Cofp Pty Ltd v Dhanush Infotech Pty Ltd [2016] QDC 105

DISTRICT COURT OF QUEENSLAND CITATION: Cofp Pty ltd -v- Dhanush Infotech Pty Ltd [2016] QDC 105 PARTIES: COFP PTY LTD (respondent-plaintiff) and DHANUSH INFOTECH PTY LTD (applicant-defendant) FILE NO/S: 536 of 2016 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 6 May 2016 (Ex tempore) DELIVERED AT: Brisbane HEARING DATE: 6 May 2016 JUDGE: Jones DCJ ORDER: 1. The application for review filed on 15 February 2016 be dismissed. 2. The statement of claim filed 5 April 2016 be struck out. APPEARANCES: S.A. Gow for the applicant-defendant as director of Dhanush Infotech Pty Ltd D Munro for the respondent-plaintiff [1] HIS HONOUR: I am concerned here with an application for the following relief: “the proceedings be dismissed and that the plaintiff pay the defendant’s cost as taxed if not agreed.” [2] It was agreed during discussion with the representative of the defendant that it would serve no good purpose to make a cost order in the event that the application was successful. I agree that this court should avoid making orders which have virtually no prospects of being complied with. [3] It was not identified on which part of the Uniform Civil Procedure Rules, or indeed any other basis, that the applicant was relying on for the relief sought, but during -- 1 of 6 -- 2 discussion with Mr Gow, who appeared for the defendant, it was accepted that the relief sought was essentially that prescribed for in rule 171 of the Uniform Civil Procedure Rules 1999, namely, that the statement of claim be struck out. Primarily on the grounds that it discloses no reasonable cause of action and is otherwise frivolous or vexatious or an abuse of process of the court. [4] Four grounds were relied on by the applicant, but before I deal with those, I should say that Mr Gow appeared for the applicant-defendant. Mr Gow has a law degree but he does not practise law. He appears here in the capacity of a director of the applicant company. [5] Mr Munro appeared on behalf of the plaintiff-respondent. When I use the word appear, I do so guardedly. As I said, the applicant-defendant relies, essentially, on four grounds to support its application, the first that Mr Munro was not a director of the plaintiff and had not otherwise revealed in what, if any, capacity he would or could act on behalf of the plaintiff company. The second ground was to the effect that the matters that Mr Munro seeks to agitate, that is, the cause of action that he seeks to agitate, is essentially the same as that that was dealt with by Judge Griffin some time ago and also by the Court of Appeal. The third ground, and indeed, the fourth ground, really refer to the personal circumstances of the plaintiff, particularly in respect of costs, and I do not think it is necessary to go into those any further other than to observe that the plaintiff company has not carried out business for some considerable time and, as I understand it from what Mr Munro said, would but for the ongoing litigation, be likely to be deregistered. [6] On a number of occasions, I asked Mr Munro in what capacity he was appearing today, whether it be as director of the plaintiff company or in some other capacity. He was not able to explain to me exactly in what capacity he did appear. When asked directly whether he was a director of the plaintiff company, he told me that he did not know. I find that a difficult proposition to accept, when it would appear that Mr Munro, effectively, is the sole beneficiary of the plaintiff company in that he controls another company, Action Industries Proprietary Limited, which is the sole shareholder of the plaintiff company. [7] The historical company extracts reveal that Mr Munro ceased to be a director of the plaintiff company on the 3rd of February 2016. On the same date, by reference to -- 2 of 6 -- 3 exhibit 1, Mr Munro also ceased to be a director of the other company, Action Industries Proprietary Limited. At no time did Mr Munro dispute the accuracy of those company extracts, but simply maintained that he was not familiar with the federal law or the company law and therefore did not know whether or not he was a director. [8] On 1 July 2011, the plaintiff company brought proceedings against the defendant, claiming as follows: the sum of $61,561.64 as money due and owing, the sum of $78,438.36 as damages for breach of contract. Other consequential relief was also sought. [9] The statement of claim alleged a contract, partly oral and partly in writing, which was entered into between the parties on or about 15 February 2010. It was alleged that the plaintiff would hire the services of Mr Munro as a servant or agent of the defendant, also, that Mr Munro would be employed as a chief executive officer of a company yet to be formed. It was also alleged that in consideration of the services provided by Mr Munro, the defendant would pay to the plaintiff company the sum of $40,000 for the use of its intellectual property and also the defendant company was to pay to the plaintiff company the sum of $140,000 for the services provided by Mr Munro pursuant to that contract. It then goes on to allege that Mr Munro carried out the works prescribed in the alleged contract. [10] The matter came before Judge Griffin SC, who has since retired. Following submissions from both parties, on 5 February 2014, his Honour ordered that the plaintiff’s claim be dismissed. Further consequential orders were also made, including that the plaintiff was to pay the defendant’s cost of the application. [11] Following that decision, the plaintiff company appealed to the Court of Appeal. The grounds identified were: Judge Griffin has erred in his decision to grant the application for summary judgment as DSN Murphy (Murphy) in his sworn affidavit has falsely defined a signed service agreement, when in fact, it is an outsource agreement and Mr Kidston relentlessly pursued an extremely unsound argument based on this false definition and has seriously misled Judge Griffin into believing an outsource agreement was a service contract when it clearly was not. This -- 3 of 6 -- 4 outsource agreement has no consequence whatsoever to the application; wrong plaintiff, wrong defendant. A signed service agreement does not exist. [12] That appeal was dismissed. [13] The Court of Appeal decision is in the published reasons [2015] QCA 1. The leading judgment was given by Justice of Appeal Holmes as she then was. In paragraph 1, it was observed: The appellant brought proceedings against the respondent for moneys owed for services rendered and damages for breach of contract. Those proceedings were defended on the basis that any agreement had been made not with the respondent, but with another company, Dhanush Academy of Technology and Management Pty Ltd (DATAM). The respondent succeeded in obtaining summary judgment, against which this appeal is now brought. The appellant’s sole director, Mr David Munro, appeared on its behalf at first instance and here. [14] In paragraph 19, reference was made to the reasons of the primary judge in giving summary judgment in favour of the defendant. The primary judge said: It seems to me that sympathetic as one might be to Mr Munro and the view that he has formed about the way he was treated by those natural persons who represented a constellation of companies, the proceedings today appear to me to be proceedings in which the plaintiff has, by reference to the documents which are common ground, indicate that the wrong defendant has been brought to court in respect of those proceedings. In that regard, I propose to make an order that bring (sic) these proceedings to an end. Some (summary) judgment will be given for the defendant. [15] In paragraph 26, the Court of Appeal observed: Mr Munro’s (and consequently the Appellant’s) primary difficulty is that, whatever one makes of the formal agreements, he cannot point to any evidence of an agreement with the Respondent. [16] And in paragraph 30, the Court of Appeal concluded: -- 4 of 6 -- 5 Mr Munro may well believe, as he deposed in his affidavit for the purposes of the summary judgment hearing, that he had on behalf of the Appellant made an agreement with the Respondent, but there is a complete absence of any evidence on which a Court could objectively conclude that such an agreement existed. The formal agreements indicate that any contract was with DATAM, not the Respondent. In those circumstances, the Appellant has no prospect of succeeding in the action it had brought against the Respondent, and a trial would have been fruitless. The primary judge made no error in giving summary judgment for the Respondent under rule 293(2) of the Uniform Civil Procedure Rules 1999. [17] When Mr Munro was asked, if he was dissatisfied with that decision why didn’t he appeal it to the High Court. He told me that he was not aware that he could take that course of action. What has occurred subsequently is that on 15 February 2016, Mr Munro purportedly on behalf of the plaintiff company filed what is described as an “application for review”. The application sought “a review of order J Griffin 2364/11 based on several instances of fraud, forgery and perjury ...”. The relief sought included an order to revoke, rescind and set aside the order of Judge Griffin and that a trial date be set as quickly as practicable. In the plaintiff’s statement of claim the relief sought was the payment of $140,000 by the defendant for work done and breach of contract. The relief also sought the return of a security deposit of $50,000 allegedly paid by the plaintiff but was owing to Mr Munro. [18] It is to be noted that while the $40,000 for the use of intellectual property claimed in the original statement of claim no longer seems to be being pursued, the sum of $140,000 sought in the statement of claim filed on 5 April 2016 repeats essentially what was pleaded in paragraph 3(d) of the original statement of claim. As can be seen, the relief sought is primarily based on money owed for work done and/or owed to the plaintiff as damages for breach of contract. [19] The statement of claim asserts a number of allegations, in particular, a number of allegations directed towards allegations of fraud and other deceit. Put simply, the allegations of fact pleaded in the statement of claim cannot ground in any sensible way the relief sought. In addition, reference is made to various parties, including one Neville Smith and one Mark Summerville. Mr Munro made no attempt – and it escapes me how either of those gentlemen could be directly involved in the actions -- 5 of 6 -- 6 against the defendant. Those names seem to be used in some form of scattergun way associated with the various allegations of fraud. To put it bluntly, the statement of claim is fundamentally flawed for the reason that I have already given. The allegations made could in no way sensibly ground a cause of action for the relief sought. Additionally, the pleadings could only otherwise be described as being scandalous and embarrassing. [20] I would also add that however Mr Munro attempted to address the issue, at the end of the day, it seems to me that he is yet again seeking to essentially agitate the same matter that was agitated before Judge Griffin and before the Court of Appeal. It seems to me that Mr Munro was, in effect, contending that I ought revisit the whole proceeding, or at least list the matter for trial to allow Mr Munro to agitate all of his allegations of fraud, perjury and other misconduct. [21] Accepting for the moment that fraud or some other misconduct did exist – and I note immediately that I do not accept on the material before me that there is any evidence establishing that – but even accepting that some of those allegations or, indeed, all of those allegations are able to be established, it does still not get around the fact that the plaintiff company is seeking essentially the same relief based on the same work and/or breach of contract that was alleged in the initial statement of claim and which was found to be doomed to fail because it had been commenced against the wrong defendant. [22] For the reasons given, I consider that the appropriate orders that I should make today are that the application for review filed on 15 February 2016 ought to be dismissed and that the statement of claim filed 5 April 2016 should be struck out. -- 6 of 6 --