Coastal Ventures (PPC) Pty Ltd v Pure Pleasure Cruises Pty Ltd & Nodnoc Pty Ltd [2001] QSC 190

State 11q02 Reporting C)l·lqo Bureau L { 6 ,e~ ;(, y (~" Queensland Governmen- --~1~ Department of Justicl! and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 128 of 2000 and Application No 818 of 2001 COASTAL VENTURES (PPC) PTY LTD (ACN 080 266 011) and PURE PLEASURE CRUISES PTY LTD REVISE[) (~~t~...:·:::·~::: ;:·~::3LJED s~~:t:; Applicant/Plaintiff (ACN 011 003 428) First Respondent/First Defendant and NODNOC PTY LTD (ACN 001 112 839) CAIRNS .. DATE 02/03/2001 JUDGMENT Second Respondent/Second Defendant 1 4Th Floor The Law Courts Complex. George Street, Brisbane Q. 4000. Telephone: {07) 3247 4360. Facsimile: (07) 3247 5532 -- 1 of 5 -- 02032001 T12-13/RGC M/T CNS2/2001 (Jones J) HIS HONOUR: This is an application by the first and second respondent for leave to seek an adjournment of the trial of the action in order that they may institute third party proceedings against their former solicitors who drew documents intended to be lease documents but which were found, in a decision of the Chief Justice, to be a hire purchase agreement. The action as now is one for a determination of whether a terminating payment, under the agreement, of $650,000 is characterised as a term payment. In the event that they are, the applicant, who I will for convenience call plaintiff, will be relieved of the burden of paying that sum. The first and second respondent, naturally enough, would wish to shift that financial burden to their solicitors. It is particularly important in their case because in order to buy the vessel which they sold to the plaintiff they entered into financial arrangements with the Australi~n Guarantee Corporation in which they continue to have a significant indebtedness. The issue as presently pleaded is a relatively straightforward one, and if it is determined against the plaintiff would not give rise to any liability on the part of the former solicitors to the first and second respondents. The usual basis on which third parties are joined in action is to preserve costs and to allow all issues to be litigated at the one time. It is to prevent the need to re-litigate issues 2 JUDGMENT 20 30 -- 2 of 5 -- 02032001 Tl2-13/RGC M/T CNS2/2001 (Jones J) that were dealt with in the primary action. If third party proceedings are instituted in a timely way then that is the expected advantage. If, however, third party proceedings are not sought to be instituted until very close to a fixed trial date of the primary issue then, of course, those advantages disappear to some extent. Cost that have been incurred in the preparation of the trial will be lost. Delays will be incurred. The reason for the delay in bringing this application has to be looked at in the context of the overall delay which, I should note, has to be observed to commence from October 1999 when Justice Cullinane gave certain directions. There were delays something of the order of seven months before the plaintiff's affidavits were filed in accordance with that direction. 10 The first and second respondent here also had a change of 20 solicitors in December 2000. It has to be observed that the present solicitors of the first and second defendant have acted diligently to bring this application on and observed also that the matter was put on the list of matters for trial against their objection. The prejudice which the plaintiff says it will suffer by reason of the delay is that it has been denied the opportunity to make an early pay-out of its responsibilities under the agreement which, in the light of the decision of the Chief 3 JUDGMENT 30 -- 3 of 5 -- 02032001 T12-13/RGC M/T CNS2/2001 (Jones J) Justice, I should call the hire purchase agreement. The plaintiff has sworn that the vessel which it runs, and the pontoon which is part of the business infrastructure, require repairs, and that the business needs to be the subject of complete refinancing. I expect that that refinancing would be much more likely if the plaintiff wins. But nonetheless it is a matter of prejudice to the plaintiff that it does not know what its financial position is and it ought to have the opportunity to have that determined speedily. If the third party proceedings were allowed to proceed the earliest possible trial date for all issues would be at the end of May. In my view, it would be unlikely, given the way these commercial matters proceed, that the matter would be ready at that sittings nor could one be sure that it would necessarily get a start. So, at the very least, the plaintiff would be delayed, if this application is allowed, by probably four to five months. The argument raised by the plaintiff which I find most compelling is the one that the determination of the primary issue may make the third party proceedings completely unnecessary. If the plaintiff loses that issue then there may be no basis upon which the first and second respondent would make a claim against its former solicitors. That fact, plus the fact that the lateness of the bringing of 20 this application necessarily results in a lot of costs being 30 4 JUDGMENT -- 4 of 5 -- 02032001 T12-13/RGC M/T CNS2/2001 (Jones J) thrown away, compels me to deny this application. I do not see that there will be a comparable prejudice to the first and second respondent by my dismissing the application. HIS HONOUR: My orders then will be that the application of the first and second respondents is dismissed. The proceedings S18 of 2001 will be adjourned to be heard at the 10 same time as the hearing of this action. 5 JUDGMENT -- 5 of 5 --