GP Phillips and Co Pty Ltd v Stantec Pty Ltd - [2005] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:

GP Phillips & Co Pty Ltd v Stantec Pty Ltd [2005] QDC 223

PARTIES:

GP PHILLIPS & CO PTY LTD

(Plaintiff/Respondent)

v

STANTEC PTY LTD AS TRUSTEE FOR THE HUNTINGTON HOLDINGS UNIT TRUST (ACN 068 896 051)

(Defendant/Applicant)

FILE NO/S:

BD2672/04

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21^st of July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19^th of July 2005

JUDGE:

FORDE DCJ

ORDER:

1.That the plaintiff do provide security for the defendant’s costs in the sum of $15,000.00 by way of personal guarantees from Mr Gordon Phillips and Ms Catherine Mary Palmer.
2. That the proceedings be stayed until such time as the said security be given to the solicitors for the defendant.
3. That the time for service of a Counterclaim by the defendant provided for in rule 179 of the Uniform Civil Procedure Rules 1999 (Qld) be extended to 10 May 2005.
4. That the plaintiff be granted leave pursuant to rule 188 of the Uniform Civil Procedure Rules to withdraw the admission contained in paragraph 2(c) of its Reply filed on 20 December 2004 in the terms of paragraph 2(c) of its Amended Reply and Answer filed on 2 June 2005; and
5. Costs are to be costs in the cause.

CATCHWORDS:

SECURITY FOR COSTS – QUANTUM OF SECURITY – Nature of security – Costs assessment – personal guarantees by directors

Corporations Act 2001 (Cth) s1335

Uniform Civil Procedure Rules rr 179, 670

Gallus Properties Pty Ltd and Ors. v Richardson and Ors [2004] QSC 415

Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306 at 314

Maggbury Pty Ltd and Anor. v. Hafele Australia and Anor [2000] QSC 220

Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304

COUNSEL:

Mr D Tucker for the Plaintiff/Respondent

Mr R Jackson for the Defendant/Applicant

SOLICITORS:

Tucker & Cowen

Corrs Chambers Westgarth

Introduction

The defendant, Stantec Pty Ltd, was the owner of some lots of land. The defendant agreed with the plaintiff, G P Phillips & Co Pty Ltd, that the latter would sell the land for the defendant. The plaintiff was a licensed real estate agent. The plaintiff sues for the commission payable on the sale of the said land. The general thrust of the defence is that the sales took place after the termination of the plaintiff’s appointment as agent or that other agents were involved.

The present application by the defendant is for security for costs pursuant to Rule 670 of the UCPR or s1335 of the Corporations Act 2001 (Cth). The defendant seeks the sum of $57,000.00 as security. The plaintiff contends that as the plaintiff’s directors and the majority shareholder Mr. Phillips have offered personal guarantees in the sum claimed by the defendant for security, that the application should be dismissed. It further contends at the hearing that as that offer was rejected, that the quantum of the amount sought is excessive. The plaintiff accepts…

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: [2005] QDC 223
Decision Date: 21st of July 2005

CaseChat Overview and Summary

In the case of GP Phillips and Co Pty Ltd v Stantec Pty Ltd, the dispute involved a claim for security of costs, with the plaintiff required to provide security in the sum of $15,000.00 to cover the defendant's costs. The proceedings were heard in the Queensland Supreme Court, with the court addressing the quantum and nature of the security required. The dispute centred on whether the security should be provided by the plaintiff in the form of personal guarantees by the directors of the plaintiff company, Mr Gordon Phillips and Ms Catherine Mary Palmer.

The legal issues the court had to decide included the appropriate quantum of security required and whether it was acceptable for the security to be provided by personal guarantees from the directors. The court considered the nature of the claim, the financial position of the plaintiff, and the risk of the defendant being left uncompensated for costs if the plaintiff were to fail in the action. It also had to consider whether the plaintiff had discharged its onus of establishing that it was unable to provide adequate security.

The court determined that the plaintiff should provide the security for the defendant's costs in the sum of $15,000.00, to be met by personal guarantees from Mr Gordon Phillips and Ms Catherine Mary Palmer. The court found that the plaintiff had not discharged its onus of establishing that it was unable to provide adequate security, and thus the requirement for security was upheld. The proceedings were to be stayed until the security was provided. The court also extended the time for the defendant to serve a Counterclaim and granted the plaintiff leave to withdraw a particular admission made in its pleadings. The court ordered that costs be awarded in the cause.

Orders

Orders of the court

1.That the plaintiff do provide security for the defendant’s costs in the sum of $15,000.00 by way of personal guarantees from Mr Gordon Phillips and Ms Catherine Mary Palmer.

2. That the proceedings be stayed until such time as the said security be given to the solicitors for the defendant.

3. That the time for service of a Counterclaim by the defendant provided for in rule 179 of the Uniform Civil Procedure Rules 1999 (Qld) be extended to 10 May 2005.

4. That the plaintiff be granted leave pursuant to rule 188 of the Uniform Civil Procedure Rules to withdraw the admission contained in paragraph 2(c) of its Reply filed on 20 December 2004 in the terms of paragraph 2(c) of its Amended Reply and Answer filed on 2 June 2005; and

5. Costs are to be costs in the cause.

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:	GP Phillips & Co Pty Ltd v Stantec Pty Ltd [2005] QDC 223
PARTIES:	GP PHILLIPS & CO PTY LTD (Plaintiff/Respondent) v STANTEC PTY LTD AS TRUSTEE FOR THE HUNTINGTON HOLDINGS UNIT TRUST (ACN 068 896 051) (Defendant/Applicant)
FILE NO/S:	BD2672/04
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	21^st of July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19^th of July 2005
JUDGE:	FORDE DCJ
ORDER:	1.That the plaintiff do provide security for the defendant’s costs in the sum of $15,000.00 by way of personal guarantees from Mr Gordon Phillips and Ms Catherine Mary Palmer. 2. That the proceedings be stayed until such time as the said security be given to the solicitors for the defendant. 3. That the time for service of a Counterclaim by the defendant provided for in rule 179 of the Uniform Civil Procedure Rules 1999 (Qld) be extended to 10 May 2005. 4. That the plaintiff be granted leave pursuant to rule 188 of the Uniform Civil Procedure Rules to withdraw the admission contained in paragraph 2(c) of its Reply filed on 20 December 2004 in the terms of paragraph 2(c) of its Amended Reply and Answer filed on 2 June 2005; and 5. Costs are to be costs in the cause.
CATCHWORDS:	SECURITY FOR COSTS – QUANTUM OF SECURITY – Nature of security – Costs assessment – personal guarantees by directors Corporations Act 2001 (Cth) s1335 Uniform Civil Procedure Rules rr 179, 670 Gallus Properties Pty Ltd and Ors. v Richardson and Ors [2004] QSC 415 Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306 at 314 Maggbury Pty Ltd and Anor. v. Hafele Australia and Anor [2000] QSC 220 Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304
COUNSEL:	Mr D Tucker for the Plaintiff/Respondent Mr R Jackson for the Defendant/Applicant
SOLICITORS:	Tucker & Cowen Corrs Chambers Westgarth