SUPREME COURT OF QUEENSLAND
CITATION:
Suncare Constructions Australia Pty Ltd & Anor v Gainspace (Mackay) Pty Ltd [2016] QSC 67
PARTIES:
SUNCARE CONSTRUCTIONS AUSTRALIA PTY LTD ACN 132 210 238 (IN LIQUDATION)
(first plaintiff)
and
SUNCARE CIVIL PTY LTD ACN 143 268 937 (IN LIQUIDATION)
(second plaintiff)
v
GAINSPACE (MACKAY) PTY LTD ACN 119 510 710 AS TRUSTEE FOR THE STEVENSON STREET DEVELOPMENT TRUST
(defendant)
FILE NO:
BS9314/13
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
31 March 2016
DELIVERED AT:
Brisbane
HEARING DATE:
9 February 2016
JUDGE:
Jackson J
ORDER:
The order of the court is that:
1. Within twenty one (21) days the plaintiffs give security for the defendant’s costs of the proceeding up to and including the first day of trial in the sum of $150,000 in a form satisfactory to the registrar of the court and in default, the proceeding is stayed until further order.
2. The plaintiffs pay the defendant’s costs of this application on the standard basis.
3. The proceeding is listed for hearing on the Commercial List, for review, on 28 April 2016 at 9:30am.
CATCHWORDS:
PROCEDURE – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – PLAINTIFF'S OR APPLICANT'S IMPECUNIOSITY – where the plaintiffs’ insolvency is due to the defendant’s conduct in failing to pay the claimed debt or damages – whether the defendant’s conduct must be related to particular debts to other creditors that the plaintiff is unable to pay – whether the defendant’s conduct must involve some form of misconduct or unacceptable business dealings qua the plaintiff
Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, cited
Contamination Control Laboratories Pty Ltd v Reyer [2010] QSC 1, cited
Dalma Formwork Pty Ltd (administrators appointed) v Concrete Constructions Group [1998] NSWSC 472, not followedGentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405, cited
Gore v Justice Corp Pty Ltd (2002) 119 FCR 429; [2002] FCAFC 83, cited
Green v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148, citedHarpur v Ariadne Australia Ltd [1984] 2 Qd R 523, considered
Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276; [2007] NSWCA 291, considered
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189, citedLanai Unit Holdings Pty Ltd v Mallesons Stephen Jacques [2016] QSC 2, cited
Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133, cited
Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304, cited
Melunu Pty Ltd v Claron Constructions Pty Ltd [2004] NSWSC 1064, cited
Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420, cited
Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609, applied
Southern…
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- Case
- [2016] QSC 67
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to address included the discretionary factors relevant to ordering security for costs. Specifically, the court needed to determine if the plaintiff's impecuniosity, resulting from the defendant's failure to pay the claimed debt or damages, was a sufficient ground for requiring security. Additionally, the court examined whether the defendant's conduct must be linked to specific debts to other creditors that the plaintiff could not pay, or whether it must involve some form of misconduct or unacceptable business dealings.
In its reasoning, the court found that the plaintiff's financial difficulties were indeed linked to the defendant's failure to pay the claimed debt. The court held that the defendant's conduct did not necessarily need to involve misconduct or be related to particular debts to other creditors, as the plaintiff's inability to meet its financial obligations was sufficient. The court therefore ordered that the plaintiff must provide security for the defendant's costs up to and including the first day of trial in the specified sum of $150,000. Furthermore, the plaintiff was required to pay the defendant's costs of the application on the standard basis. The proceeding was then listed for hearing on the Commercial List for review on a specified date.
Orders
Orders of the court
The order of the court is that:
1. Within twenty one (21) days the plaintiffs give security for the defendant’s costs of the proceeding up to and including the first day of trial in the sum of $150,000 in a form satisfactory to the registrar of the court and in default, the proceeding is stayed until further order.
2. The plaintiffs pay the defendant’s costs of this application on the standard basis.
3. The proceeding is listed for hearing on the Commercial List, for review, on 28 April 2016 at 9:30am.
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.