD ACN 050 921 036 (third defendant)
FILE NO:	BS8484 of 2004
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	8 November 2004, 17 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2004
JUDGE:	Wilson J
ORDERS:	1) Pending trial or further earlier order, the First Defendant and the Second Defendant be restrained by themselves, their servants agents or howsoever otherwise from taking any step in execution of the Contract dated 23 August 2004 (“the Contract”) (referred to in paragraph 32 of the affidavit of Pullar sworn 12 October 2004 and filed in this proceeding) and the Deed of Variation (referred to in paragraphs 44 and 47 of the affidavit of Pullar sworn 12 October 2004 and filed in this proceeding) or otherwise disposing of the land described in the Contract (“the Balance Land”); 2) Pending trial or further earlier order, the Third Defendant be restrained by itself, its servants agents or howsoever otherwise from taking any step in execution of the Contract; 3) Pending trial or further earlier order, Philip Gregory Jefferson and Matthew Leslie Joiner (“the Receivers”) be appointed as receivers to the third plaintiff and the second defendant in order to immediately take charge of and receive the Balance Land and all of the other undertaking and assets of the Joint Venture (“the Joint Venture”) established by the Unitholders Participation Agreement dated 9 July 1999 and the Lammermoor Beach Unit Trust, as referred to in paragraphs 4 and 5 of the affidavit of Gallus sworn 29 September 2004 and filed in this proceeding including the books and records of the third plaintiff and second defendant; 4) The appointment of the Receivers is made with the powers to protect and preserve the assets of the Joint Venture, including to preserve the assets by completing the execution of the Contract or otherwise sell the land or by refinancing if that is considered by the Receivers to be appropriate; 5) That the remuneration of the Receivers be agreed to between the Receivers and the First and Second Defendants or, in the absence of such agreement, be as approved by the Court on the application of the Receivers; 6) Each party and the Receivers have liberty to apply on two days notice to each other party; 7) The application filed by the first and second defendants on 14 October 2004 is dismissed; 8) Pursuant to rules 468(2)(a) UCPR the proceeding be certified for speedy trial; 9) The costs of and incidental to the application filed by the Plaintiffs on 29 September 2004 be reserved; 10) The First and Second Defendants pay the Plaintiff’s costs of…