Hickey v IQ AG Pty Ltd

[2011] QDC 122

[2011] QDC 122

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1187 of 2004

GARRY JOSEPH HICKEY

And

MICROLIFE PTY LTD

Plaintiff

Plaintiff

and

IQ AG PTY LTD

and

MICHAEL McCOSKER

and

NEVILLE SIMCOCK

Defendant

Defendant

Defendant

AND

No 961 of 2011

COURT FUNDS REGULATION 2009           Applicant

and

CONSOLIDATED REVENUE TRANSFER             Applicant

and

REGISTRAR  Applicant

BRISBANE

..DATE 17/06/2011

ORDER

CATCHWORDS

Court Funds Regulation 2009 s 30, s 31
Uniform Civil Procedure Rules r 561

Without adjudication upon the merits, moneys lying idle in court ordered to be paid to the plaintiffs, in the absence of any opposition or rival claim (rather than to the Consolidated Fund)

HIS HONOUR:  This is 1187 of 2004, Hickey and Microlife Pty Ltd, plaintiffs v. IQ AG Pty Ltd and others, defendants.  The court makes an order in terms of the initialled draft, which is to the effect that all monies held by the Registrar in this matter, including any interest and accretions, which is included in a list of inactive accounts, be paid to the plaintiffs, pursuant to section 31(5) of the Court Funds Regulation 2009.  The order also stipulates that the Registrar is entitled to debit the costs of publishing the list and notices in this matter, from the monies held in court, pursuant to section 30(5) of the Court Funds Regulation 2009.

The successful plaintiff/applicants this morning were represented by Mr Dollar of counsel. There was no appearance for the defendants when the bailiff called them at the listed time. Today's hearing is one which the court directed on return of the Registrar's application for an order that the relevant funds, together with others in other proceedings, be paid to the consolidated fund. See [2011] QDC 93.

The view was taken that it was inappropriate to send the monies to the consolidated fund, the plaintiffs having taken some steps, but inadequate ones, consequent upon the Registrar giving notice of what was intended.

Directions were given to indicate that the plaintiff/applicants ought to turn up today rather than, as they seem to have been doing, trust to a happy issue from the mere posting to the court of an application under section 31, with a brief explanatory affidavit.

The section requires that the application and affidavit be served on the Registrar of the court, and on any other party to the relevant proceeding. In the latter respect, what is required is confirmed by rule 561 of the UCPR.

The Registrar may not have been formally served, at least with the later affidavit material, but through Mr Leonard today has waived any further service, and indicated willingness for the court to make the orders sought.  I'm not sure whether that implies any judgment that the applicants’ claim to the monies appears to be a good one.  The difficulty on the last occasion was that on the information that the court had, which was all rather old, entitlement to the monies was in dispute.

Mr Hickey has now provided a fuller affidavit, which tells more of the story, identifying him as the inventor of a biological growing process producing a soil conditioner, which was of interest to the defendant company, of which he and the individual defendants became directors.  He and/or the plaintiff company were engaged as consultants.  The monies paid into court equal a claim for $9060.16 for reimbursement of expenses incurred in the consultancy, which had been invoiced to the defendant company, and according to the affidavit were never challenged until a statutory demand threatening winding up was served.

The parties made arrangements leading to the setting aside of the statutory demand on the basis of the relevant amount being held pending resolution of the dispute.  The funds were initially held by former solicitors then acting for the present plaintiffs/applicants.  When they ceased to act they paid the funds into court.  The new solicitors have only now been engaged consequent upon the pot having been stirred, so to speak, by the Registrar's actions.

The Registry notified the next firm of solicitors on the record for the plaintiffs in the proceeding, who filed a reply on the 1st of June, 2004 and likewise the solicitors on the record for the defendants.  The former communicated to the Registry that they were no longer acting and that the correspondence had been forwarded to the plaintiffs, which probably is the explanation of the filing of their application which arrived in the post on the 28th of April, 2011.

The advice that went to the defendants' solicitors was returned by Australia Post, but the plaintiffs’ new solicitors, engaged after Mr Hickey filed the application in person, have managed to make contact with a member of the relevant firm, and obtained details of a more propitious fax number to be used than the one listed in court documents, and of a more propitious physical address.

A letter was sent out using those means to the principal of the firm (who advised that she recalled the matter), dated 7th of June, 2011.  It notified today's hearing, as well as enclosing correspondence from the court relating to the funds in court, and copies, in unsigned form, which was the best available at the time, of the application and original affidavit.  It was made clear that the defendants ought to appear in court today if they wished to be heard on the application.  They have not done so.

While it's impossible for the court to be sure that the plaintiffs’ claim is good, it is a claim that appears to be uncontested by the defendants, who presumably have no interest in resisting it now.

As Mr Dollar's written submissions say, each of the parties would appear to have a stronger entitlement to the funds than the consolidated fund.  Even if it were otherwise appropriate for there to be some more detailed inquiry into the merits, the amount involved is sufficiently modest to make avoidance incurring of further costs important.

Mr Hickey's latest affidavit explains the considerable amount of inaction in this proceeding in terms of his having to focus on Supreme Court proceedings that appear to involve some of the same parties and issues, also present aspects.  These are said to have been commenced in the New South Wales Supreme Court on or about 1st of August, 2005, and to have been subsequently transferred to the Supreme Court of Queensland to become BS3843 of 2007.  That case is still on-going, and Mr Hickey says he thought it better to devote his limited financial resources to that claim.  He goes further and says he believed the one in this court was "no longer operational.  I believed there was little or no likelihood of recovering the monies owed to me, and that even if I was successful, I'd not recover my costs."  It is perhaps good news for him that the Registrar is engaged in the housekeeping exercise, which has served to advance matters considerably, and to the plaintiffs’ advantage.

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