Parbery v QNI Metals Pty Ltd - [2018] QSC 141

SUPREME COURT OF QUEENSLAND

CITATION:

Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 141

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:

11 June 2018

DELIVERED AT:

Cairns

HEARING DATE:

11 June 2018

JUDGE:

Bond J

ORDER:

The orders of the Court are that:

(a)     The stay of the operation of orders 16 and 17, which was ordered on 25 May 2018, is discharged.

(b)     Order 16 of the orders made on 25 May 2018 be set aside and in lieu thereof, the following order is inserted:

16.        Subject to order 17, each of the defendants must, within 30 days of 11 June 2018 (the Provision Date) swear an affidavit and serve it on the plaintiffs’ solicitors which, to the best of their abilities, sets out (current as at 25 May 2018) all their assets, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of their interest in the assets.

(c)      The costs of the applications heard today be the parties’ respective costs in the application for freezing orders brought by the first and second plaintiffs in the consolidated proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE ORDERS – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING 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 141
Decision Date: 11 June 2018

CaseChat Overview and Summary

Parbery v QNI Metals Pty Ltd involved the plaintiff seeking amendments to freezing and ancillary orders made by the court. The dispute was heard in the Supreme Court of Queensland, with the primary focus on whether the court should modify an ancillary order requiring the defendants to provide asset information within a short timeframe. The case also considered whether the ancillary orders should remain stayed pending the outcome of an appeal and a stay application filed in the Court of Appeal. The legal issues before the court included whether the court had the inherent power to amend orders to give effect to its intended meaning and whether the ancillary orders should be stayed pending the appeal's resolution.

The court addressed these issues by first examining the inherent power to amend orders to reflect the court's intended meaning. It noted that while the court had indicated during oral arguments that counsel would have an opportunity to be heard on the ancillary order at the time judgment was pronounced, counsel was not given this opportunity before the order was made. However, the operation of the ancillary order was stayed pending further hearing. The court found that, at the further hearing, the ancillary order should be set aside and replaced with an order imposing a different timeframe for providing asset information. The court then considered the request to stay the ancillary orders pending the outcome of the appeal and stay application. Given the complexity and the need to ensure that the proceedings were fair and just, the court decided to discharge the stay on the ancillary orders and proceed with the amended order.

The final orders of the court included discharging the stay of the operation of the ancillary orders, setting aside the original ancillary order, and inserting a new order that required the defendants to provide asset information within 30 days of a specified date. Additionally, the court ordered that the costs of the applications heard that day would be the respective costs of the parties in the application for freezing orders.

Orders

Orders of the court

The orders of the Court are that:

(a) The stay of the operation of orders 16 and 17, which was ordered on 25 May 2018, is discharged.

(b) Order 16 of the orders made on 25 May 2018 be set aside and in lieu thereof, the following order is inserted:

16. Subject to order 17, each of the defendants must, within 30 days of 11 June 2018 (the Provision Date) swear an affidavit and serve it on the plaintiffs’ solicitors which, to the best of their abilities, sets out (current as at 25 May 2018) all their assets, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of their interest in the assets.

(c) The costs of the applications heard today be the parties’ respective costs in the application for freezing orders brought by the first and second plaintiffs in the consolidated proceeding.

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 [2018] QSC 141
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:	11 June 2018
DELIVERED AT:	Cairns
HEARING DATE:	11 June 2018
JUDGE:	Bond J
ORDER:	The orders of the Court are that: (a) The stay of the operation of orders 16 and 17, which was ordered on 25 May 2018, is discharged. (b) Order 16 of the orders made on 25 May 2018 be set aside and in lieu thereof, the following order is inserted: 16. Subject to order 17, each of the defendants must, within 30 days of 11 June 2018 (the Provision Date) swear an affidavit and serve it on the plaintiffs’ solicitors which, to the best of their abilities, sets out (current as at 25 May 2018) all their assets, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of their interest in the assets. (c) The costs of the applications heard today be the parties’ respective costs in the application for freezing orders brought by the first and second plaintiffs in the consolidated proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE ORDERS – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND…