BTU Group v Wong & Anor [1999] QSC 395

( State Reporting Bureau 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 MUIR J Writ No 7659 of 1998 BTU GROUP and MARJORIE WONG and MICHAEL BERNARD SHORE and NOBLE PROMOTIONS PTY. LTD. ACN 058 360 384 and PETER RAYMOND SMITH and COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 BRISBANE .. DATE 21/09/99 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date,)s/ (0 / First Plaintiff Second Plaintiff Third Plaintiff First Defendant Second Defendant Third Defendant ·Itll Floor, The Law Courts, Gcorgc Street, Brish:llle, Q. 400() Telephone: (07) 3247 43(iO Fax: (07) 3247 5532 -- 1 of 3 -- 21099~ T4/FLC4 M/T 4579/99 (Muir J) HIS HONOUR: It seems to me that this application proceeds at least in part on a false premise. An order was made on 1 July 1999 that the plainti~fs give security for costs by payment into Court of $12,000. It was further ordered that the proceedings be stayed until such security was provided. The security was not provided. The applicant then wrote to the plaintiff respondents on 31 August 1999 alleging a failure to comply with the order. Of course there was no failure to comply with the order in relation to th~ provision of security. The order carried with it the consequence of failure to give security within the time required and that was that the action be stayed. What the applicant is seeking to do is to obtain another 10 c; right namely the termination of the action in the event of 30 failure to provide security. The order also required the provision of further and better particulars. They were not provided within the time stipulated but have been provided since the making of the application. The respondent takes some technical points alleging not compliance with rules 374(3), 443 and 444. HIS HONOUR: The other matter that is worth mentioning about this application is that the letter of 31 August required provision of security by 7 September 1999 in circumstances in which there are parties resident out of the jurisdiction. That demand strikes me as somewhat adventurous. I am not prepared to make the orders sought but I cannot see why a 2 JUDGMENT ---------- 01 40 U! 50 60 -- 2 of 3 -- 210999 T4/FLC4 M/T 4579/99 (Muir J) litigant in the position of this applicant has to sit around and have the prospect of a claim being resurrected at some time in the future at least within two years of the last step in the action. What I propose to do is rather than dismiss the application to adjourn it to a date to be fixed so that the applicant can after further notice complying with the rules reactivate it. As for the question of costs an application was made necessary through a breach by the plaintiff of its obligation to provide further and better particulars. In those circumstances it seems to me that although the applicant has not been entirely successful an appropriate order would be that the applicant's costs be its costs in the cause. HIS HONOUR: I order that the application be adjourned to a date to be fixed and that the applicant's costs of and incidental to the application be the applicant's costs in the cause. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 3 --