Parbery v QNI Metals Pty Ltd - [2023] QSC 246

SUPREME COURT OF QUEENSLAND

CITATION:

Parbery & Ors v QNI Metals Pty Ltd & Ors [2023] QSC 246

PARTIES:

STEPHEN JAMES PARBERY IN HIS CAPACITY AS LIQUIDATOR OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068

(first plaintiff)

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)

ALEXANDER GUEORGUIEV SOKOLOV
(nineteenth defendant)

ZHENGHONG ZHANG
(twentieth defendant)

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

DOMENIC MARTINO
(twenty-second defendant)

FILE NO:

BS6593 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

3 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2022

JUDGE:

Mullins P

ORDERS:

1.   The third defendant’s application filed 23 September 2022 is dismissed.

2.   The third defendant must pay the second and third plaintiffs’ costs of the application filed 23 September 2022.

3. It is declared that the share subscription agreement between the second plaintiff and the sixteenth defendant executed on 13 January 2016 (share subscription agreement) is voidable under s 588FE of the Corporations Act 2001 (Cth) (the Act).

4. Pursuant to s 588FF of the Act is it declared that the share subscription agreement is void ab initio against the second plaintiff.

5.   The two billion ordinary shares in the capital of China First Pty Ltd issued to the second plaintiff on 13 January 2016 are cancelled.

6.   The seventh defendant must pay interest to the second plaintiff on the judgment amount awarded by the Court of Appeal on 25 June 2021 in the sum of $13,497,177.02.

7.   The seventh defendant must pay the second plaintiff’s costs of the proceeding relating to Part NA of the statement of claim, and the costs of proceedings BS3202/17 (including any reserved costs ordered in both proceedings), on the standard basis, to be assessed if not agreed.

8.   The first, second, fifteenth and sixteenth defendants must pay the second and third plaintiffs’ costs of…

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: [2023] QSC 246
Decision Date: 3 November 2023

CaseChat Overview and Summary

Parbery v QNI Metals Pty Ltd is a complex case involving multiple parties and various legal issues. The case concerns a dispute over repayment of loans under a loan agreement, the winding up of a trustee in insolvency, and estoppel by judgment. The case was heard in the Federal Court of Australia and subsequently in the Full Court of the Federal Court. The second plaintiff had appealed against the dismissal of their claim for repayment of loans under a loan agreement with the seventh defendant, and was successful in the Court of Appeal's first decision. The Court of Appeal in its second decision ordered that the question of the costs of the trial and the interest payable by the seventh defendant to the second plaintiff be remitted to the trial division.

The legal issues in this case involved the interpretation of the Corporations Act 2001 (Cth) and the application of estoppel by judgment and abuse of process. The second plaintiff was trustee of trust property as a manager under a joint venture agreement for the benefit of the first and second defendants. The second plaintiff was wound up in insolvency, and the third plaintiffs were the liquidators of the second plaintiff. The third defendant was appointed as replacement trustee for the second plaintiff. The second and third plaintiffs commenced a proceeding in the Federal Court of Australia for directions and judicial advice to assert that the second plaintiff was entitled to retain the benefit of the judgment sum paid by the seventh defendant to the second plaintiff. The first, second and third defendants sought declaratory relief that the second plaintiff held the trust property, including the judgment sum, on constructive trust for the first and second defendants and an order that the second plaintiff transfer the trust property to the third defendant. The third defendant was unsuccessful in its claims for relief in the Federal Court proceeding.

The court found that the third defendant was precluded from pursuing the same arguments on its application for leave to enter into the deed of variation on the basis of issue estoppel or abuse of process. The court held that the third defendant was bound by the decision of the Federal Court and could not relitigate the same issues in the current proceeding. The court also found that the share subscription agreement between the second plaintiff and the sixteenth defendant executed on 13 January 2016 was voidable under s 588FE of the Corporations Act 2001 (Cth) and void ab initio against the second plaintiff. The court cancelled the two billion ordinary shares in the capital of China First Pty Ltd issued to the second plaintiff on 13 January 2016. The court ordered that the seventh defendant must pay interest to the second plaintiff on the judgment amount awarded by the Court of Appeal on 25 June 2021 in the sum of $13,497,177.02, and that the seventh, sixteenth and twenty-second defendants must pay the second and third plaintiffs’ costs of the proceeding relating to Part W of the statement of claim, and the costs of proceedings BS4720/17 (including any reserved costs ordered in both proceedings), on the standard basis, to be assessed if not agreed.

Orders

Orders of the court

1. The third defendant’s application filed 23 September 2022 is dismissed.

2. The third defendant must pay the second and third plaintiffs’ costs of the application filed 23 September 2022.

3. It is declared that the share subscription agreement between the second plaintiff and the sixteenth defendant executed on 13 January 2016 (share subscription agreement) is voidable under s 588FE of the Corporations Act 2001 (Cth) (the Act).

4. Pursuant to s 588FF of the Act is it declared that the share subscription agreement is void ab initio against the second plaintiff.

5. The two billion ordinary shares in the capital of China First Pty Ltd issued to the second plaintiff on 13 January 2016 are cancelled.

6. The seventh defendant must pay interest to the second plaintiff on the judgment amount awarded by the Court of Appeal on 25 June 2021 in the sum of $13,497,177.02.

7. The seventh defendant must pay the second plaintiff’s costs of the proceeding relating to Part NA of the statement of claim, and the costs of proceedings BS3202/17 (including any reserved costs ordered in both proceedings), on the standard basis, to be assessed if not agreed.

8. The first, second, fifteenth and sixteenth defendants must pay the second and third plaintiffs’ costs of the proceeding relating to Part U of the statement of claim, and the costs of proceeding BS6847/16 (including any reserved costs ordered in both proceedings), on the standard basis, to be assessed if not agreed.

9. The seventh, sixteenth and twenty-second defendants must pay the second and third plaintiffs’ costs of the proceeding relating to Part W of the statement of claim, and the costs of proceedings BS4720/17 (including any reserved costs ordered in both proceedings), on the standard basis, to be assessed if not agreed.

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 Pty Ltd & Ors [2023] QSC 246
PARTIES:	STEPHEN JAMES PARBERY IN HIS CAPACITY AS LIQUIDATOR OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (first plaintiff) 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) ALEXANDER GUEORGUIEV SOKOLOV (nineteenth defendant) ZHENGHONG ZHANG (twentieth defendant) SCI LE COEUR DE L’OCEAN (twenty-first defendant) DOMENIC MARTINO (twenty-second defendant)
FILE NO:	BS6593 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	3 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2022
JUDGE:	Mullins P
ORDERS:	1. The third defendant’s application filed 23 September 2022 is dismissed. 2. The third defendant must pay the second and third plaintiffs’ costs of the application filed 23 September 2022. 3. It is declared that the share subscription agreement between the second plaintiff and the sixteenth defendant executed on 13 January 2016 (share subscription agreement) is voidable under s 588FE of the *Corporations Act 2001* (Cth) (the Act). 4. Pursuant to s 588FF of the Act is it declared that the share subscription agreement is void ab initio against the second plaintiff. 5. The two billion ordinary shares in the capital of China First Pty Ltd issued to the second plaintiff on 13 January 2016 are cancelled. 6. The seventh defendant must pay interest to the second plaintiff on the judgment amount awarded by the Court of Appeal on 25 June 2021 in the sum of $13,497,177.02. 7. The seventh defendant must pay the second plaintiff’s costs of the proceeding relating to Part NA of the statement of claim, and the costs of proceedings BS3202/17 (including any reserved costs ordered in both proceedings), on the standard basis, to be assessed if not agreed. 8. The first, second, fifteenth and sixteenth defendants must pay the second and third plaintiffs’ costs of…