GSM Operations Pty Ltd v Neilsen - [2011] QSC 76

SUPREME COURT OF QUEENSLAND

CITATION:

GSM Operations Pty Ltd v Neilsen & Ors [2011] QSC 76

PARTIES:

GSM (OPERATIONS) PTY LTD ACN 085 950 803

(plaintiff)

v

PAUL GREGORY NEILSEN

(first defendant)

and

AHMED EL-SAFTY

(second defendant)

and

JOHN HASSAN

(third defendant)

FILE NO/S:

BS11925/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

22 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2011

JUDGE:

Dalton J

ORDER:

The proceedings are reactivated.

CATCHWORDS:

Practice direction 4/2002 – reactivation of matter deemed resolved – affidavit explaining and justifying – relevant matters for consideration – merits – prejudice – interlocutory nature of deemed resolved order and application to reactivate.

Uniform Civil Procedure Rules 1999

Corporations Act 2001

Multi-Service Group Pty Ltd (in liquidation) & Anor v Osborne & Anor [2010] QCA 72

Barton v Atlantic 3 - Financial (Aust) Pty Ltd & Anor [2010] QCA 223

Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund [1996] FCA 822

David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265

COUNSEL:

Mr M Bland for the applicant plaintiff.

Mr C D Coulsen for the respondent second defendant.

SOLICITORS:

Minter Ellison Gold Coast for the plaintiff.

QBM Lawyers for the second defendant.

DALTON J: This is an application brought by the plaintiff against the second defendant for reactivation of the proceeding after it was deemed resolved.

The Proceeding

The plaintiff alleges that the second defendant guaranteed debts of a company incurred on a trading account established between the plaintiff and that company. It alleges that between November 2007 and May 2008 the plaintiff sold goods to the company for a price of $674,000 which was not paid. It is alleged that demand was made on the guarantee and that demand was not met.

The second defendant admits he did give a guarantee, but says it was subject to the first and third defendants also guaranteeing the amounts owing on the trading account. He says that as the first and third defendants never provided guarantees, he is not liable on his. The second defendant denies he has received a demand and says that a demand is necessary pursuant to the terms of the guarantee.

Progress of the Proceeding

For a simple matter this proceeding has a complicated history. A claim and statement of claim were filed in November 2008. Before they were served on the second defendant, an amended statement of claim was filed. Then, surprisingly, the claim and original statement of claim were served on the second defendant in October, 2009. Before the amended statement of claim was served on the second defendant, solicitors acting for him sent the plaintiff’s solicitors a letter requesting copies of the documents referred to in the amended pleading pursuant to r 222 of the Uniform Civil Procedure Rules 1999. On 3 December 2009 the plaintiff’s solicitors served the amended statement of claim on the second defendant and provided documents in response to the r 222 request. The plaintiff filed…

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: [2011] QSC 76
Decision Date: 22 March 2011

CaseChat Overview and Summary

The case of GSM Operations Pty Ltd v Neilsen involved a dispute between two parties concerning the reactivation of proceedings that had been deemed resolved. The application to reactivate was made in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the application to reactivate the proceedings, pursuant to Practice Direction 4/2002, was appropriate given that the matter had been deemed resolved. Specifically, the court needed to determine if the applicant had provided a sufficient affidavit that justified the reactivation and if such a reactivation would cause any prejudice to the opposing party.

The court examined the affidavit provided by the applicant, which outlined the reasons for the delay in filing the application and the steps taken to mitigate any prejudice to the opposing party. The court considered the relevant factors, including whether the application was made within a reasonable time, the justification for the delay, and whether the applicant had taken steps to mitigate any prejudice that might result from the delay. The court also assessed whether the merits of the case warranted the reactivation of the proceedings. After reviewing these considerations, the court concluded that the application to reactivate was appropriate and that there was no significant prejudice to the opposing party.

The court's reasoning was that while the proceedings had been deemed resolved, the application to reactivate was justified due to the affidavit provided by the applicant. The court found that the applicant had adequately explained the reasons for the delay and had taken reasonable steps to mitigate any prejudice. Consequently, the court exercised its discretion to reactivate the proceedings. The final orders of the court were to reactivate the proceedings, allowing the matter to proceed on its merits.

Orders

Orders of the court

The proceedings are reactivated.

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:	GSM Operations Pty Ltd v Neilsen & Ors [2011] QSC 76
PARTIES:	GSM (OPERATIONS) PTY LTD ACN 085 950 803 (plaintiff) v PAUL GREGORY NEILSEN (first defendant) and AHMED EL-SAFTY (second defendant) and JOHN HASSAN (third defendant)
FILE NO/S:	BS11925/08
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	22 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2011
JUDGE:	Dalton J
ORDER:	The proceedings are reactivated.
CATCHWORDS:	Practice direction 4/2002 – reactivation of matter deemed resolved – affidavit explaining and justifying – relevant matters for consideration – merits – prejudice – interlocutory nature of deemed resolved order and application to reactivate. Uniform Civil Procedure Rules 1999 Corporations Act 2001 Multi-Service Group Pty Ltd (in liquidation) & Anor v Osborne & Anor [2010] QCA 72 Barton v Atlantic 3 - Financial (Aust) Pty Ltd & Anor [2010] QCA 223 Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund [1996] FCA 822 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
COUNSEL:	Mr M Bland for the applicant plaintiff. Mr C D Coulsen for the respondent second defendant.
SOLICITORS:	Minter Ellison Gold Coast for the plaintiff. QBM Lawyers for the second defendant.