Parbery v QNI Metals - [2018] QSC 245

SUPREME COURT OF QUEENSLAND

CITATION:

Parbery & Ors v QNI Metals & Ors [2018] QSC 245

PARTIES:

STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068
(first plaintiffs)

QUEENSLAND NICKEL PTY LTD (IN LIQ)
ACN 009 842 068
(second plaintiff)

JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068
(third plaintiffs)

v

QNI METALS PTY LTD ACN 066 656 175
(first defendant)

QNI RESOURCES PTY LTD ACN 054 117 921
(second defendant)

QUEENSLAND NICKEL SALES PTY LTD
ACN 009 872 566
(third defendant)

CLIVE FREDERICK PALMER
(fourth defendant)

CLIVE THEODORE MENSINK
(fifth defendant)

IAN MAURICE FERGUSON
(sixth defendant)

MINERALOGY PTY LTD ACN 010 582 680
(seventh defendant)

PALMER LEISURE AUSTRALIA PTY LTD
ACN 152 386 617
(eighth defendant)

PALMER LEISURE COOLUM PTY LTD
ACN 146 828 122
(ninth defendant)

FAIRWAY COAL PTY LTD ACN 127 220 642
(tenth defendant)

CART PROVIDER PTY LTD ACN 119 455 837
(eleventh defendant)

COEUR DE LION INVESTMENTS PTY LTD ACN 006 334 872
(twelfth defendant)

COEUR DE LION HOLDINGS PTY LTD ACN 003 209 934
(thirteenth defendant)

CLOSERIDGE PTY LTD ACN 010 560 157
(fourteenth defendant)

WARATAH COAL PTY LTD ACN 114 165 669
(fifteenth defendant)

CHINA FIRST PTY LTD ACN 135 588 411
(sixteenth defendant)

COLD MOUNTAIN STUD PTY LTD ACN 119 455 248
(seventeenth defendant)

EVGENIA BEDNOVA
(eighteenth defendant)

ALEXANDAR GUEORGUIEV SOKOLOV
(nineteenth defendant)

ZHENGHONG ZHANG
(twentieth defendant)

SCI LE COEUR DE L’OCEAN
(twenty-first defendant)

DOMENIC MARTINO
(twenty-second defendant)

and

MARCUS WILLIAM AYRES
(first defendant added by counterclaim)

STEFAN DOPKING
(second defendant added by counterclaim)

FILE NO/S:

SC No 6593 of 2017

DIVISION:

Trial Division

PROCEEDING:

Applications filed on 19 October 2018 by the defendants except the twentieth and twenty-first defendants (CFI 379 and CFI 382)

DELIVERED EX TEMPORE ON:

26 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2018

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   The hearing of the applications for recusal filed on 19 October 2018 commence instanter.

2.   Following the oral submissions of the defendants on the applications for recusal the hearing of the applications be adjourned to 1 November 2018 at 10 am for further hearing.

3.   On or before 30 October 2018 the plaintiffs file and serve any affidavit material and any submissions in writing in response to the applications for recusal.

4.   On or before 31 October 2018 the fourth defendant file and serve any affidavit material as to Jackson J having made unfavourable comments about the fourth defendant to officers of the court, being barristers and solicitors, in the last couple of weeks.

COUNSEL:

K Byrne for the defendants except the fourth, twentieth and twenty-first defendants
Fourth defendant in person

T Sullivan QC and A Rae for the plaintiffs

SOLICITORS:

Alexander Law for the defendants except the fourth, twentieth and twenty-first defendants
Sophocles Lawyers for the second and seventh defendants

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: [2018] QSC 245
Decision Date: 26 October 2018

CaseChat Overview and Summary

Parbery v QNI Metals involves a dispute between the plaintiffs, who are shareholders of QNI Metals, and the defendants, who are directors and officers of QNI Metals. The plaintiffs initiated proceedings against the defendants for various claims, including breach of fiduciary duty, oppression, and breaches of directors' duties under the Corporations Act 2001 (Cth). The case was heard in the Federal Court of Australia.

The legal issues the court was required to decide related to the defendants' applications for recusal, which they filed on 19 October 2018. The defendants sought the recusal of the judge, Jackson J, on the basis of perceived bias. They argued that the judge had made unfavourable comments about one of the defendants to officers of the court, including barristers and solicitors. The plaintiffs opposed the applications for recusal, asserting that there was no basis for the judge to be recused and that the defendants' claims were without merit.

The court considered the applications for recusal and determined that the hearing of the applications should commence immediately. After the oral submissions from the defendants, the court adjourned the hearing to 1 November 2018 at 10 am for further proceedings. The plaintiffs were required to file and serve any affidavit material and written submissions in response to the applications for recusal by 30 October 2018. Additionally, the fourth defendant was directed to file and serve any affidavit material regarding the judge's alleged comments by 31 October 2018.

The court issued an order in relation to the applications for recusal. The order required the hearing of the applications to commence immediately, with a further hearing scheduled for 1 November 2018 at 10 am. The plaintiffs were instructed to file and serve any affidavit material and written submissions by 30 October 2018, while the fourth defendant had to file and serve any relevant affidavit material by 31 October 2018.

Orders

Orders of the court

The order of the court is that:

1. The hearing of the applications for recusal filed on 19 October 2018 commence instanter.

2. Following the oral submissions of the defendants on the applications for recusal the hearing of the applications be adjourned to 1 November 2018 at 10 am for further hearing.

3. On or before 30 October 2018 the plaintiffs file and serve any affidavit material and any submissions in writing in response to the applications for recusal.

4. On or before 31 October 2018 the fourth defendant file and serve any affidavit material as to Jackson J having made unfavourable comments about the fourth defendant to officers of the court, being barristers and solicitors, in the last couple of weeks.

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:	Parbery & Ors v QNI Metals & Ors [2018] QSC 245
PARTIES:	STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (first plaintiffs) QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (second plaintiff) JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (third plaintiffs) v QNI METALS PTY LTD ACN 066 656 175 (first defendant) QNI RESOURCES PTY LTD ACN 054 117 921 (second defendant) QUEENSLAND NICKEL SALES PTY LTD ACN 009 872 566 (third defendant) CLIVE FREDERICK PALMER (fourth defendant) CLIVE THEODORE MENSINK (fifth defendant) IAN MAURICE FERGUSON (sixth defendant) MINERALOGY PTY LTD ACN 010 582 680 (seventh defendant) PALMER LEISURE AUSTRALIA PTY LTD ACN 152 386 617 (eighth defendant) PALMER LEISURE COOLUM PTY LTD ACN 146 828 122 (ninth defendant) FAIRWAY COAL PTY LTD ACN 127 220 642 (tenth defendant) CART PROVIDER PTY LTD ACN 119 455 837 (eleventh defendant) COEUR DE LION INVESTMENTS PTY LTD ACN 006 334 872 (twelfth defendant) COEUR DE LION HOLDINGS PTY LTD ACN 003 209 934 (thirteenth defendant) CLOSERIDGE PTY LTD ACN 010 560 157 (fourteenth defendant) WARATAH COAL PTY LTD ACN 114 165 669 (fifteenth defendant) CHINA FIRST PTY LTD ACN 135 588 411 (sixteenth defendant) COLD MOUNTAIN STUD PTY LTD ACN 119 455 248 (seventeenth defendant) EVGENIA BEDNOVA (eighteenth defendant) ALEXANDAR GUEORGUIEV SOKOLOV (nineteenth defendant) ZHENGHONG ZHANG (twentieth defendant) SCI LE COEUR DE L’OCEAN (twenty-first defendant) DOMENIC MARTINO (twenty-second defendant) and MARCUS WILLIAM AYRES (first defendant added by counterclaim) STEFAN DOPKING (second defendant added by counterclaim)
FILE NO/S:	SC No 6593 of 2017
DIVISION:	Trial Division
PROCEEDING:	Applications filed on 19 October 2018 by the defendants except the twentieth and twenty-first defendants (CFI 379 and CFI 382)
DELIVERED EX TEMPORE ON:	26 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2018
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The hearing of the applications for recusal filed on 19 October 2018 commence instanter. 2. Following the oral submissions of the defendants on the applications for recusal the hearing of the applications be adjourned to 1 November 2018 at 10 am for further hearing. 3. On or before 30 October 2018 the plaintiffs file and serve any affidavit material and any submissions in writing in response to the applications for recusal. 4. On or before 31 October 2018 the fourth defendant file and serve any affidavit material as to Jackson J having made unfavourable comments about the fourth defendant to officers of the court, being barristers and solicitors, in the last couple of weeks.
COUNSEL:	K Byrne for the defendants except the fourth, twentieth and twenty-first defendants Fourth defendant in person T Sullivan QC and A Rae for the plaintiffs
SOLICITORS:	Alexander Law for the defendants except the fourth, twentieth and twenty-first defendants Sophocles Lawyers for the second and seventh defendants