GHD Pty Ltd v Wayne

[2001] QSC 73

SUPREME COURT OF QUEENSLAND

CITATION:

Combined Property Industries (Qld) Pty Ltd v Pullenvale Estates Pty Ltd [2001] QSC 076

PARTIES:

COMBINED PROPERTY INDUSTRIES (QLD) PTY LTD  ACN 054 903 196
(plaintiff/respondent)
v
PULLENVALE ESTATES PTY LTD ACN 079 403 133
(defendant/applicant)

FILE NO:

5333 of 2000

DIVISION:

Trial Division

DELIVERED ON:

22 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2001

JUDGE:

Mullins J

ORDER:

1.  The respondent give security for costs in the sum of $40,000.
2.  That such security can be satisfied at the respondent's election by Douglas George Robertson and Ronald Bruce Weston providing a joint and several guarantee to the applicant for security for costs in the sum of $40,000 in such form as the applicant and respondent agree upon or, failing agreement, in the form satisfactory to the Registrar.
3.  The proceeding is stayed until the order for security for costs has been complied with.

CATCHWORDS:

CORPORATIONS LAW - COSTS – security for – s1335 Corporations Law – plaintiff sought to rely on existing licenses of Building Services Authority (BSA) to show financial position – whether licensing requirements of BSA displace the need to provide information on trading and financial position – exercise of discretion as to order for security for costs.

Corporations Law, s1335

Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 156 FLR 116

COUNSEL:

K Buxton for the applicant
RC Schulte for the respondent

SOLICITORS:

Deacons for the applicant
Dibbs Barker Gosling for the respondent

1. MULLINS J: The applicant which is the defendant in the action seeks an order for security for costs against the respondent, in reliance on section 1335 of the Corporations Law.

1. The respondent's claim arises out of the building contract between the respondent as contractor and the applicant as principal in respect of the construction of commercial premises.  Although the claim as filed was for the sum of $647,306.73 the respondent's solicitor, Mr Winter, in his affidavit filed on 12 March 2001, states that the respondent's claim stands at $453,243.50 and that in particulars the applicant has admitted variations with a value of $68,778.  Mr Winter also seeks to rely on the value of additional variations that the architect for the project states are valid of $118,360, but the applicant disputes the reliability of that assessment, as the architect did not seek the input of the applicant before making the assessment of the validity and value of these variations. 

1. The respondent's claim was filed on 20 June 2000.  A defence was filed on 31 July 2000.  By consent of the parties it was ordered on 14 December 2000 that the applicant provide the respondent with the particulars requested by letter dated 3 August 2000 on or before 21 December 2000.  Those particulars were provided.  Further particulars were then requested of matters pleaded in the applicant's further and better particulars.  Most of those particulars were provided by the applicant on 12…