Colinton Station Pty Ltd v Ambulabat Pty Ltd & Ors [2006] QDC 130

1 [2006] QDC 130 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 4740 of 2005 COLINTON STATION PTY LTD (ACN 092 877 953) formerly Dairy World Pty Ltd Plaintiff and AMBULABAT PTY LTD (ACN 103 101 855) and AMBULABAT PTY LTD as trustee for the Williams Family Trust and PAUL WILLIAMS First Defendant Second Defendant Third Defendant BRISBANE ..DATE 24/04/2006 ORDER CATCHWORDS: Claim for agistment fees already the subject of a counterclaim in proceedings started by the defendants - claim set aside under UCPR r 16(c) after statement of claim struck out as vexatious and an abuse under UCPR r 171 - indemnity costs awarded WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 4 -- 24042006 T03/KC20 M/T 1/2006 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The factual background to this proceeding is a confusing one arising out of agistment of cattle, presumably because they were drought-affected, with the plaintiff company. On the other side there are complex agency and trust arrangements to complicate things. Non-parties may have owned some of the relevant cattle. The Court hears that the cattle did not fare well on the plaintiff's property, indeed were dying, and that some Supreme Court proceeding was necessary to establish a means of extricating cattle still living so they could be restored to health by other arrangements. There is a claim in respect of loss of value of the cattle in action 3670 of 2004 in this Court. The defendant-applicants or a collection of parties representing the same interests are plaintiffs in that proceeding. A counterclaim was filed by the defendant there which is the present respondent plaintiff on or about the 13th of January 2005; the counterclaim sought to collect agistment fees, as I would interpret it, the name of the plaintiff has been changed from Dairy World Pty Ltd. The present action, 4740 of 2005, was commenced by the plaintiff on 21st of December 2005. It seeks, for all that appears, payment of the same agistment fees although there are considerable differences in the way in which the two claims have been formulated. It is a claim of just under $50,000 which was capable of being pursued in the Magistrates Court. -- 2 of 4 -- 24042006 T03/KC20 M/T 1/2006 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 The reaction of the defendants (applicants in the current interlocutory application) was that it was vexatious and an abuse of process of the Court to put them in the position of having to respond to the same claim in separate proceedings. That view was communicated in a letter of 27th of January 2006, Exhibit 2 to Mr Gray's affidavit. The letter required withdrawal of the new action by a nominated date, failing which it was said that the defendants would brief counsel to prepare a defence. The letter eliciting no response, that course, which I suppose was necessary to protect the defendants' situation, was ultimately followed and a defence was filed. On the 15th of February 2006 a rule 444 letter preliminary to this application was sent giving until the close of business on the 21st of February 2006 for a response. As in the case of the previous letter, there has not been any response - until the eve of this application, namely 21st of April 2006, when a fax was sent advising that the plaintiff "consents to the discontinuance of action BM4740 of 2005". Although the action should have been in the Magistrates Court the "M" is erroneous and should be "D". It thus appears that the plaintiff, which has not appeared today when called, belatedly accepts the defendants' point. Mr Tucker's outline of argument sets out authorities indicating that circumstances such as the present where a litigant faces multiple proceedings in respect of the same -- 3 of 4 -- 24042006 T03/KC20 M/T 1/2006 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 claim come within rule 171(d) and (e); the Court ought to act under those rules to strike out the statement of claim. This course doesn't get rid of the whole proceeding, which also ought to happen. Mr Tucker points to rule 16 paragraph (e) of which, in broad terms, authorises the Court to "set aside an originating process" without any expansion on the conditions which would justify it. In my opinion in the present circumstances would. There is an application for costs on an indemnity basis which I think is entitled to success from the time of the deadline fixed by the rule 444 letter, which means that it will cover the costs of this application today. The orders are as follows - 1. Strike out the statement of claim under rule 171(d) and (e). 2. Set aside the claim under rule 16(e). 3. Order that the plaintiff pay the defendant's costs of the proceeding to be assessed on the standard basis until the 21st of February 2006, thereafter on the indemnity basis. ----- -- 4 of 4 --