Lane Rowin Pty Ltd v Accbis Pty Ltd

[2007] QDC 158

DISTRICT COURT OF QUEENSLAND

CITATION:

Lane Rowin Pty Ltd  v Accbis Pty Ltd [2007] QDC 158

PARTIES:

Lane Rowin Pty Ltd
 (Plaintiff)
v
Accbis Pty Ltd
 (Defendant)

FILE NO:

198 of 2007

PROCEEDING:

Application for summary judgment

DELIVERED ON:

20 July 2007

DELIVERED AT:

Southport

HEARING DATE:

20 July 2007

JUDGE:

C.F. Wall Q.C.

ORDER:

1. Dismiss application filed on 7^th June 2007
2. Richard Laurence Spark to pay the plaintiff’s costs of and incidental to the application fixed at $4628.20

CATCHWORDS:

COSTS – PRACTICE – order for payment of costs by non-party – circumstances where such an order is warranted.

Case referred to:
Knight v FP Special Assets Limited (1992) 174 CLR 178, FAA

COUNSEL

Plaintiff – Mr M. Bland

SOLICITORS:

Plainitff – QBM Lawyers
Mr Richard Laurence Spark appeared as a former director of the Defendant

HIS HONOUR:  The defendant company, it transpires today, was deregistered by the Australian Securities and Investment Commission on the 17th of June 2007.  The plaintiff is, therefore, unable to obtain the relief it seeks in the application it filed on the 5th of June 2007.

It has made an application relying upon the decision of Knight v. FP Special Assets Limited (1992), 174 CLR 178, that an order for its costs of the application be made against Richard Lawrence Spark, a non-party and sole director of the defendant company on the basis that Mr Spark was the effective litigant standing behind the company. Mr Spark was the sole director of the company and he says he had been sole director for at least, perhaps, six months.

As a director of the company he concedes an obligation to monitor the affairs of the company.  He also concedes that the deregistration of the company was for non-payment of fees to ASIC and that those fees had been owing for at least two years.  He also concedes that there would have been correspondence from ASIC in relation to the non-payment of the fees and the likely consequences should that non-payment continue, those consequences including deregistration of the company.

The defence of the company was filed on the 24th of May 2007.  The present application was filed on the 5th of June 2007 and was served by express post on the 6th of June 2007 on the address for service shown in the defence.  It then came to the attention of Mr Spark.

In my view, Mr Spark should, having regard to his obligation as a director, have known of the deregistration of the company and he should have advised the solicitors for the plaintiff of that fact.  Had he done so, it would have obviated the need for the plaintiff to make the present application and the plaintiff would not have unnecessarily incurred costs. 

In those circumstances, I consider it appropriate to order that Mr Spark pay the plaintiff's costs of the application fixed at $4,628.20.  That amount is the amount referred to in paragraph 4 of the affidavit of Justin James Matthews filed by leave today and in Exhibit JJM3 to that affidavit.  The orders I make are these:

I dismiss the application of the plaintiff filed on the 5th of June 2006 and I order that Richard Lawrence Spark pay the plaintiff's costs of and incidental to the application fixed at $4,628.20. 

That is sufficient Mr Bland?
MR BLAND:  Yes.  Thank you, your Honour.

HIS HONOUR:  All right.   Now, Mr Spark, that's the order I have made.  That is the end of the matter now.  The other side will no doubt seek that amount from you.  If you do not have the capacity to pay it, you will have to make that known to the other side and it will be up to them as to what they do.  All right, that is the end of the matter now.