Virgtel Ltd v Zabusky - [2012] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Virgtel Ltd & Anor v Zabusky & Ors [2012] QSC 42

PARTIES:

VIRGTEL LIMITED
(first applicant)
and
VIRGTEL GLOBAL NETWORKS NV
(second applicant)
v
HARVEY ZABUSKY
(first respondent)
and
AMALIA ZABUSKY
(second respondent)
and
EREZ ZABUSKY
(third respondent)
and
COMMSLOGIC PTY LTD (ACN 109 057 543)
(fourth respondent)
and
SOFTQUEST SOLUTIONS PTY LTD (ACN 057 679 599)
(fifth respondent)
and
VIRGIN TECHNOLOGIES LIMITED
(sixth respondent)

FILE NO:

BS 6547 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

2 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Daubney J

ORDERS:

Disposition of the joinder application

Upon:

(a) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguillia), by their counsel, giving the usual undertaking as to damages retrospective to the commencement of these proceedings; and

(b) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla), by their counsel, undertaking to be bound by the orders made in the proceedings for the provision of security for costs, namely the orders made on 10 August 2005, 9 November 2005 and 29 February 2008; and

(c) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla), by their counsel, undertaking to be liable in respect of the costs orders that have already been made against the applicants, Virgtel Limited and Virgtel Global networks NV or which may be made in the future in relation to orders previously made reserving costs

IT IS ORDERED THAT:

1. Viscaya Armadora SA (Panama) be joined as an applicant to the proceedings nunc pro tunc.

2. Viscaya Armadora SA (Anguilla) be joined as an applicant to the proceedings as from 7 August 2009, the date of its incorporation.

3. Costs reserved.

Disposition of the temporary stay application

1. The Order made on 9 September 2011 is varied to provide as follows:

“The respondents’ application for a temporary stay is dismissed with costs (including the reserved costs of and incidental to that application).”

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the parties were called on to bring an order providing for the joinder nunc pro tunc of two further companies as applicants – whether the companies will be joined as applicant’s to the proceedings

PROCEDURE – COSTS – PRACTICE MATTERS – FORM, EFFECT AND SETTLING OF ORDERS – where the parties were not called on, or given liberty to make submissions on costs in respect of the present proceeding – where, notwithstanding this, the applicants sought further specific orders in respect of costs of the application for a joinder – where costs in respect of the application had been reserved on a previous occasion – whether it is necessary to make any further orders

PROCEDURE – COSTS – PRACTICE MATTERS – FORM, EFFECT AND SETTLING OF ORDERS – where the parties were not called on, or given liberty to make submissions on costs in respect of the present proceeding –…

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.

Keep reading for free

Create a free CaseChat account to read Virgtel Ltd v Zabusky and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] QSC 42
Decision Date: 2 March 2012

CaseChat Overview and Summary

In the matter of Virgtel Ltd v Zabusky, the Supreme Court of Queensland was called upon to consider two primary issues: the joinder of additional companies as applicants in the proceedings and the determination of costs associated with these applications. The applicants, Virgtel Ltd and Virgtel Global Networks NV, sought to join Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla) as applicants, both nunc pro tunc and from a specific date. Additionally, the applicants pursued specific orders concerning costs, including those reserved for a previous stay application and the assessment of costs in relation to the current joinder application.

The court addressed the legal issues by first determining the conditions under which the additional companies could be joined as applicants. It was required to assess the undertakings given by Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla) concerning damages and their liability for costs. The court further scrutinized whether it was appropriate to make orders concerning costs, given that the parties had not been given an opportunity to make submissions on the matter. It also examined whether the judge should act as a cost assessor and direct the taxing officer in assessing these costs.

Upon reviewing the circumstances, the court concluded that Viscaya Armadora SA (Panama) could be joined as an applicant nunc pro tunc, and Viscaya Armadora SA (Anguilla) could be joined as from its incorporation date. The court reserved costs in relation to the joinder application and varied the previous order concerning the temporary stay to dismiss the respondents’ application with costs. It was determined that the applicants were not entitled to further specific orders regarding costs without proper submissions from the parties.

Orders

Orders of the court

Disposition of the joinder application

Upon:

(a) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguillia), by their counsel, giving the usual undertaking as to damages retrospective to the commencement of these proceedings; and

(b) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla), by their counsel, undertaking to be bound by the orders made in the proceedings for the provision of security for costs, namely the orders made on 10 August 2005, 9 November 2005 and 29 February 2008; and

(c) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla), by their counsel, undertaking to be liable in respect of the costs orders that have already been made against the applicants, Virgtel Limited and Virgtel Global networks NV or which may be made in the future in relation to orders previously made reserving costs

IT IS ORDERED THAT:

1. Viscaya Armadora SA (Panama) be joined as an applicant to the proceedings nunc pro tunc.

2. Viscaya Armadora SA (Anguilla) be joined as an applicant to the proceedings as from 7 August 2009, the date of its incorporation.

3. Costs reserved.

Disposition of the temporary stay application

1. The Order made on 9 September 2011 is varied to provide as follows:

“The respondents’ application for a temporary stay is dismissed with costs (including the reserved costs of and incidental to that application).”

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:	Virgtel Ltd & Anor v Zabusky & Ors [2012] QSC 42
PARTIES:	VIRGTEL LIMITED (first applicant) and VIRGTEL GLOBAL NETWORKS NV (second applicant) v HARVEY ZABUSKY (first respondent) and AMALIA ZABUSKY (second respondent) and EREZ ZABUSKY (third respondent) and COMMSLOGIC PTY LTD (ACN 109 057 543) (fourth respondent) and SOFTQUEST SOLUTIONS PTY LTD (ACN 057 679 599) (fifth respondent) and VIRGIN TECHNOLOGIES LIMITED (sixth respondent)
FILE NO:	BS 6547 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	2 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Daubney J
ORDERS:	Disposition of the joinder application Upon: (a) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguillia), by their counsel, giving the usual undertaking as to damages retrospective to the commencement of these proceedings; and (b) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla), by their counsel, undertaking to be bound by the orders made in the proceedings for the provision of security for costs, namely the orders made on 10 August 2005, 9 November 2005 and 29 February 2008; and (c) Viscaya Armadora SA (Panama) and Viscaya Armadora SA (Anguilla), by their counsel, undertaking to be liable in respect of the costs orders that have already been made against the applicants, Virgtel Limited and Virgtel Global networks NV or which may be made in the future in relation to orders previously made reserving costs IT IS ORDERED THAT: *1. Viscaya Armadora SA (Panama) be joined as an applicant to the proceedings nunc pro tunc.* 2. Viscaya Armadora SA (Anguilla) be joined as an applicant to the proceedings as from 7 August 2009, the date of its incorporation. 3. Costs reserved. Disposition of the temporary stay application 1. The Order made on 9 September 2011 is varied to provide as follows: “The respondents’ application for a temporary stay is dismissed with costs (including the reserved costs of and incidental to that application).”
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the parties were called on to bring an order providing for the joinder nunc pro tunc of two further companies as applicants – whether the companies will be joined as applicant’s to the proceedings PROCEDURE – COSTS – PRACTICE MATTERS – FORM, EFFECT AND SETTLING OF ORDERS – where the parties were not called on, or given liberty to make submissions on costs in respect of the present proceeding – where, notwithstanding this, the applicants sought further specific orders in respect of costs of the application for a joinder – where costs in respect of the application had been reserved on a previous occasion – whether it is necessary to make any further orders PROCEDURE – COSTS – PRACTICE MATTERS – FORM, EFFECT AND SETTLING OF ORDERS – where the parties were not called on, or given liberty to make submissions on costs in respect of the present proceeding –…