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Hambleton v Idec Solutions Pty Ltd

Hambleton v Idec Solutions Pty Ltd

Case [2020] QDC 17 5 March 2020

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DISTRICT COURT OF QUEENSLAND

CITATION:

Hambleton & Anor v Idec Solutions Pty Ltd [2020] QDC 17

PARTIES:

DAVID JAMES HAMBLETON AS LIQUIDATOR OF M&B RIGGING (QLD) PTY LTD (IN LIQUIDATION) ACN 148 170 923

(First Plaintiff)

AND

M&B RIGGING (QLD) PTY LTD (IN LIQUIDATION) ACN 148 170 923

(Second Plaintiff)

v

IDEC SOLUTIONS (PTY LTD) ACN 082 559 920
(Defendant)

FILE NO:

1461/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2019

JUDGE:

Porter QC DCJ

ORDER:

Application for security for costs against the First and Second Plaintiff dismissed.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – where the defendant seeks an order for security for costs under r 670 of the Uniform Civil Procedure Rules 1999 (Qld) or s 1335(1) of the Corporations Act 2001 (Cth) – where the First Plaintiff is the liquidator of the Second Plaintiff – where the liquidator is not a proper party to the proceedings but the defendant does not seek to have the liquidator removed as a plaintiff – whether the principle Harpur v Ariadne applies – whether it is open to the Court to order security for costs against the liquidator – whether the liquidator is suing for the benefit of another – whether there is reason to believe that the liquidator will not be able to pay the defendant’s costs if ordered to pay them

Uniform Civil Procedure Rules 1999 (Qld) rr 69, 670, 671, 672, 673

Corporations Act 2001 (Cth) ss 477, 1335

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Barnden v Zulian 133 ACSR 361

Devine v Lu (2018) 338 FLR 208

Go Gecko (Franchise) Pty Ltd v Plyable Pty Ltd & Anor [2017] QSC 329

Green v CGU (2008) 67 ACSR 105

Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523

Hession v Century 21 South Pacific Limited(in Liq) (1992) 28 NSWLR 120

Horn v York (1991) 5 ACSR 112

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75

JNJ Resources Pty Ltd v Crouch & Lyndon [2014] QSC 137

Kent v La Communaute des Soeurs de Charites de la Providence [1903] AC 220

Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377

Mitry v Business Australia Capital Finance Pty Ltd (in liquidation) [2010] NSWCA 360

Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2019] 3 Qd R 143

Park & MacIntosh v Lanray IndustriesPty Ltd [2010] QCA 257

Press Metal Aluminium (Australia) P/L v Total Concept Group P/L & Anor (No 2) [2014] QDC 186

Robson v Robson [2008] QCA 36

Schneider v Alusa & Ors [2012] QSC 37

Schokman v Hogg [2003] QCA

Upton & Anor v TVW Enterprises Ltd (1984) 4 FCR 121

Wong v Huisman [2009] QSC 266

COUNSEL:

N J Shaw for the first and second plaintiffs
M Trim for the defendant

SOLICITORS:

GRT Lawyers for the first and second…

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.

Continue reading Hambleton v Idec Solutions Pty Ltd

Details

AGLC: Hambleton v Idec Solutions Pty Ltd [2020] QDC 17
Case: [2020] QDC 17
Decision Date: 5 March 2020

CaseChat Overview and Summary

Idec Solutions Pty Ltd (the defendant) sought an order for security for costs under r 670 of the Uniform Civil Procedure Rules 1999 (Qld) or s 1335(1) of the Corporations Act 2001 (Cth) against the two plaintiffs, Hambleton (the first plaintiff) and the Second Plaintiff, a company in liquidation (the second plaintiff). The first plaintiff is the liquidator of the second plaintiff. The defendant did not seek to have the liquidator removed as a plaintiff but argued that the principle in Harpur v Ariadne applies and that it was open to the Court to order security for costs against the liquidator. The defendant argued that the liquidator is suing for the benefit of another and that there is reason to believe that the liquidator will not be able to pay the defendant’s costs if ordered to pay them.

The court considered whether the principle in Harpur v Ariadne applies and whether it was open to the Court to order security for costs against the liquidator. The court found that the principle in Harpur v Ariadne does apply and that it was open to the Court to order security for costs against the liquidator. However, the court found that there was no reason to believe that the liquidator will not be able to pay the defendant’s costs if ordered to pay them. The court found that the liquidator is not suing for the benefit of another and that the second plaintiff is suing for its own benefit.

The application for security for costs against the first and second plaintiff was dismissed. The court found that there was no reason to believe that the liquidator will not be able to pay the defendant’s costs if ordered to pay them. The court found that the liquidator is not suing for the benefit of another and that the second plaintiff is suing for its own benefit. The court found that the defendant had not established the necessary criteria for an order for security for costs.

Orders

Orders of the court

1. Application for security for costs against the First and Second Plaintiff dismissed.

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.

Citations

AGLC Citation

Hambleton v Idec Solutions Pty Ltd [2020] QDC 17

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Cases cited in this decision · 19 of 19 shown

Devine v Liu; Devine v Ho
[2018] NSWSC 1453 Para 5

…orations Act ,[10] Mr Shaw could identify no Australian case where this proposition has been recognised as correct. Nor could I. [10] See Devine v Lu (2018) 338 FLR 208 at [135] to [136]…
Go Gecko (Franchise) Pty Ltd v Plyable Pty Ltd
[2017] QSC 329 Para 1

…pectful view, it does not assist to characterise the condition as demanding or undemanding. [1] Go Gecko (Franchise) Pty Ltd v Plyable Pty Ltd & Anor [2017] QSC 329 at [66] and Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 at [16]…
Press Metal Aluminium (Australia) P/L v Total Concept Group P/L (No 2)
[2014] QDC 186 Para 8

…here the plaintiff’s delay, prospects and means were relied upon) and Press Metal Aluminium (Australia) P/L v Total Concept Group P/L & Anor (No 2) [2014] QDC 186.…
JNJ Resources Pty Ltd v Crouch & Lyndon (a firm) (No 2)
[2014] QSC 137 Para 4

…reshold question of whether an order may be made against any plaintiff[6] was confirmed by Justice Jackson in JNJ Resources Pty Ltd v Crouch & Lyndon [2014] QSC 137 at [16]. That approach was adopted by Judge Dorney QC in this Court in Press Metal Aluminium (Australia) P/L v Total Concept . I adopt the same appro…
Wollongong City Council v Legal Business Centre Pty Ltd
[2012] NSWCA 245 Para 1

…sion of this Court applying the provisions, Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 (Wollongong City Council). In that case, Beazley JA (as her Honour then was) (with whom Barrett JA agreed) referred to the onus of the applicant for security as being to establish “that there is reas…
Schneider v Alusa
[2012] QSC 37 Para 8

…udgments in Robson and subsequent judgments which deal with specific circumstances in which provision has been raised.[3] [3] Schneider v Alusa & Ors [2012] QSC 37 at [26] to [51] (where the plaintiff’s delay, prospects and means were relied upon) and Press Metal Aluminium (Australia) P/L v Total Concept Group P…
Mitry v Business Australia Capital Finance Pty Ltd (in liquidation)
[2010] NSWCA 360 Para 6

…Kent was applied by the New South Wales Court of Appeal in Mitry v Business Australia Capital Finance Pty Ltd (in liquidation) [2010] NSWCA 360 to permit the liquidator to substitute the company in liquidation as plaintiff for the liquidator where the liquidator had commenced proceedings in his own name within time…
Park & McIntosh v Lanray Industries Pty Ltd
[2010] QCA 257 Para 2

…of the company. It does not confer standing on the liquidator personally to advance such claims.[8] [8] Park & MacIntosh v Lanray Industries Pty Ltd [2010] QCA 257 at [9]…
Mbuzi v Hall
[2010] QSC 359 Para 9

…23 [5] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at [91] and see the review of authority by Applegarth J in Mbuzi v Hall [2010] QSC 359 at [57] to [70]…
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd
[2009] HCA 43 Para 9

…fied in r. 671(a) to (g). [4] Schokman v Hogg [2003] QCA; Harpur v Ariadne [1984] 2 Qd R 523 [5] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at [91] and see the review of authority by Applegarth J in Mbuzi v Hall [2010] QSC 359 at [57] to [70]…
Wong & Global Cement Australia P/L v Huisman
[2009] QSC 266 Para 1

…int plaintiff would count against ordering security, it remains a matter that informs the exercise of the discretion in each case. [7] Wong v Huisman [2009] QSC 266…
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd
[2008] NSWCA 148 Para 1

…y arises by reason of the fact that the first plaintiff is a liquidator. The issue was reviewed by the New South Wales Court of Appeal in Green v CGU (2008) 67 ACSR 105.…
Livingspring Pty Ltd v Kliger Partners
[2008] VSCA 93 Para 1

…demanding or undemanding. [1] Go Gecko (Franchise) Pty Ltd v Plyable Pty Ltd & Anor [2017] QSC 329 at [66] and Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 at [16]…
Robson v Robson
[2008] QCA 36 Para 4

…do not lend themselves to exhaustive articulation of the circumstances where they can apply. The scope of r. 671(h) was considered in Robson v Robson [2008] QCA 36 in the context of whether the factors mentioned in r. 672 were relevant to a consideration of whether the condition specified in the injustice ground…
Transglobal Capital Pty Ltd v Yolarno Pty Ltd
[2004] NSWCA 136 Para 4

…noted also that mere inability to meet costs orders does not amount to special circumstances ( Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136) and thus does not of itself put an onus on an appellant to prove that an order for security would stultify the appeal. (2) Where the plaintiff is a company…
Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd
[1992] FCA 592 Para 4

…liquidator is a proper party, he may be liable for the defendant’s costs. I do not accept that Hession v Century 21 South Pacific Limited (in Liq) (1992) 28 NSWLR 120 at p. 123 is authority for that specific proposition. However, the defendant’s proposition is in my view correct. If a plaintiff wrongly asserts a caus…
Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd
[1987] FCA 102 Para 4

…port Corporation (No 2) (1984) 8 ACLR 588) and there is no presupposition in favour of granting security ( Bryan E Fincott P/L v Eretta P/L (1987) 16 FCR 497). However, the court will not refuse to order security on the ground that this will frustrate the litigation unless the company proves that those who stand beh…
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc
[1981] HCA 39 Para 5

…n for security could then properly be brought, given the change in circumstances.[11] [11] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170…
[1903] AC 220
[1903] AC 220 Para 3

…advancing the claim and was a proper party. Mr Shaw relied on the Privy Council decision Kent v La Communaute des Soeurs de Charites de la Providence [1903] AC 220. In this case, liquidators of a Canadian bank had sued in their own names to recover on a promissory note issued in favour of the bank. The matter pr…

Legislation cited in this decision · 4

Uniform Civil Procedure Rules 1999 (Qld)
670, 671, 672, 673, 69 6 mentions
Corporations Act 2001 (Cth)
1335, 477 3 mentions (from Para 5)
Supreme Court (General Civil Procedure) Rules 2005 (Vic)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

CITATION:	Hambleton & Anor v Idec Solutions Pty Ltd [2020] QDC 17
PARTIES:	DAVID JAMES HAMBLETON AS LIQUIDATOR OF M&B RIGGING (QLD) PTY LTD (IN LIQUIDATION) ACN 148 170 923 (First Plaintiff) AND M&B RIGGING (QLD) PTY LTD (IN LIQUIDATION) ACN 148 170 923 (Second Plaintiff) v IDEC SOLUTIONS (PTY LTD) ACN 082 559 920 (Defendant)
FILE NO:	1461/19
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6 December 2019
JUDGE:	Porter QC DCJ
ORDER:	Application for security for costs against the First and Second Plaintiff dismissed.
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – where the defendant seeks an order for security for costs under r 670 of the Uniform Civil Procedure Rules 1999 (Qld) or s 1335(1) of the Corporations Act 2001 (Cth) – where the First Plaintiff is the liquidator of the Second Plaintiff – where the liquidator is not a proper party to the proceedings but the defendant does not seek to have the liquidator removed as a plaintiff – whether the principle Harpur v Ariadne applies – whether it is open to the Court to order security for costs against the liquidator – whether the liquidator is suing for the benefit of another – whether there is reason to believe that the liquidator will not be able to pay the defendant’s costs if ordered to pay them Uniform Civil Procedure Rules 1999 (Qld) rr 69, 670, 671, 672, 673 Corporations Act 2001 (Cth) ss 477, 1335 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Barnden v Zulian 133 ACSR 361 Devine v Lu (2018) 338 FLR 208 Go Gecko (Franchise) Pty Ltd v Plyable Pty Ltd & Anor [2017] QSC 329 Green v CGU (2008) 67 ACSR 105 Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 Hession v Century 21 South Pacific Limited(in Liq) (1992) 28 NSWLR 120 Horn v York (1991) 5 ACSR 112 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 JNJ Resources Pty Ltd v Crouch & Lyndon [2014] QSC 137 Kent v La Communaute des Soeurs de Charites de la Providence [1903] AC 220 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 Mitry v Business Australia Capital Finance Pty Ltd (in liquidation) [2010] NSWCA 360 Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2019] 3 Qd R 143 Park & MacIntosh v Lanray IndustriesPty Ltd [2010] QCA 257 Press Metal Aluminium (Australia) P/L v Total Concept Group P/L & Anor (No 2) [2014] QDC 186 Robson v Robson [2008] QCA 36 Schneider v Alusa & Ors [2012] QSC 37 Schokman v Hogg [2003] QCA Upton & Anor v TVW Enterprises Ltd (1984) 4 FCR 121 Wong v Huisman [2009] QSC 266
COUNSEL:	N J Shaw for the first and second plaintiffs M Trim for the defendant
SOLICITORS:	GRT Lawyers for the first and second…