Lubetech Pty Ltd v Sulzeberger

[2004] QDC 562

[2004] QDC 562

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D934 of 2002

LUBETECH PTY LTD (ACN 067 222 744)

Plaintiff/Respondent

and

JASON LINDSAY SULZBERGER

No D933 of 2002

GLOBAL EQUIPMENT MONITORING PTY LTD (ACN 087 686 879)

and

JASON LINDSAY SULZBERGER

Defendant/Applicant

Plaintiff/Respondent

Defendant/Applicant

BRISBANE

..DATE 27/09/2004

ORDER

CATCHWORDS: Claims dismissed under UCPR r 674(c) for plaintiff's failure to comply with order for security for costs.

HER HONOUR: There are two matters before the Court in which the defendant, Mr Sulzberger, seeks summary judgment under the Uniform Civil Procedure Rules r.293. In one of those matters the claim may be stronger than the other.

The plaintiffs are different but each plaintiff's claim is based on an assertion that it had copyright - in "gSmart" and in the other case "gWiz".  As far as the former is concerned, the application for judgment might be thought to gain some support from the existence of a contract in which the plaintiff company disposed of assets but on the basis that it really had no idea whether there was anything to sell in respect of gSmart.  There is nothing corresponding in respect of gWiz.  Although the authorities may, as Mr Hackett says, indicate that in applying rules 292 and 293 the Courts ought to be more robust than they might have been under their predecessors - under their predecessor rules - I would find it difficult in the circumstances to resolve both matters in this way.  It is not clear to me that the plaintiff's claims are inarguable or without prospects of success.

The plaintiffs are both deregistered so that ASIC is heir to their causes of action.  ASIC has no interest in pursuing them.  I am not persuaded by Mr Hackett's invitation to use what has happened to the plaintiff companies as a basis for giving judgment against them.

There has not been an opportunity to go into detail regarding the appropriateness of this Court (which has no general corporations jurisdiction) giving judgment against the plaintiff companies.  It has to be acknowledged that a communication from ASIC contends that the applicant is not entitled to relief of that kind.

There is a clear basis, in my opinion, in rule 674(c) for the Court's dismissing each of the claims.

Judge Boyce made an order for provision of security for costs in the amount of $10,000 in each matter within 14 days on the 19th of July 2002.  No such security has been forthcoming so that the Court may, I think, dismiss the claims.  As Mr Hackett concedes, the applications filed on behalf of his client do not in terms seek that relief.  Something must be done to rid the Court's lists of proceedings of which it can confidently be said that they will not go anywhere.  Something also ought to be done to bring to an end the situation of continuing embarrassment to the applicant defendant in featuring in lists of commercial proceedings which may appear in mercantile gazettes or whatever may be their modern electronic or other published equivalents.

Whatever the deficiencies of the application, I would have no difficulty in regarding Mr Hackett as making oral application for relief under rule 674(c), which ought to be granted.  The Court derives some comfort from the appearance of Mr Sindel who is a solicitor for Mr Michael Atharenos, an ex-director of the companies.  He indicates his client, who of course is not a party, has no interest in seeking to take over the two plaintiffs' claims or either of them.  His real concern seems to have been to ensure that no order adverse to his personal interests, such as an order for costs, should be made.

Under rule 674(c) in each proceeding I order that the claim is dismissed.  I think that should be done without costs because of difficulties of the kind already adverted to which may lie in the way of this Court's making any order against either of the plaintiff companies in the circumstances.

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