Williams v CD Protective Services (No. 2) - [2010] QSC 75

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v CD Protective Services (No. 2) [2010] QSC 75

PARTIES:

JULIE WILLIAMS AS OFFICIAL LIQUIDATOR OF C & D GLOBAL PROTECTION PTY LTD (IN LIQUIDATION)
(plaintiff)
v
C D PROTECTIVE SERVICES PTY LTD
(first defendant)
WHELAN, Craig Robert
(second defendant)
HELFERT, Joseph Aaron

(third defendant)

FILE NO/S:

SC No 8075 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

22 January 2010

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

14 January 2010

JUDGE:

Margaret Wilson J

ORDER:

On the defendants’ application for security for costs it is ordered:

1.   that the application be dismissed;

2.   that the defendants pay the plaintiff’s costs of and incidental to the application to be assessed on the standard basis.

On the defendants’ application to strike out all or part of the amended statement of claim it is ordered:

1.   that the plaintiff pay the defendants’ costs of and incidental to the application to be assessed on the standard basis.

On the plaintiff’s application for approval of the funding agreement it is ordered:

1.   that there be no order as to costs as between the plaintiff and the defendants;

2.   that the liquidator’s costs be costs in the liquidation.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – PLAINTIFF – where defendants seek an order that plaintiff provide security for costs – where plaintiff sues as liquidator of C & D Global Protection Pty Ltd – where plaintiff is a natural person – where general policy is that an order for security for costs will not be made against a natural person, save in the circumstances in paragraphs (b), (c), (d), (e) and (f) of r 671 of the Uniform Civil Procedure Rules 1999 (Qld) – where defendants rely on r 671(h) that the justice of the case requires the making of an order for security for costs – whether s 671(h) has been satisfied

Corporations Act 2001 (Cth), 477(2B)

Uniform Civil Procedure Rules 1999 (Qld), r 671, r 672

Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Limited (2008) 67 ACSR 105, considered
Jarbin Pty Ltd v Clutha Ltd (In liq) (2004) 180 FLR 393, considered

Robson v Robson [2008] QCA 36, considered

COUNSEL:

C A Johnstone for the plaintiff.

D Rangiah SC for the defendants.

SOLICITORS:

Minter Ellison Lawyers for the plaintiff.
Piper Alderman Lawyers for the defendants.

HER HONOUR: This is an application for security for costs. The defendants seek an order that the plaintiff provide security for costs in the amount of $264,500 or such other amount as the Court may determine. That is the defendants' solicitor's estimate of the costs of the proceeding, including an eight day trial. Their estimate of the costs to the first day of trial is $221,000.

The plaintiff Julie Williams sues as the liquidator of C & D Global Protection Pty Ltd. She is a natural person. In the claim she seeks to set aside a voidable transaction,…

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 Williams v CD Protective Services (No. 2)

Details

AGLC: Williams v CD Protective Services (No. 2) [2010] QSC 75
Case: [2010] QSC 75
Decision Date: 22 January 2010

CaseChat Overview and Summary

In the case of Williams v CD Protective Services (No. 2), the plaintiff, acting as the liquidator of C & D Global Protection Pty Ltd, brought an action against the defendants. The dispute centred around the defendants' request for an order that the plaintiff provide security for costs and their subsequent application to strike out all or part of the amended statement of claim. Additionally, the plaintiff sought approval of a funding agreement. The case was heard in the Queensland state court.

The primary legal issue was whether the court should grant the defendants' application for security for costs. This hinged on whether the conditions of r 671(h) of the Uniform Civil Procedure Rules 1999 (Qld) were met, which allows for such an order when the justice of the case requires it. The defendants argued that the plaintiff, despite being a natural person, should be required to provide security for costs under this provision. The court had to determine if the justice of the case warranted such an order.

The court found that the defendants had not demonstrated that the justice of the case required an order for security for costs under r 671(h). The court emphasised the general policy against making such orders against natural persons unless specific circumstances applied. Given the facts and arguments presented, the court concluded that the defendants had not satisfied the threshold set by the rule. Consequently, the application for security for costs was dismissed. The court also dealt with the other applications, ordering that the plaintiff pay the defendants' costs of their application to strike out the amended statement of claim, and that there be no order as to costs regarding the funding agreement.

In summary, the court dismissed the application for security for costs and ordered the defendants to pay the plaintiff's costs. It also ordered the plaintiff to pay the defendants' costs for their application to strike out the amended statement of claim. No costs were ordered regarding the funding agreement.

Orders

Orders of the court

On the defendants’ application for security for costs it is ordered:

1. that the application be dismissed;

2. that the defendants pay the plaintiff’s costs of and incidental to the application to be assessed on the standard basis.

On the defendants’ application to strike out all or part of the amended statement of claim it is ordered:

1. that the plaintiff pay the defendants’ costs of and incidental to the application to be assessed on the standard basis.

On the plaintiff’s application for approval of the funding agreement it is ordered:

1. that there be no order as to costs as between the plaintiff and the defendants;

2. that the liquidator’s costs be costs in the liquidation.

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:	Williams v CD Protective Services (No. 2) [2010] QSC 75
PARTIES:	JULIE WILLIAMS AS OFFICIAL LIQUIDATOR OF C & D GLOBAL PROTECTION PTY LTD (IN LIQUIDATION) (plaintiff) v C D PROTECTIVE SERVICES PTY LTD (first defendant) WHELAN, Craig Robert (second defendant) HELFERT, Joseph Aaron (third defendant)
FILE NO/S:	SC No 8075 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	22 January 2010
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	14 January 2010
JUDGE:	Margaret Wilson J
ORDER:	On the defendants’ application for security for costs it is ordered: 1. that the application be dismissed; 2. that the defendants pay the plaintiff’s costs of and incidental to the application to be assessed on the standard basis. On the defendants’ application to strike out all or part of the amended statement of claim it is ordered: 1. that the plaintiff pay the defendants’ costs of and incidental to the application to be assessed on the standard basis. On the plaintiff’s application for approval of the funding agreement it is ordered: 1. that there be no order as to costs as between the plaintiff and the defendants; 2. that the liquidator’s costs be costs in the liquidation.
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – PLAINTIFF – where defendants seek an order that plaintiff provide security for costs – where plaintiff sues as liquidator of C & D Global Protection Pty Ltd – where plaintiff is a natural person – where general policy is that an order for security for costs will not be made against a natural person, save in the circumstances in paragraphs (b), (c), (d), (e) and (f) of r 671 of the Uniform Civil Procedure Rules 1999 (Qld) – where defendants rely on r 671(h) that the justice of the case requires the making of an order for security for costs – whether s 671(h) has been satisfied Corporations Act 2001 (Cth), 477(2B) Uniform Civil Procedure Rules 1999 (Qld), r 671, r 672 Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Limited (2008) 67 ACSR 105, considered Jarbin Pty Ltd v Clutha Ltd (In liq) (2004) 180 FLR 393, considered Robson v Robson [2008] QCA 36, considered
COUNSEL:	C A Johnstone for the plaintiff. D Rangiah SC for the defendants.
SOLICITORS:	Minter Ellison Lawyers for the plaintiff. Piper Alderman Lawyers for the defendants.