Parbery v QNI Metals Pty Ltd - [2019] QSC 207

SUPREME COURT OF QUEENSLAND

CITATION:

Parbery & Ors v QNI Metals Pty Ltd & Ors [2019] QSC 207

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 to stay the proceeding

DELIVERED ON:

23 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 21 August 2019

JUDGE:

Mullins J

ORDER:

The stay application is dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the special purpose liquidator and general purpose liquidators pursued a consolidated proceeding to recover funds for the benefit of creditors in the company’s liquidation – where the special purpose liquidator settled his claims with the defendants – where there were few remaining creditors – where one of the company’s alleged creditors is also the litigation funder – whether it is an abuse of process for the general purpose liquidators to continue with the proceeding to recover their outstanding remuneration and expenses in respect of the litigation and the administration and the premium payable to the litigation funder

Elfic Ltd v Macks [2003] 2 Qd R 125; [2001] QCA 219, cited

Hall v Poolman (2009) 75 NSWLR 99; [2009] NSWCA 64, considered
Parbery v QNI Metals Pty Ltd [2018] QSC 240, related
Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23, considered
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, considered

COUNSEL:

S L Doyle QC, M J Doyle and N…

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: [2019] QSC 207
Decision Date: 23 August 2019

CaseChat Overview and Summary

Parbery v QNI Metals Pty Ltd involves a dispute regarding the continuation of legal proceedings to recover funds for the benefit of creditors in the liquidation of a company. The case was heard in the Supreme Court of South Australia. The special purpose liquidator of QNI Metals Pty Ltd settled his claims with the defendants, and the general purpose liquidators continued with the proceeding to recover their outstanding remuneration and expenses in respect of the litigation and the administration, as well as the premium payable to the litigation funder. The defendants, represented by the plaintiffs, argued that it was an abuse of process for the general purpose liquidators to continue with the proceeding.

The court was required to determine whether it was an abuse of process for the general purpose liquidators to continue with the proceeding to recover their outstanding remuneration and expenses in respect of the litigation and the administration, as well as the premium payable to the litigation funder, given that the special purpose liquidator had settled his claims with the defendants. The court considered whether the general purpose liquidators had an arguable case for their claims and whether there were any other factors that would justify the continuation of the proceeding.

The court dismissed the stay application, finding that the general purpose liquidators had an arguable case for their claims and that there were no other factors that would justify the continuation of the proceeding. The court held that the general purpose liquidators had a duty to pursue the company’s claims and that they had not acted improperly in continuing with the proceeding. The court further held that the litigation funder’s interest in the proceeding did not amount to an abuse of process.

The court ordered that the stay application be dismissed. The proceeding to recover the general purpose liquidators’ outstanding remuneration and expenses in respect of the litigation and the administration, as well as the premium payable to the litigation funder, was allowed to continue.

Orders

Orders of the court

The stay 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 Pty Ltd & Ors [2019] QSC 207
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 to stay the proceeding
DELIVERED ON:	23 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	19 and 21 August 2019
JUDGE:	Mullins J
ORDER:	The stay application is dismissed.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the special purpose liquidator and general purpose liquidators pursued a consolidated proceeding to recover funds for the benefit of creditors in the company’s liquidation – where the special purpose liquidator settled his claims with the defendants – where there were few remaining creditors – where one of the company’s alleged creditors is also the litigation funder – whether it is an abuse of process for the general purpose liquidators to continue with the proceeding to recover their outstanding remuneration and expenses in respect of the litigation and the administration and the premium payable to the litigation funder Elfic Ltd v Macks [2003] 2 Qd R 125; [2001] QCA 219, cited Hall v Poolman (2009) 75 NSWLR 99; [2009] NSWCA 64, considered Parbery v QNI Metals Pty Ltd [2018] QSC 240, related Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23, considered Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, considered
COUNSEL:	S L Doyle QC, M J Doyle and N…