Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd - [2009] QSC 76

SUPREME COURT OF QUEENSLAND

CITATION:

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2009] QSC 76

PARTIES:

NORTHBUILD CONSTRUCTION PTY LTD

ACN 011 063 764

Applicant

v

DISCOVERY BEACH PROJECT PTY LTD

ACN 100 500 981

Respondent

FILE NO/S:

BS 3756/05

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

3 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25 and 27 February 2009

JUDGES:

White J

ORDER:

1.        Refuse the application by Northbuild            Constructions Pty Ltd for leave to use documents            disclosed by Discovery Beach Project Pty Ltd in            winding up proceedings.

2.        Refuse the application by Discovery Beach Project            Pty Ltd to vary the order made by Martin J on 26            November 2008.

3.        Northbuild Constructions Pty Ltd to pay            Discovery Beach Project Pty Ltd’s costs of and            incidental to the application filed 16 February            2009.

4.        Discovery Beach Pty Ltd to pay Northbuild            Constructions Pty Ltd’s costs of and incidental to            the application filed 10 December 2008.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – USE OF DOCUMENTS – where applicant seeks leave to use documents obtained in present proceedings for the purpose of winding up proceedings against respondent – where parties are involved in ongoing arbitration proceedings – whether leave should be granted

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – WHAT CONSTITUTES INSOLVENCY – EVIDENCE OF INSOLVENCY – where applicant seeks leave to use documents obtained in present proceedings for the purpose of winding up proceedings against respondent – whether respondent is insolvent

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where respondent seeks variation of an order previously issued in present proceedings – whether court has power to vary the order – whether respondent has “liberty to apply” for variation pursuant to terms of previous order – whether previous order should be varied

Commercial Arbitration Act1990 (Qld), s 47
Corporations Act 2001 (Cth), s 95A
Uniform Civil Procedure Rules 1999 (Qld), r 981

Atlas Maritime Co SA v Avalon Maritime Ltd (The Coral Rose)(No.3) [1991] 4 All ER 783, cited
Australian Hardboards Ltd v Hudson Investment Group (2007) 70 NSWLR 201, cited
Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476, cited
British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased) No. 2) (2003) 8 VR 571, cited
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, cited
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, cited
Crest Homes v Marks [1987] 1 AC 829, cited
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, applied
Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317, cited
Hearne v Street (2008) 235 CLR 125, applied
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2005]…

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: [2009] QSC 76
Decision Date: 3 April 2009

CaseChat Overview and Summary

The case of Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd was before the court, which heard an application by Northbuild to use documents obtained during the present proceedings in winding up proceedings against Discovery Beach. Additionally, the court considered an application by Discovery Beach to vary an order previously made by Martin J on 26 November 2008. The parties were engaged in ongoing arbitration proceedings, and the central issues before the court involved the use of discovered documents for winding up proceedings and the solvency of Discovery Beach.

The primary legal issue was whether Northbuild was entitled to use the documents obtained in the present proceedings to pursue winding up proceedings against Discovery Beach. A secondary issue was whether Discovery Beach was insolvent, which would be a necessary condition for Northbuild's application to succeed. Furthermore, the court had to determine if it had the inherent power to vary an order previously made in the same proceedings, and if Discovery Beach had the liberty to apply for such a variation under the terms of the previous order.

The court held that Northbuild was not entitled to use the documents obtained in the present proceedings for winding up purposes, as the documents were subject to confidentiality orders in the arbitration. The court found that Discovery Beach was not insolvent, as there was insufficient evidence to support such a conclusion. Additionally, the court ruled that it did not have the power to vary the previous order, and Discovery Beach did not have the liberty to apply for variation as per the terms of the previous order.

Consequently, the court refused Northbuild's application to use the documents in winding up proceedings and also refused Discovery Beach's application to vary the previous order. The court ordered that Northbuild pay Discovery Beach's costs for the application filed on 16 February 2009, and that Discovery Beach pay Northbuild's costs for the application filed on 10 December 2008.

Orders

Orders of the court

1. Refuse the application by Northbuild Constructions Pty Ltd for leave to use documents disclosed by Discovery Beach Project Pty Ltd in winding up proceedings.

2. Refuse the application by Discovery Beach Project Pty Ltd to vary the order made by Martin J on 26 November 2008.

3. Northbuild Constructions Pty Ltd to pay Discovery Beach Project Pty Ltd’s costs of and incidental to the application filed 16 February 2009.

4. Discovery Beach Pty Ltd to pay Northbuild Constructions Pty Ltd’s costs of and incidental to the application filed 10 December 2008.

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:	Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2009] QSC 76
PARTIES:	NORTHBUILD CONSTRUCTION PTY LTD ACN 011 063 764 Applicant v DISCOVERY BEACH PROJECT PTY LTD ACN 100 500 981 Respondent
FILE NO/S:	BS 3756/05
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	3 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25 and 27 February 2009
JUDGES:	White J
ORDER:	1. Refuse the application by Northbuild Constructions Pty Ltd for leave to use documents disclosed by Discovery Beach Project Pty Ltd in winding up proceedings. 2. Refuse the application by Discovery Beach Project Pty Ltd to vary the order made by Martin J on 26 November 2008. 3. Northbuild Constructions Pty Ltd to pay Discovery Beach Project Pty Ltd’s costs of and incidental to the application filed 16 February 2009. 4. Discovery Beach Pty Ltd to pay Northbuild Constructions Pty Ltd’s costs of and incidental to the application filed 10 December 2008.
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – USE OF DOCUMENTS – where applicant seeks leave to use documents obtained in present proceedings for the purpose of winding up proceedings against respondent – where parties are involved in ongoing arbitration proceedings – whether leave should be granted CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – WHAT CONSTITUTES INSOLVENCY – EVIDENCE OF INSOLVENCY – where applicant seeks leave to use documents obtained in present proceedings for the purpose of winding up proceedings against respondent – whether respondent is insolvent PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where respondent seeks variation of an order previously issued in present proceedings – whether court has power to vary the order – whether respondent has “liberty to apply” for variation pursuant to terms of previous order – whether previous order should be varied Commercial Arbitration Act1990 (Qld), s 47 Corporations Act 2001 (Cth), s 95A Uniform Civil Procedure Rules 1999 (Qld), r 981 Atlas Maritime Co SA v Avalon Maritime Ltd (The Coral Rose)(No.3) [1991] 4 All ER 783, cited Australian Hardboards Ltd v Hudson Investment Group (2007) 70 NSWLR 201, cited Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476, cited British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased) No. 2) (2003) 8 VR 571, cited Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, cited Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, cited Crest Homes v Marks [1987] 1 AC 829, cited Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, applied Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317, cited Hearne v Street (2008) 235 CLR 125, applied Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2005]…