Iezzi Constructions P/L v C and E Pty Ltd - [2005] QSC 158

SUPREME COURT OF QUEENSLAND

CITATION:

Iezzi Constructions P/L v C & E Pty Ltd [2005] QSC 158

PARTIES:

IEZZI CONSTRUCTIONS PTY LTD (IN LIQUIDATION)
(plaintiff)

v

C & E PTY LTD (FORMERLY TERRY SEIRLIS CONSTRUCTIONS PTY LTD)
(defendant)

FILE NO:

S8485 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

10 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2005

JUDGE:

Wilson J

ORDERS:

Security ordered up to and including the first day of trial in the sum of $85 000.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – PRACTICE MATTERS – where the defendant seeks security for costs against the plaintiff – where the plaintiff is a company in liquidation – where the liquidators concede that this is an appropriate case for security

EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – IN GENERAL – joint appointment of expert – Practice Direction No 2 of 2005 – whether security should be ordered before consideration of joint appointment of expert – quantum of security

Uniform Civil Procedure Rules 1999 (Qld), Chapter 11 Part 5

COUNSEL:

G J Robinson for the plaintiff
T Matthews for the defendant

SOLICITORS:

Dibbs Barker Gosling for the plaintiff
MacDonnells Solicitors for the defendant

Wilson J: This is an application by the defendant for security for costs pursuant to r. 670 of the UCPR. The plaintiff is a company in liquidation, and the liquidators concede that this is an appropriate case for security.

The defendant seeks security to the first day of the trial in the sum of approximately $180,000.00. The defendant offers security in the form of a joint and several guarantee of the liquidators in the sum of $60,000.00.

The proceeding was commenced in 2002. It arises out of a contract for the construction of 65 residential apartments. The contract price is alleged to have been $9.35 million. The claim of the plaintiff at its highest is for approximately $800,000.00 being the cost of work performed plus net profit less amounts paid. There are alternative claims for lesser amounts. There is a counter claim for approximately $100,000.00.

There have been several interlocutory applications since the proceeding was commenced. On 5 May 2005 Justice PD McMurdo ordered that the proceeding be placed on the supervised case list. His Honour gave directions with respect to particulars and disclosure, and directed the defendant to file any application for security for costs or for leave to make the counterclaim on or before 13 May 2005. It is pursuant to that direction that the present application was filed and comes before the Court.

The applicant relied upon a draft bill of costs prepared by its solicitor Mr Marshall. A broad outline of that draft bill is as follows:-

Preparation for trial –

Professional fees $91,370.60

Disbursements $120,860.00

Total$212,230.60

Preparation for trial

First day of trial professional fees $2,204.00

Disbursements ___$22.00

Total$2,226.00

Thus the total of the estimated fees and disbursements was $214,456.60, and after an adjustment for GST the sum of $190,866.38 was…

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: [2005] QSC 158
Decision Date: 10 June 2005

CaseChat Overview and Summary

In the case of Iezzi Constructions P/L v C and E Pty Ltd, the defendant, C and E Pty Ltd, sought security for costs against Iezzi Constructions P/L, a company in liquidation. The matter was heard in the Supreme Court of New South Wales. The primary concern was whether the defendant should be granted security for costs before the joint appointment of an expert, in accordance with Practice Direction No 2 of 2005, and if so, what the quantum of that security should be. The liquidators of Iezzi Constructions P/L conceded that this was an appropriate case for security.

The court was required to determine whether it should order security for costs before considering the joint appointment of an expert, and if so, what amount should be ordered. The court noted that the decision to grant security for costs is discretionary and hinges on the circumstances of the case. Given that the liquidators conceded this was an appropriate case for security, the court proceeded to assess the quantum. The court considered factors such as the financial position of the defendant, the complexity of the case, and the potential costs involved.

After careful consideration, the court ordered security for costs up to and including the first day of trial in the sum of $85,000. The court reasoned that this amount was sufficient to cover the anticipated costs and provided a fair balance between the interests of both parties. The decision was made in light of the concession by the liquidators and the need to ensure that the defendant would not be prejudiced by the absence of security. This ruling aimed to maintain the integrity of the proceedings and ensure that the case could proceed without undue financial burden on either party.

The final order was that security for costs in the sum of $85,000 was granted to C and E Pty Ltd. This amount was deemed adequate to cover the costs up to and including the first day of trial, reflecting the court's balanced approach to the matter.

Orders

Orders of the court

Security ordered up to and including the first day of trial in the sum of $85 000.

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:	Iezzi Constructions P/L v C & E Pty Ltd [2005] QSC 158
PARTIES:	IEZZI CONSTRUCTIONS PTY LTD (IN LIQUIDATION) (plaintiff) v C & E PTY LTD (FORMERLY TERRY SEIRLIS CONSTRUCTIONS PTY LTD) (defendant)
FILE NO:	S8485 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	10 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2005
JUDGE:	Wilson J
ORDERS:	Security ordered up to and including the first day of trial in the sum of $85 000.
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – PRACTICE MATTERS – where the defendant seeks security for costs against the plaintiff – where the plaintiff is a company in liquidation – where the liquidators concede that this is an appropriate case for security EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – IN GENERAL – joint appointment of expert – Practice Direction No 2 of 2005 – whether security should be ordered before consideration of joint appointment of expert – quantum of security Uniform Civil Procedure Rules 1999 (Qld), Chapter 11 Part 5
COUNSEL:	G J Robinson for the plaintiff T Matthews for the defendant
SOLICITORS:	Dibbs Barker Gosling for the plaintiff MacDonnells Solicitors for the defendant