SUPREME COURT OF QUEENSLAND
CITATION:
Schneider v Alusa & Ors [2012] QSC 37
PARTIES:
JOHANN JOSEF SCHNEIDER
(Respondent/Plaintiff)
v
ALUSA PTY LTD (ACN 084 846 533)
(Applicant/First Defendant)
ALAN ROSS GAYNOR
(Applicant/Second Defendant)
ALAN ROSS GAYNOR as PERSONAL REPRESENTATIVE OF THE ESTATE OF URSULA JANE GAYNOR
(Applicant/Third Defendant)FILE NO/S:
324 of 2010
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court, Cairns
DELIVERED ON:
28 February 2012
DELIVERED AT:
Cairns
HEARING DATE:
3 February 2012
JUDGE:
Henry J
ORDER:
The application for an order for security for costs is dismissed.1.
Costs reserved.2.
CATCHWORDS:
PROCEDURE – COSTS – SECURITY FOR COSTS – where the defendant seeks an order for security for costs under r 671(b) – where the plaintiff is suing in capacity as trustee - whether the sub-rule applies where the plaintiff is suing for his own benefit as well as the benefit of others
PROCEDURE – COSTS – SECURITY FOR COSTS – where the defendant seeks an order for security for costs under r 671(h) – where application by the plaintiff made at the same time and consented to by defendant – where application could have been brought earlier – whether delay, prospects of success or means of determinative weight
Uniform Civil Procedure Rules 1999 (Qld) r 18, r 671(b),(h), r 672.Bride (as trustees of the Pinwernying Family Trust) v Stewart Unreported, Fed. Court of Aust., WA G191 of 1998, 19 January 1990, BC9003288.
Cowell v Taylor (1885) 31 Ch D 34.
Green (as liquidator of Armico Mining Pty Ltd) v CGU Insurance Ltd (2008) 67 ACSR 105.
Jeffrey & Katauskas v SST Consulting (2009) 239 CLR 75.
Upton and Anor v TVW Enterprises LTD and Anor (1984) 57 ALR 361.COUNSEL:
T W Quinn for the applicant/defendants
M Jonsson for the respondent/plaintiffSOLICITORS:
Lyne & Co for the applicant/defendants
Preston Law for the respondent/plaintiff
By an application filed 3 January 2012, the defendants applied for an order, pursuant to r 670 of the Uniform Civil Procedure Rules (“UCPR”), that the plaintiff give security in the sum of $150,000 for the defendants’ costs of and incidental to the proceedings.
Background
The Further Amended Statement of Claim seeks the taking of an account of monies received or alternatively damages for conversion in respect of cattle allegedly removed by the defendants from a property known as St Ronans and in respect of the progeny of such cattle.
St Ronans was one of three adjoining cattle properties, the other two being Springfield and Sundown, owned by a group of companies controlled by Donald Logan (“the Logan Group”). The Logan Group ran cattle on all three properties, treating the properties as one.
The Logan Group sold St Ronans to R & E Henry Pty Ltd by a contract dated 23 June 1997. R & E Henry Pty Ltd then on-sold St Ronans by contract dated 3 December 1998 to the plaintiff, Johann Schneider, and Klaus Schneider as trustees of Schneider Property Trust (“the trustees”).
The contract between…
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- AGLC
- Schneider v Alusa [2012] QSC 37
- Case
- [2012] QSC 37
- Decision Date
CaseChat Overview and Summary
The court examined the language of rule 671(b) and found that it did not explicitly exclude situations where the plaintiff was also suing for his own benefit. The court held that the rule applied in such circumstances. However, the court also considered the application for security for costs under rule 671(h). The plaintiff had made an application for security for costs at the same time as the defendant, and the defendant consented to the application. The court found that the delay in bringing the application, the prospects of success, and the means of the parties were determinative factors. The court held that the delay, prospects of success, and means of the parties were of determinative weight, and the application for security for costs was dismissed.
The court further found that the costs should be reserved, and no order was made regarding costs. The application for an order for security for costs was dismissed, and the costs were reserved.
Orders
Orders of the court
The application for an order for security for costs is dismissed.1.
Costs reserved.2.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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