Sino Iron Pty Ltd v Palmer - [2014] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:

Sino Iron Pty Ltd & Anor v Palmer & Anor [2014] QSC 259

PARTIES:

SINO IRON PTY LTD
ACN 058 429 708
(first plaintiff)
and
KOREAN STEEL PTY LTD
ACN 058 429 600
(second plaintiff)
v
CLIVE FREDERICK PALMER
(first defendant)
and
COSMO DEVELOPMENTS PTY LTD
ACN 010 793 790
(second defendant)

FILE NO:

BS6791/14

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

20 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2014

JUDGE:

Jackson J

ORDERS:

The order of the Court is that:

1. The application filed 22 August 2014 is dismissed.

2. Costs of the application be reserved until 26 November 2014.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the defendants apply to have the proceedings stayed as an abuse of process as lacking reasonable grounds, as containing fictitious causes of action, as having a collateral and improper purpose and bringing the administration of justice into disrepute – where the parties had a contractual arrangement where the plaintiffs paid monies into a fund which was to be used for specified purposes under the contract – where it is alleged that the defendants were involved in breaches of trust – where the defendants submitted that the plaintiffs’ action was bound to fail, as it could not be shown that the funds were impressed with a trust – where the defendants submitted that the plaintiffs had suffered no loss as the monies remain in or had been paid back to the account – where the plaintiffs have failed to accept compromises offered by the defendants – where the defendant submits the proceeding is an impermissible parallel proceeding with a concurrent arbitration – whether the proceeding should be stayed as an abuse of process on any of the grounds alleged

Commercial Arbitration Act 2013 (Qld), s 27E, s 27F(5)

Ashby v Slipper (2014) 219 FCR 322, cited
Batistatos v Road and Traffic Authority of New South Wales (2006) 226 CLR 256, cited
Byrnes v Kendle (2011) 243 CLR 253, cited
Dey v Commissioner of Railways (1949) 78 CLR 62, cited
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited
Hearne v Street (2008) 235 CLR 125, applied
Jessup v Queensland Housing Commission [2002] 2 Qd R 270, cited
Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, cited
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, cited
Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427, applied
Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] 1 AC 514, cited
Puma Australia Pty Ltd v Sportsman’s Australia Limited (No 2) [1995] 2 Qd R 159, cited
R v Weisz; ex parte Hector MacDonald Ltd [1951] 2 KB 611, cited
Walton v Gardiner (1993) 177 CLR 378

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: [2014] QSC 259
Decision Date: 20 October 2014

CaseChat Overview and Summary

Sino Iron Pty Ltd commenced proceedings against Clive Palmer and others, alleging breaches of trust in relation to monies held in a fund established under a contractual arrangement. The defendants applied to have the proceedings stayed on various grounds, including that the action was an abuse of process, lacked reasonable grounds, contained fictitious causes of action, had a collateral and improper purpose, and brought the administration of justice into disrepute. The defendants also argued that the proceedings were an impermissible parallel proceeding with a concurrent arbitration. The legal issues before the court were whether the plaintiffs' action was bound to fail, whether the plaintiffs had suffered any loss, and whether the proceedings should be stayed as an abuse of process.

The court considered the defendants' submissions and found that the plaintiffs' action was not bound to fail as it could be shown that the funds were impressed with a trust. The court also found that the plaintiffs had suffered a loss as the funds had not been used for the specified purposes under the contract. The court held that the proceedings were not an abuse of process, and therefore dismissed the application. The court held that the plaintiffs had failed to accept compromises offered by the defendants, and that the proceedings were not an impermissible parallel proceeding with a concurrent arbitration.

The court ordered that the application filed on 22 August 2014 be dismissed and that the costs of the application be reserved until 26 November 2014.

Orders

Orders of the court

The order of the Court is that:

1. The application filed 22 August 2014 is dismissed.

2. Costs of the application be reserved until 26 November 2014.

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:	Sino Iron Pty Ltd & Anor v Palmer & Anor [2014] QSC 259
PARTIES:	SINO IRON PTY LTD ACN 058 429 708 (first plaintiff) and KOREAN STEEL PTY LTD ACN 058 429 600 (second plaintiff) v CLIVE FREDERICK PALMER (first defendant) and COSMO DEVELOPMENTS PTY LTD ACN 010 793 790 (second defendant)
FILE NO:	BS6791/14
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	20 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2014
JUDGE:	Jackson J
ORDERS:	The order of the Court is that: 1. The application filed 22 August 2014 is dismissed. 2. Costs of the application be reserved until 26 November 2014.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the defendants apply to have the proceedings stayed as an abuse of process as lacking reasonable grounds, as containing fictitious causes of action, as having a collateral and improper purpose and bringing the administration of justice into disrepute – where the parties had a contractual arrangement where the plaintiffs paid monies into a fund which was to be used for specified purposes under the contract – where it is alleged that the defendants were involved in breaches of trust – where the defendants submitted that the plaintiffs’ action was bound to fail, as it could not be shown that the funds were impressed with a trust – where the defendants submitted that the plaintiffs had suffered no loss as the monies remain in or had been paid back to the account – where the plaintiffs have failed to accept compromises offered by the defendants – where the defendant submits the proceeding is an impermissible parallel proceeding with a concurrent arbitration – whether the proceeding should be stayed as an abuse of process on any of the grounds alleged Commercial Arbitration Act 2013 (Qld), s 27E, s 27F(5) Ashby v Slipper (2014) 219 FCR 322, cited Batistatos v Road and Traffic Authority of New South Wales (2006) 226 CLR 256, cited Byrnes v Kendle (2011) 243 CLR 253, cited Dey v Commissioner of Railways (1949) 78 CLR 62, cited Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited Hearne v Street (2008) 235 CLR 125, applied Jessup v Queensland Housing Commission [2002] 2 Qd R 270, cited Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, cited Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, cited Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427, applied Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] 1 AC 514, cited Puma Australia Pty Ltd v Sportsman’s Australia Limited (No 2) [1995] 2 Qd R 159, cited R v Weisz; ex parte Hector MacDonald Ltd [1951] 2 KB 611, cited Walton v Gardiner (1993) 177 CLR 378