IW Jack & Associates P/L v Olicent Pty Ltd

[2009] QDC 331

[2009] QDC 331

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE CLARE SC
No 2948 of 2009

IW JACK & ASSOCIATES PTY LTD	Appellant
(ACN 005137404)
and
OLICENT PTY LTD	Respondent
(ACN 118768531) TRADING AS THE OLIVE CENTRE
BRISBANE ..DATE 22/10/2009 ORDER

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HER HONOUR: This is an application for stay against the

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enforcement of an order of a Magistrate. Jacks commissioned a
company Olicent through Mrs Barry to build a portable olive
press. It was to be a novel and innovative development.
Jacks had paid $300,000 for the machine. Mr Jack ultimately

took it from Mrs Barry's property and retained it. He claims	10
it does not work and it seems common ground that the machine in its current state does not work.
Mrs Barry's company sued Jacks for the balance of the
purchase price which is said to be $50,000 or thereabouts.	20
Jacks wish to counterclaim for damages of an amount of half a million dollars.
Mrs Barry's company's claim is two years old. I accept that
there has been delay on both sides. Jacks sought leave	30
from the Magistrate to amend a defence to add negligence and
misrepresentation and to make a counterclaim. They also
sought an order to remove the matter to the Supreme Court.
The Magistrate refused the applications and made orders that
effectively would expedite the trial. This is at a point, it	40
is claimed on behalf of Jacks, where they were not ready to proceed and would be left with no meaningful defence.
Mr O'Neil for Jacks has outlined the grounds of complaint
against the Magistrate's order. Without analysing the matter	50

in any great detail, I accept that there are matters for
argument on appeal.
No date has been set for the hearing of the appeal. As it 1-2 ORDER 60

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currently stands, there are directions for the filing and
service of outlines. That commenced with the first outline

due on the 11th of November.

The effect of the Magistrates order would be to permit a trial	10
date to be obtained at some point after the 9th of November. possible.
Mr O'Neil argued for Jacks that in consequence of the	20
Magistrates order the Jacks remain bound by a deficient
defence and that there is real prospects of them being forced
to trial in advance of the determination of the appeal
rendering any appeal nugatory or the effects of any appeal
nugatory or redundant.	30
Mr Travis, for Mrs Barry's company, says that no prejudice would accrue to Jacks if the orders of the Magistrate were not stayed prior to the appeal.
40
Having heard the full circumstances of the matter I agree with
him. Even if the orders of the Magistrate remain alive
Mr O'Neil has taken action to protect the rights of Jacks.
An action has been commenced in the Supreme Court against
Olicent for the claim for half a million dollars.	50

There is also an application before the Supreme Court to remove the Olicent claim from the Magistrates Court and consolidate it with the Jacks claim in the Supreme Court. 1-3 ORDER 60

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Jacks also has the capacity to file and amended defence
in the Magistrates Court. In those circumstances there is no

prejudice to be remedied pending the hearing of the appeal.

10

It seems to me that the most prudent course for the parties if
the appeal is to be pursued is to file and serve their

material as quickly as possible so that the appeal can be brought on as quickly as possible and then an application might be made for an expedited hearing of that appeal.	20
I have already expressed my concern about the extraordinary
costs that are being run up on both sides for a matter like
this, but it seems to me that unfortunately the positions of
the parties are really entrenched. That is regrettable.	30
The application is refused.
...
40
HER HONOUR: I will order costs on the standard basis against the applicant Jack & Associates Pty Ltd in favour of Olicent Pty Ltd.

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