Schneider v Alusa - [2012] QSC 37

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/plaintiff

SOLICITORS:

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…

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.

Continue reading Schneider v Alusa

Details

AGLC: Schneider v Alusa [2012] QSC 37
Case: [2012] QSC 37
Decision Date: 28 February 2012

CaseChat Overview and Summary

In the case of Schneider v Alusa, the defendant sought an order for security for costs under rule 671(b) of the relevant procedural rules. The plaintiff, acting as a trustee, brought an action for the benefit of both himself and others. The defendant argued that rule 671(b) applied even if the plaintiff was also suing for his own benefit. The legal issue was whether the rule applied in circumstances where the plaintiff was suing for his own benefit as well as the benefit of others.

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

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:	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/plaintiff
SOLICITORS:	Lyne & Co for the applicant/defendants Preston Law for the respondent/plaintiff