Phillips & Ors v Duncan

[2004] QDC 45

[2004] QDC 045

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

GEOFFREY ROBERT PHILLIPS and LYNETTE PHILLIPS and BRETT SEYMOUR MURRAY and JANETTE SEYMOUR MURRAY and PHILLIP ROBERTS	Applicants
and
PHILLIP DUNCAN	Respondent

SOUTHPORT

..DATE 21/02/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r.163 - successful application by defendant for orders that if plaintiffs fail to comply with a request for particulars, Mareva and Anton Pillar orders obtained by them ex parte, be discharged.

HIS HONOUR:  This application provides the Court with an insight of a kind not often vouchsafed to it into the consequences of Mareva and Anton Pillar orders made ex parte.  As it happens, I was the Judge on the 29th of June 2004, making such orders.  I will incorporate in today's reasons without repeating them, what was said on that occasion.

The chief effect of the orders made was to impound the proceeds of sale of Mr Duncan's residential property.  He is the applicant today.  The material before the Court indicates that the proceeds of sale would otherwise have been available to him were of the order of $470,000.

The plaintiffs, then represented by Michael Sing, solicitor, have agreed that given that $250,000 is the limit of this Court's monetary jurisdiction (indeed, the claim had to be amended down from $265,000 to give the Court jurisdiction), Mr Duncan might deal with the surplus of the proceeds of sale above $250,000.

Mr Provest's firm came into the matter early, making what seems to me a reasonable request for particulars by letter of the 20th of July 2004.  There has been no response to it, notwithstanding repeated requests.  I am given to understand that there have been direct contacts between the plaintiffs and Mr Duncan, but the only formal change of representation is that the fifth plaintiff, Mr Roberts, is now represented by Paul Bone, solicitor of Cooroy.  He has been engaging in correspondence with Mr Provest, as has Michael Sing Lawyers, the plaintiffs' original solicitors.  They have, according to the correspondence, no further connection with the matter, but they are still solicitors on the record for the Mr and Mrs Phillips and the Seymour Murrays, at least.  Reference to Paul Bone's correspondence suggests that this description of Paul Bone as "solicitors for the plaintiffs" is incorrect.

The application has been served (for want of any better information as to appropriate addresses available to Mr Provest) on Michael Sing Lawyers, so far as the first four plaintiffs are concerned, and on Paul Bone so far as the fifth plaintiff is concerned.

This application shows it was listed for 9.45 a.m. today.  At five to 10 the plaintiffs were called individually without result, and at about 10.15 the plaintiffs and both sets of solicitors were again called individually without result.

The Court has some concern about acceding to the relief sought by Mr Duncan's application.  The effect of it is that if particulars as requested are not provided within a short period, the amended statement of claim will be struck out and the Mareva and Anton Pillar orders of the 29th of June 2004 will be discharged.  Also, the defendant will be at liberty to enter a judgment.

The plaintiffs appear to be lay people who lost investment funds which they say Mr Duncan is responsible for.  Whether they are correct remains to be seen.

At one stage, it seemed Mr Phillips may have been representing all of them.  I do not know whether Mr Roberts has now taken over that role. 

It is one of the unsatisfactory aspects of our justice system that when litigants such as the present plaintiffs obtain interlocutory orders, either of the present kinds or other injunctive relief, they are often content with the status quo and feel no particular pressure to advance the proceeding which, of course, is what the rules and practice of the Court want them to do.

The present application will bring things to a head.  Is Paul Bone on the record yet?  Has he filed a notice that he is acting?

MR PROVEST:  He has not served me with a notice of change, your Honour.  He said to me in the letter of 8 December that he had done that.

HIS HONOUR:  Orders are made as follows, according to the draft which I have initialled.  I will read out so that we will get a transcript to be clear what it is.

The order of the Court is:

(1) That pursuant to rule 161 of the Uniform Civil Procedure Rules, the plaintiffs provide to the defendant within seven days of service of this order, the further and better particulars requested by the defendant in a letter from the solicitors for the defendant to the solicitors for the plaintiff dated 20 July 2004, exhibited to the affidavit of Geoffrey William Provest, sworn 30 December 2004.

MR PROVEST:  Your Honour, sorry, could I interrupt for a second.  I just feel as I've made a mistake.  I swore that affidavit on the 3rd of January.

HIS HONOUR:  In fact it was filed.

MR PROVEST:  It was filed 11 January.

HIS HONOUR:  All right.  I will change it to filed 11 January 2005.  So, that is the reference there.  Affidavit of Geoffrey William Provest filed 11 January 2005.

(2)  That, if the plaintiffs do not provide the further and better particulars required under order (1) within 14 days of the date of service of these orders by service on Michael Sing Lawyers and on Paul Bone, solicitor, then pursuant to rule 163 the amended statement of claim be struck out and the Mareva order and the Anton Pillar orders of Robin DCJ made on 29 June 2004 be discharged (being orders 1-11, inclusive of those orders), and that the defendant be at liberty to enter judgment.

(3)  That the plaintiffs pay the costs of the defendant of his application filed the 11th of January 2005 to be assessed.

I might add, that in the absence of argument from the plaintiffs as to the appropriateness of all components of the request for particulars, I have not troubled to embark on a detailed examination myself.  If there is any scope for exception being taken, no doubt the plaintiffs will organise an appropriate application to the Court.

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