Gekko Developments Pty Ltd v Centa Company Pty Ltd (No 2)

[2013] QSC 353

SUPREME COURT OF QUEENSLAND

CITATION:

Gekko Developments Pty Ltd v Centa Company Pty Ltd (No 2) [2013] QSC 353

PARTIES:

GEKKO DEVELOPMENTS PTY LTD
ACN 139 260 674
(plaintiff)
v
CENTA COMPANY PTY LTD
ACN 010 059 944

(defendant)

FILE NO/S:

BS 7936 of 2012

DIVISION:

Trial Division

PROCEEDING:

Interlocutory application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2013

JUDGE:

Philip McMurdo J

ORDERS:

1.   Upon Darren Brown’s undertaking to consent to an order for costs against him which corresponds with any order for costs made against the plaintiff, paragraph 1 of the orders made on 14 May 2013 be varied to substitute “42 days” for “28 days” and an amount of $60,000 for the amount of $452,962.

2.   The plaintiff will have leave to amend the claim and statement of claim by filing and serving amended documents, which accord with these reasons, by 29 January 2014.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – where the plaintiff was ordered to pay security for costs – where the plaintiff now seeks leave to file an amended claim and statement of claim substantially narrowing the scope and expense of the litigation – where the defendant argues that the proceeding should now be dismissed as no security has been provided – where the defendant argues that if the proceeding is permitted to continue the plaintiff should still be ordered to pay security for costs – whether the proceeding should be dismissed because the plaintiff has not provided security – whether the plaintiff should be allowed to amend its claim and statement of claim – whether security for costs should be ordered and, if so, in what amount

Uniform Civil Procedure Rules, r 672

Gekko Developments Pty Ltd v Centa Company Pty Ltd[2013] QSC 126, related
K P Cable Investments Pty Ltd v Meltglow Pty Limited (1995) 56 FCR 189; [1995] FCA 76, cited
Specialised Explosives Blasting & Training Pty Ltd v Huddy’s Plant Hire Pty Ltd [2010] 2 Qd R 85; [2009] QCA 254, cited

COUNSEL:

A J H Morris QC with V G Brennan for the plaintiff

D Kelly SC with M Trim for the defendant

SOLICITORS:

McMahon Clarke for the plaintiff
McCullough Robertson for the defendant

1. On 14 May 2013, I ordered that the plaintiff provide security for the defendant’s costs, up to and including the first day of the trial, in the sum of $452,962.  I stayed the proceeding pending the provision of that security or until further order.  Each party was given liberty to apply for a variation of those orders as the circumstances then warranted.[1]

   [1]Gekko Developments Pty Ltd v Centa Company Pty Ltd [2013] QSC 126.

1. In that judgment I discussed the plaintiff’s claim, the likely issues in the proceeding and the apparent strength or otherwise of the respective cases.  I made three particular observations which are of present relevance.  The first was that the plaintiff’s…