Hansen Yunken Pty Ltd (A.C.N. 063 384 056) v Ericson

[2012] QSC 226

SUPREME COURT OF QUEENSLAND

CITATION:

Hansen Yunken Pty Ltd (A.C.N.  063 384 056) v Ericson [2012] QSC 226

PARTIES:

HANSEN YUNCKEN PTY LTD (A.C.N. 063 384 056)

(Applicant)

v

IAN JAMES ERICSON TRADING AS FLEA’S CONCRETING (A.B.N 86 016 599 870)

 (First Respondent)

and

PHILIP DAVENPORT

 (Second Respondent)

FILE NO/S:

BS 7864/09

DIVISION:

Trial Division

PROCEEDING:

Costs Judgment

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

20 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2012

JUDGE:

Philip McMurdo J

ORDER:

1. Pursuant to Rule 561 of the Uniform Civil Procedure Rules 1999 (Qld), the sum of $120,000 be made out of Court to Gary William Walsh of 107 North Quay, Brisbane from the monies paid into Court by Hansen Yuncken Pty Ltd on or about 6 December 2011 pursuant to the order made on 5 December 2011.

CATCHWORDS:

Uniform Civil Procedure Rules 1999 (Qld), r 561

COUNSEL:

B Walsh on own behalf as a creditor of First Respondent

Mr Colson for third party creditor of First Respondent

SOLICITORS:

MSL Lawyers for third party creditor

Mr G W Walsh of counsel applies for an order for the payment of some of the monies in Court in these proceedings which are held in Court pursuant to orders I made on 5 December 2011.  The disposition of these funds had been disputed by the Deputy Commissioner of Taxation, who claimed to have a charge over them in priority to that of any other person.  I held otherwise in a judgment I delivered on 14 March 2012.  The Deputy Commissioner appealed against that judgment, but the appeal has since been dismissed by consent.

The position, which appeared from the facts which I considered in that judgment, was that once the Commissioner's claim was put on one side, the amount which was in Court would be sufficient to pay the claims of all of those who, to that point, had indicated an entitlement or a claim to an entitlement to some security over the assets of Mr Ericson.

This morning, Mr Coulsen of counsel appeared for the company Lindens Pty Ltd, a substantial creditor of Mr Ericson, but upon taking further instructions, Mr Coulsen informed me that his client did not oppose the order sought by Mr Walsh but would wish to be heard in relation to any further orders for the disposition of the balance of the funds.

Mr Walsh appeared for Mr Ericson on a direct briefing basis throughout this long trial.  It should be noted that Mr Ericson was very ably represented by him.

The funds which are in Court can fairly be described as the fruits of the proceedings, although it was Hansen Yuncken Pty Ltd which brought those proceedings.

No-one disputes that Mr Walsh is entitled in these circumstances to an equitable charge over, in particular, the funds which are in Court.

Of those who previously indicated an interest as secured creditors of Mr Ericson, none has objected to the orders sought by Mr Walsh, and there is no objection from Mr Ericson's Trustees in Bankruptcy.

It is, I think, unnecessary that Mr Walsh be formally joined as a party to the proceeding under Rule 69.  Therefore, the order which will be made is that proposed by his draft in paragraph 2.

It will be ordered that, pursuant to Rule 561 of the Uniform Civil Procedure Rules, the following payment out of Court be made from the monies paid into Court by Hansen Yuncken Pty Ltd on or about 6 December 2011 pursuant to my order made on
5 December 2011, that is to say, the sum of $120,000 to Gary William Walsh of 107 North Quay, Brisbane.