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Hyperion Technology Pty Ltd v Queensland Motorways Ltd

Hyperion Technology Pty Ltd v Queensland Motorways Ltd

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Case Copied 19 February 2013 31 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Hyperion Technology Pty Ltd v Queensland Motorways Ltd [2013] QSC 20

PARTIES:

HYPERION TECHNOLOGY PTY LTD
ABN 81 088 969 886
(plaintiff)
v
QUEENSLAND MOTORWAYS LIMITED
ABN 50 067 242 513
(defendant)

FILE NO:

SC No 12127 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2012

Written submissions

JUDGE:

Daubney J

ORDERS:

1. Within 28 days, the plaintiff shall provide, in a form satisfactory to the Registrar, security for the defendant’s costs up to and including the first day of trial in the amount of $400,000.

2. The plaintiff shall pay the defendant’s costs, including any reserved costs, of and incidental to the application for security for costs.

CATCHWORDS:

CORPORATIONS – LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS – EXTERNAL LITIGATION PROCEDURE – COSTS – SECURITY FOR COSTS – DISCRETION OF COURT – where plaintiff contended that contract had been repudiated by defendant – where plaintiff challenged defendant’s application for security for costs order – where plaintiff contended that defendant’s delay caused prejudice – where plaintiff contended that security for costs order would be oppressive – where no security offered by plaintiff’s shareholders or creditors - where plaintiff contended that plaintiff’s financial position was caused by defendant’s conduct - whether discretion to order security for costs should be exercised

CORPORATIONS – LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS – EXTERNAL LITIGATION PROCEDURE – COSTS – SECURITY FOR COSTS – QUANTUM AND SUFFICIENCY – where dispute as to quantum of costs – where expert evidence as to costs likely to be incurred relied upon– whether discretion to order security for costs should be exercised

Uniform Civil Procedure Rules 1999 (Qld)
Corporations Act 2001 (Cth)

Australia Equity Investors v Colliers International (NSW) Pty Ltd [2012] FCAFC 322, considered
Aqua Blue (Noosa) Pty Ltd v Soil Surveys Engineering Pty Ltd [2010] QSC 176, considered
Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, considered
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 52 ALR 176, considered
Bryan E Fencott and Assoc Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, considered
Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262, considered
Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523, considered
Jazabas Pty Ltd v Haddad (2007) 65 ASCR 276, considered
MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97, considered
Sharjade v Darwinia Estate [2008] NSWSC 569, considered
Specialized Explosives Blasting & Training Pty Ltd v Huddy’s Plant Hire Pty Ltd [2009] QCA 254, considered
Telford Property Ltd v Ackama Investments Pty Ltd (unreported QSC No 896/86, 24 October 1986), distinguished
Westralian Gold Mines Ltd v Westralian Minerals & Drilling Pty Ltd (in liq) (1986) 4 ACLC 167, considered

COUNSEL:

G A Thompson SC and GD Sheahan for the Plaintiff
D R Cooper SC and C Wilson…

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: [2013] QSC 20
Decision Date: 19 February 2013

CaseChat Overview and Summary

Hyperion Technology Pty Ltd commenced legal action against Queensland Motorways Ltd, alleging that the latter had repudiated a contractual agreement. Hyperion challenged the defendant's application for an order requiring security for costs, arguing that the defendant's delay caused prejudice and that the order would be oppressive. The plaintiff further contended that its financial position was due to the defendant's conduct. The court was required to determine whether the discretion to order security for costs should be exercised, considering the nature of the dispute and the financial implications for both parties.

The court examined the legal principles surrounding the discretion to order security for costs, particularly in light of the plaintiff's financial position and the potential prejudice caused by the defendant's delay. The court considered expert evidence regarding the likely costs that would be incurred in the proceeding and assessed the sufficiency of the proposed security. It also weighed the contentions that the plaintiff's financial difficulties were due to the defendant's conduct and that the order for security would be oppressive. The court had to balance these considerations in exercising its discretion.

Upon evaluating the evidence and arguments, the court found that the plaintiff's financial situation did not preclude the imposition of an order for security for costs. The court was satisfied that the proposed amount of $400,000 was sufficient to cover the defendant's costs up to and including the first day of trial. The court ruled that the discretion to order security for costs should be exercised and made the requisite order, along with a direction for the plaintiff to pay the defendant's costs associated with the application.

Orders

Orders of the court

1. Within 28 days, the plaintiff shall provide, in a form satisfactory to the Registrar, security for the defendant’s costs up to and including the first day of trial in the amount of $400,000.

2. The plaintiff shall pay the defendant’s costs, including any reserved costs, of and incidental to the application for security for costs.

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:	Hyperion Technology Pty Ltd v Queensland Motorways Ltd [2013] QSC 20
PARTIES:	HYPERION TECHNOLOGY PTY LTD ABN 81 088 969 886 (plaintiff) v QUEENSLAND MOTORWAYS LIMITED ABN 50 067 242 513 (defendant)
FILE NO:	SC No 12127 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	19 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	11 July 2012 Written submissions
JUDGE:	Daubney J
ORDERS:	1. Within 28 days, the plaintiff shall provide, in a form satisfactory to the Registrar, security for the defendant’s costs up to and including the first day of trial in the amount of $400,000. 2. The plaintiff shall pay the defendant’s costs, including any reserved costs, of and incidental to the application for security for costs.
CATCHWORDS:	CORPORATIONS – LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS – EXTERNAL LITIGATION PROCEDURE – COSTS – SECURITY FOR COSTS – DISCRETION OF COURT – where plaintiff contended that contract had been repudiated by defendant – where plaintiff challenged defendant’s application for security for costs order – where plaintiff contended that defendant’s delay caused prejudice – where plaintiff contended that security for costs order would be oppressive – where no security offered by plaintiff’s shareholders or creditors - where plaintiff contended that plaintiff’s financial position was caused by defendant’s conduct - whether discretion to order security for costs should be exercised CORPORATIONS – LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS – EXTERNAL LITIGATION PROCEDURE – COSTS – SECURITY FOR COSTS – QUANTUM AND SUFFICIENCY – where dispute as to quantum of costs – where expert evidence as to costs likely to be incurred relied upon– whether discretion to order security for costs should be exercised Uniform Civil Procedure Rules 1999 (Qld) Corporations Act 2001 (Cth) Australia Equity Investors v Colliers International (NSW) Pty Ltd [2012] FCAFC 322, considered Aqua Blue (Noosa) Pty Ltd v Soil Surveys Engineering Pty Ltd [2010] QSC 176, considered Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, considered Bell Wholesale Co Ltd v Gates Export Corporation (1984) 52 ALR 176, considered Bryan E Fencott and Assoc Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, considered Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262, considered Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523, considered Jazabas Pty Ltd v Haddad (2007) 65 ASCR 276, considered MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97, considered Sharjade v Darwinia Estate [2008] NSWSC 569, considered Specialized Explosives Blasting & Training Pty Ltd v Huddy’s Plant Hire Pty Ltd [2009] QCA 254, considered Telford Property Ltd v Ackama Investments Pty Ltd (unreported QSC No 896/86, 24 October 1986), distinguished Westralian Gold Mines Ltd v Westralian Minerals & Drilling Pty Ltd (in liq) (1986) 4 ACLC 167, considered
COUNSEL:	G A Thompson SC and GD Sheahan for the Plaintiff D R Cooper SC and C Wilson…