Tru Blu Excavations Pty Ltd (in liq) v Whiting

[2011] QDC 268

[2011] QDC 268

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 124 of 2011

TRU BLU EXCAVATIONS PTY LTD (IN LIQUIDATION)	Plaintiff
and
DARYL JOHN WHITING AND OTHERS	Defendants

BRISBANE

..DATE 28/10/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 292

Circumstances of confusion in listing in which application for summary judgement for some of the plaintiff's claims was adjourned to ensure respondents were properly aware
HIS HONOUR:  This is an application by a company in liquidation and the liquidators for relief against one of the company's directors and an associated company.

The company has, on the case made out in the application, paid out what used to be called preferences and, perhaps worse, been denied, the value of debts to it which the trade debtors ought to have paid to the plaintiff company, but which were “paid” instead to the defendant company.  The claim also seeks, as well, determinations that certain transactions were voidable, and recovery of equipment said to belong to the plaintiff company which the second defendant is believed to have.

The application before the court filed on the 13th of October sought correction of the ACN of the second defendant in the title of the proceedings and also judgment for parts of the claim. 

Inexplicably, it was set down for hearing on the 17th of October 2011 by action of the Registry.  That allowed insufficient time for service.  Arrangements were made, administratively, between the applicant's solicitors and the Registry which Mr Chadwick tells me about and details of which have been confirmed by my associate's inquiries of the Registry direct.

Under those arrangements, the return date on the application was to be amended to today's date.  That hasn't happened in respect of the file copy of the application but I'm satisfied that it had occurred in respect of the copy which was served on the defendants' solicitors on the record in the ordinary way.  They were invited to confirm with the Registry the change in date in a clear covering letter.

The matter did not appear in today's list nor have the defendants appeared when called outside Court today at 10 a.m.  A complication is that their solicitors on the record who have been served with the application, say they are no longer acting.  They remain on the record.  They advised that the first defendant is taking steps to have himself made bankrupt. 

I'd agree with Mr Chadwick that, although the matter could have proceeded today, it's better to allow a short adjournment so that steps could be taken to notify the defendants when it's coming on. 

In the circumstances, the failure of reasonable efforts to achieve such notification may not necessarily be fatal to the plaintiffs who ought not to lose the benefit of a usable address for service which they've had until the complicating factor that I mentioned and the application will be adjourned to the 2nd of November 2011 at 9.30 a.m..  The understanding is that that will be before me - which may produce some saving of time.

Before any orders can be made on the application, it's necessary for the court to vacate an order made by Judge Reid on the 17th of October 2011.  The matter was entered on the list for that day and through some slip in the Registry was not taken off the list.  Judge Reid struck the application out with no order as to costs on the basis of lack of appearances.

That's an order that was made in the absence of the plaintiffs and they have the traditional entitlement of a litigant in that situation to apply to the Court to have the order changed or set aside.  It's appropriate that that be done.  So, Judge Reid's order of the 17th of October 2011 striking out the application is set aside and the other orders indicated are made.  We’ll see you next Wednesday morning, Mr Chadwick.

...

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DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 124 of 2011

TRU BLU EXCAVATIONS PTY LTD (IN LIQUIDATION)	Plaintiff
and
DARYL JOHN WHITING & ORS	Defendant

BRISBANE

..DATE 02/11/2011

ORDER

HIS HONOUR:  The court makes an order in terms of the initialled draft.  It authorises amendment of the title of the proceeding pursuant to rule 275(3) to refer to the correct ACN for the second defendant.

It orders summary judgment in respect of some of the claims and pursuant to rule 292 in paragraph 3, that the defendants pay to the plaintiffs the amount of $120,560.30 in respect of so much of the claim against the first defendant in paragraph 3 of the claim and of the claim in paragraph 5 of the claim against the second defendant plus interest from the date of filing the Statement of Claim to today of $9,543.20.

The defendants are ordered to pay costs of and incidental to the proceeding to be assessed if not agreed and for the purposes of making things clear, the order also includes a stipulation that the proceeding remain on foot in respect of the balance of the claim.

It's brought by a company in liquidation and the liquidators against Mr Whiting, who was a director and also is a director of the second defendant company.  The material before the Court, essentially records of the company which the liquidators have, which have been confirmed by subsequent inquiry, indicates that one or other of the defendants received payments due to the plaintiff company which, in blunt terms, was a diversion of that company's entitlements.

There are other aspects of the claim not pursued in this summary judgment application seeking determinations that unreasonable director related transactions - avoidable transactions under the Corporations Act 2001 (Cth) have occurred and payment of moneys, in consequence thereof in respect of which it remains on foot for possible determinations in this proceeding; there is an issue of a further challenged payment from the plaintiff company to the defendant company, also claims for delivery up of possession of equipment claimed to be the plaintiff company's.

Mr Chadwick's helpful written outline exposes deficiencies in the defendants’ pleading for purposes of rule 171, but it's not necessary to go over those for the purposes of the Court being satisfied that part of the claim the subject of today’s judgement is good.

The number of dollars in the judgment is less than might have been predicted by reference to the claim, Statement of Claim and other documents.  The explanation is that the judgment was made that there was uncertainty about some of the payments as to whether they might not relate to post-liquidation transactions.

The defendants have taken no role in the proceeding since the filing on the 7th of March of their inadequate Notice of Intention to Defend and Defence.  The plaintiffs and the Court have gone out of their way in confusing circumstances affecting the listing of this matter due to a mix-up in the Registry to ensure that the defendants have been advised of exactly what might happen affecting their interests and when.

For reasons that are perhaps obvious, they've kept away from the Court.  Order as per initialled draft.

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