Greg Black Constructions Pty Ltd v Brodie and Anor

CITATION: Greg Black Constructions Pty Ltd v Brodie and Anor [2011] QCAT 671

PARTIES:	Greg Black Constructions Pty Ltd
v
Mr Miles Brodie Mrs Suzanne Holt

APPLICATION NUMBER:   BDL251-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 21 December 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    The application for security for costs is dismissed.

2.    The application for further and better particulars of the claim is dismissed.

CATCHWORDS:

PROCEDURE – SECURITY FOR COSTS – where applicant is a company with paid up capital of $1 – where parties have not yet attended compulsory conference – where a number of early applications – whether security for costs should be ordered

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28(3)(d), 29, 69, 109(4)

Lyons v Dreamstarters Pty Ltd [2011] QCATA 142
F.K. Gardner & Sons Pty Ltd v Grant [2010] QCAT 585

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Greg Black Constructions Pty Ltd (“GBC”) signed an agreement with Dr Brodie and Ms Holt to construct alterations and additions to their home.  It was a building contract of significant value.  Unsurprisingly, the parties fell into dispute: GBC filed an application in the tribunal claiming that it has not been paid all of the money to which it is entitled and Dr Brodie and Ms Holt have responded with a significant counterclaim for rectification and overpayments.

2. Dr Brodie and Ms Holt have applied for security for costs from GBC in the sum of $50,000.  They have also asked for an order requiring GBC to provide further and better particulars of its claim.

Security for costs

1. The tribunal may make an order for security for costs having regard to[1]:

a)The financial circumstances of the parties.

b)The prospects of success or merits of the proceeding.

c)The genuineness of the proceeding.

d)Anything else the tribunal considers relevant.

[1] Section 109(4) Queensland Civil and Administrative Tribunal Act 2009.

The financial circumstances of the parties

1. Dr Brodie and Ms Holt have submitted that the material demonstrates GBC has no capacity to meet a costs order if the tribunal makes one.  They correctly point out that the company has a paid up share capital of $1 and has three registered charges.  They submit that a proper reading of GBC’s balance sheet as at 12 September 2011 show that the company is technically insolvent as its current liabilities exceed its current assets by a significant degree.

2. As evidence of its ability to meet a costs order GBC relies upon: the fact that it has recently renewed its QBSA licence; the deed of covenant and assurance that the sole director, Mr Black, provided to the QBSA; and that there is over $50,000 of retention money in a joint account in the name of GBC and Dr Brodie and Ms Holt.

3. Section 109(4)(a) of…