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Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jacques

Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jacques

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SUPREME COURT OF QUEENSLAND

CITATION:

Lanai Unit Holdings P/L v Mallesons Stephen Jacques [2016] QSC 2

PARTIES:

LANAI UNIT HOLDINGS PTY LIMITED ACN 602 697 745 as trustee for the LANAI UNIT TRUST
(plaintiff)

v

MALLESONS STEPHEN JACQUES (A Firm)
(defendant)

FILE NO/S:

BS10583/14

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

15 January 2016

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2015

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. Within fourteen (14) days the plaintiff give security for the defendant’s costs of the proceeding up to and including the determination of the defendant’s application for the hearing of separate questions in the sum of $450,000 in a form satisfactory to the principal registrar of the court and in default, the proceeding is stayed until further order.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – PRACTICE MATTERS – where the plaintiff is a trustee – where the plaintiff commenced proceedings seeking damages against the defendant for negligence under the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct – where the plaintiff may be unsuccessful to pay costs in the event of a successful defence – where the defendant applies for security for costs – where there is delay in bringing the application – whether the security should include past costs or future costs of the proceeding

Civil Proceedings Act 2011 (Qld), s 15
Corporations Act 2001 (Cth) s 1335
Trade Practices Act 1974 (Cth), ss 52, 82

Uniform Civil Procedure Rules 1999 (Qld), rr 5, 670, 671, 681

ACN 006 577 162 Pty Ltd (formerly Harrop Engineering Australia Pty Ltd) & Ors v Beauville Pty Ltd [2014] VSC 298, cited
Bossichix Pty Ltd v Martinek Holdings Pty Ltd [2009] QCA 154, cited
Bruce Pie and Sons v RH Mainwaring, English & Peldan [1985] 1 Qd R 401, followed Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301, considered
Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176, cited
Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262, cited DIF III Global Co-Investment Fund L P v BBLP LLC [2015] VSC 484, cited
Felsink Pty Ltd v City of Maribyrnong & Anor [2007] VSC 49, cited
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148, applied
KP Kable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; [1995] FCA 76, cited
Major v Woodside Energy Ltd [No 5] [2009] WASC 357, cited
Pathway Investments Pty Ltd v National Australia BankLimited [2012] VSC 97, referred to
Porzelack KB v Porzelack (UK) Ltd [1987] 1 All ER 1074, cited

re Beechworth Land Estates Pty Ltd (admin apptd) (No 3) (2015) 106 ACSR 495; [2015] NSWSC 733, cited
Silverstone Holdings Pty Ltd v American Home Assurance Co [2003] WASC 139, cited

COUNSEL:

G Beacham QC for the applicant/defendant
N Kidd SC…

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: [2016] QSC 2
Decision Date: 15 January 2016

CaseChat Overview and Summary

In the case of Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jacques, the plaintiff, as a trustee, initiated proceedings against the defendant, seeking damages for negligence under the Trade Practices Act 1974 (Cth). The plaintiff alleged that the defendant engaged in misleading and deceptive conduct. The defendant, in response, applied for security for costs, concerned that the plaintiff might be unable to cover the costs if the defendant's defence was successful. The application was delayed, and the central issue was whether the security should cover past costs incurred or future costs of the proceeding.

The court had to determine the appropriate amount of security for costs and whether this should include past costs or only future costs of the proceeding. The court considered the nature of the plaintiff's position as a trustee, the potential financial constraints on the plaintiff in fulfilling a potential costs order, and the delay in the defendant's application. The court also examined the balance of convenience and the likelihood of success on the merits of the defendant's application.

The court concluded that the plaintiff should provide security for the defendant's costs of the proceeding up to and including the determination of the defendant’s application for the hearing of separate questions. The sum of $450,000 was deemed appropriate, considering the potential exposure and the delay in the application. The court emphasised that if the plaintiff did not provide the security within fourteen days, the proceeding would be stayed until further order. This decision balanced the interests of both parties and aimed to ensure the defendant could proceed with the litigation without undue financial risk.

The final orders required the plaintiff to give security for the defendant’s costs in the sum of $450,000 within fourteen days, in a form satisfactory to the principal registrar of the court. Failure to comply with this order would result in the stay of the proceeding until further order.

Orders

Orders of the court

The order of the court is that:

1. Within fourteen (14) days the plaintiff give security for the defendant’s costs of the proceeding up to and including the determination of the defendant’s application for the hearing of separate questions in the sum of $450,000 in a form satisfactory to the principal registrar of the court and in default, the proceeding is stayed until further order.

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:	Lanai Unit Holdings P/L v Mallesons Stephen Jacques [2016] QSC 2
PARTIES:	LANAI UNIT HOLDINGS PTY LIMITED ACN 602 697 745 as trustee for the LANAI UNIT TRUST (plaintiff) v MALLESONS STEPHEN JACQUES (A Firm) (defendant)
FILE NO/S:	BS10583/14
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	15 January 2016
DELIVERED AT:	Brisbane
HEARING DATE:	9 December 2015
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. Within fourteen (14) days the plaintiff give security for the defendant’s costs of the proceeding up to and including the determination of the defendant’s application for the hearing of separate questions in the sum of $450,000 in a form satisfactory to the principal registrar of the court and in default, the proceeding is stayed until further order.
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – PRACTICE MATTERS – where the plaintiff is a trustee – where the plaintiff commenced proceedings seeking damages against the defendant for negligence under the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct – where the plaintiff may be unsuccessful to pay costs in the event of a successful defence – where the defendant applies for security for costs – where there is delay in bringing the application – whether the security should include past costs or future costs of the proceeding Civil Proceedings Act 2011 (Qld), s 15 Corporations Act 2001 (Cth) s 1335 Trade Practices Act 1974 (Cth), ss 52, 82 Uniform Civil Procedure Rules 1999 (Qld), rr 5, 670, 671, 681 ACN 006 577 162 Pty Ltd (formerly Harrop Engineering Australia Pty Ltd) & Ors v Beauville Pty Ltd [2014] VSC 298, cited Bossichix Pty Ltd v Martinek Holdings Pty Ltd [2009] QCA 154, cited Bruce Pie and Sons v RH Mainwaring, English & Peldan [1985] 1 Qd R 401, followed Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301, considered Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176, cited Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262, cited DIF III Global Co-Investment Fund L P v BBLP LLC [2015] VSC 484, cited Felsink Pty Ltd v City of Maribyrnong & Anor [2007] VSC 49, cited Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148, applied KP Kable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; [1995] FCA 76, cited Major v Woodside Energy Ltd [No 5] [2009] WASC 357, cited Pathway Investments Pty Ltd v National Australia BankLimited [2012] VSC 97, referred to Porzelack KB v Porzelack (UK) Ltd [1987] 1 All ER 1074, cited re Beechworth Land Estates Pty Ltd (admin apptd) (No 3) (2015) 106 ACSR 495; [2015] NSWSC 733, cited Silverstone Holdings Pty Ltd v American Home Assurance Co [2003] WASC 139, cited
COUNSEL:	G Beacham QC for the applicant/defendant N Kidd SC…