Imagatec P/L v Gosley-Fuller - [2012] QDC 15

DISTRICT COURT OF QUEENSLAND

CITATION:

Imagatec P/L v Gosley-Fuller [2012] QDC 15

PARTIES:

IMAGATEC PTY LTD
(Plaintiff)

v

NARELLE GOSLEY-FULLER
(Defendant)

FILE NO/S:

4515/2011

DIVISION:

Applications

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2012

JUDGE:

Dorney QC, DCJ

ORDERS:

1. Application for a stay (as appears in the Amended Application) is dismissed
2. The applicant/defendant pay the respondent/plaintiff’s costs of and incidental to this application to be assessed on the standard basis

CATCHWORDS:

PROCEDURE – Stay of proceedings – Where both Federal Magistrates Court of Australia proceedings and Queensland District Court proceeding concurrent – Considerations relevant to stay – Proceeding in District Court raising a question already arising, with others, in earlier commenced Family Court of Australia proceedings – Whether District Court proceeding an abuse of process

District Court of Queensland Act 1967 (Qld) ss 69(1), 69(2)(c)

Family Law Act 1975 (Cth) Part VIIIA, ss 79, 90AE, 90AF

Uniform Civil Procedure Rules 1999 (Qld) rr 16, 16(g), 171(1)(e)

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256

Century Yuasa Batteries Pty Ltd v Century Batteries Holdings Pty Ltd [2004] QSC 271

Dupas v The Queen (2010) 241 CLR 237

Flynn v Suncorp-Metway Ltd [2009] QSC 175

Henry v Henry (1999) 185 CLR 571

Jago v District Court of New South Wales (1989) 168 CLR 23

Kinglsey v Kendle [2010] FamCA 598

Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCAFC 117

Puddy & Grossvard and Anor [2010] FLC 93-432

R v Higgins [2006] QDC 369

Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287

Union Steamship Co of New Zealand v The Ship Caradale (1937) CLR 277

COUNSEL:

A C Barlow for the Plaintiff
C A Johnstone for the Defendant

SOLICITORS:

Family Law Doyle Keyworth and Harris for the Plaintiff
Dixie Ann Middleton and Associates for the Defendant

Introduction

In this proceeding the plaintiff company claims, essentially, against the defendant $174,418.23 as equitable compensation for breach of fiduciary duty. The Claim and Statement of Claim were filed on 9 November 2011.

The defendant, by an action in the Federal Magistrates Court of Australia (“FMCA”), Brisbane Registry, filed on 31 August 2010, initiated proceedings concerning parenting and property settlement orders. The respondent there is the defendant’s husband, who is also one of two directors of the plaintiff company. The relevant ASIC extract shows that the second director is Trevor Robert Turnbull. There is no evidence that the defendant’s husband is the sole directing mind of the company.

In the FMCA proceedings, the defendant’s husband, Christopher Robert Gosley, by an Amended Response to the Initiating Application, filed 3 November 2010, applied for, amongst other orders:-

“THAT upon determination of the net value of the pool the Court order the Wife to repay to (the plaintiff company) 50% of the total amount of the funds she misappropriated and that the Husband be responsible for repayment of the balance 50%…

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 Imagatec P/L v Gosley-Fuller

Details

AGLC: Imagatec P/L v Gosley-Fuller [2012] QDC 15
Case: [2012] QDC 15
Decision Date: 14 February 2012

CaseChat Overview and Summary

In the matter of Imagatec P/L v Gosley-Fuller, the dispute involved concurrent proceedings in both the Federal Magistrates Court of Australia and the Queensland District Court. The Family Court of Australia had earlier initiated proceedings involving questions that were also central to the District Court proceedings. The court was tasked with determining whether the District Court proceeding constituted an abuse of process.

The legal issues before the court were primarily centred around the principles governing concurrent proceedings and the potential for an abuse of process. The applicant argued that the District Court proceeding was an abuse of process due to its overlap with earlier Family Court proceedings. The court had to consider whether the District Court proceeding was an abuse of process, given the concurrent Family Court proceedings and the questions already being adjudicated therein.

The court dismissed the application for a stay, finding that the District Court proceeding did not constitute an abuse of process. The court's reasoning was grounded in the principle that concurrent proceedings are not inherently abusive unless there is clear evidence of an improper purpose or intent. The court found no such evidence in the District Court proceeding. Consequently, the application was dismissed, and the applicant was ordered to pay the respondent’s costs of and incidental to this application, to be assessed on the standard basis.

Orders

Orders of the court

1. Application for a stay (as appears in the Amended Application) is dismissed

2. The applicant/defendant pay the respondent/plaintiff’s costs of and incidental to this application to be assessed on the standard basis

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Imagatec P/L v Gosley-Fuller [2012] QDC 15
PARTIES:	IMAGATEC PTY LTD (Plaintiff) v NARELLE GOSLEY-FULLER (Defendant)
FILE NO/S:	4515/2011
DIVISION:	Applications
PROCEEDING:	Application in a proceeding
ORIGINATING COURT:	Brisbane
DELIVERED ON:	14 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2012
JUDGE:	Dorney QC, DCJ
ORDERS:	1. Application for a stay (as appears in the Amended Application) is dismissed 2. The applicant/defendant pay the respondent/plaintiff’s costs of and incidental to this application to be assessed on the standard basis
CATCHWORDS:	PROCEDURE – Stay of proceedings – Where both Federal Magistrates Court of Australia proceedings and Queensland District Court proceeding concurrent – Considerations relevant to stay – Proceeding in District Court raising a question already arising, with others, in earlier commenced Family Court of Australia proceedings – Whether District Court proceeding an abuse of process District Court of Queensland Act 1967 (Qld) ss 69(1), 69(2)(c) Family Law Act 1975 (Cth) Part VIIIA, ss 79, 90AE, 90AF Uniform Civil Procedure Rules 1999 (Qld) rr 16, 16(g), 171(1)(e) Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Century Yuasa Batteries Pty Ltd v Century Batteries Holdings Pty Ltd [2004] QSC 271 Dupas v The Queen (2010) 241 CLR 237 Flynn v Suncorp-Metway Ltd [2009] QSC 175 Henry v Henry (1999) 185 CLR 571 Jago v District Court of New South Wales (1989) 168 CLR 23 Kinglsey v Kendle [2010] FamCA 598 Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCAFC 117 Puddy & Grossvard and Anor [2010] FLC 93-432 R v Higgins [2006] QDC 369 Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 Union Steamship Co of New Zealand v The Ship Caradale (1937) CLR 277
COUNSEL:	A C Barlow for the Plaintiff C A Johnstone for the Defendant
SOLICITORS:	Family Law Doyle Keyworth and Harris for the Plaintiff Dixie Ann Middleton and Associates for the Defendant