Parbery v QNI Metals - [2018] QSC 121

SUPREME COURT OF QUEENSLAND

CITATION:

Parbery & Ors v QNI Metals & Ors [2018] QSC 121

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 LIQUIDATION)
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)

ALEXANDER GUEORGUIEV SOKOLOV

(nineteenth defendant)

ZHENGHONG ZHANG

(twentieth defendant)

SCI LE COEUR DE L’OCEAN

(twenty-first defendant)

DOMENIC MARTINO

(twenty-second defendant)

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:

Application

DELIVERED EX TEMPORE ON:

22 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2018

JUDGE:

Bond J

ORDER:

The application is dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – where plaintiff company is in liquidation – where two defendant companies apply for ancillary orders in respect of a prospective freezing order as against the plaintiff liquidators – where application is made pursuant to the court’s inherent jurisdiction and pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 260B, r 260D(5) and r 260E – where the defendant companies contend they are entitled to invoke the court’s jurisdiction without establishing the merits of their underlying case against the plaintiff liquidators – whether the defendant companies must establish a good arguable case against the plaintiff liquidators

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – where plaintiff company is in liquidation – where two defendant companies apply for ancillary orders in respect of a prospective freezing order as against the plaintiff liquidators – where application is made pursuant to the court’s inherent jurisdiction and…

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 121
Decision Date: 22 May 2018

CaseChat Overview and Summary

Parbery v QNI Metals is a case before the court that involves the liquidators of a company in liquidation as plaintiffs and two defendant companies seeking ancillary orders in respect of a prospective freezing order. The court was tasked with determining whether the defendant companies must establish a good arguable case against the liquidators, whether there is a sufficient prospect of a substantive freezing order being made, and if the inadequacy of the undertakings offered by the defendant companies is a discretionary consideration.

The court had to consider the inherent jurisdiction and statutory powers to prevent abuse of process, particularly in light of the Uniform Civil Procedure Rules 1999 (Qld) r 260B, r 260D(5) and r 260E. The court found that the defendants must establish a good arguable case before being granted any ancillary orders. The court also held that the prospect of a substantive freezing order being made was not sufficient to warrant the making of the ancillary orders sought. Additionally, the court found that the inadequacy of the undertakings offered by the defendants was a discretionary consideration that weighed against the grant of any ancillary orders.

The court concluded that leave of the court was not required to proceed against the liquidators. The application for ancillary orders was dismissed, and no orders were made in favour of the defendants. This case highlights the importance of establishing a good arguable case and providing adequate undertakings when seeking ancillary orders in respect of a prospective freezing order.

Orders

Orders of the court

The application is dismissed.

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 121
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 LIQUIDATION) 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) ALEXANDER GUEORGUIEV SOKOLOV (nineteenth defendant) ZHENGHONG ZHANG (twentieth defendant) SCI LE COEUR DE L’OCEAN (twenty-first defendant) DOMENIC MARTINO (twenty-second defendant) 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:	Application
DELIVERED EX TEMPORE ON:	22 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	22 May 2018
JUDGE:	Bond J
ORDER:	The application is dismissed.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – where plaintiff company is in liquidation – where two defendant companies apply for ancillary orders in respect of a prospective freezing order as against the plaintiff liquidators – where application is made pursuant to the court’s inherent jurisdiction and pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 260B, r 260D(5) and r 260E – where the defendant companies contend they are entitled to invoke the court’s jurisdiction without establishing the merits of their underlying case against the plaintiff liquidators – whether the defendant companies must establish a good arguable case against the plaintiff liquidators PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – where plaintiff company is in liquidation – where two defendant companies apply for ancillary orders in respect of a prospective freezing order as against the plaintiff liquidators – where application is made pursuant to the court’s inherent jurisdiction and…