Bretts Ltd v Comar International Pty Ltd & Anor [1999] QSC 44

SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION FRYBERG J No 10081 of 1997 BRETTS LIMITED ACN 009 658 315 and i nEVISED COPIES ISSUED · State Reporting Bureau Date Q / J. / Plaintiff COMAR INTERNATIONAL PTY LTD (FORMERLY KNOWN AS WEINIG AUSTRALIA PTY LTD) ACN 001 809 703 First Defendant and MICHAEL WEINIG AUSTRALIA PTY LTD ACN 071 413 593 BRISBANE .. DATE 03/02/99 JUDGMENT I, J."l,1,1•• 't'1,n I .,,u , ......... , .. t• ............. c, ...... , 1, ... : .. 1 •..•. . "" ..i,,,,,, 1 Second Defendant [1999] QSC 44 -- 1 of 4 -- 030299 T10/IRK13 M/T 3814/99 & 3890/99 (Fryberg J) HIS HONOUR: This is an application by the first defendant for an order that the statement of claim be struck out as against it. The basis of the application is that the material in the affidavits clearly shows that no case is maintainable against the first defendant and that the continuation of the proceedings amounts to an abuse of process. The plaintiff's claim is against the defendants in the alternative. It is essentially a contractual claim and is brought in the alternative on the basis that an agreement was originally made with the first defendant for which the first defendant is said to be liable but, in the alternative, it is said that there was a novation of the agreement such that the second defendant became liable on it in place of the first defendant. The first defendant says that the material admitted by the plaintiff clearly shows that the alternative claim is the only one which is maintainable. The plaintiff denies this. The question is one which could be easily resolved at the trial when all matters are before the trial Judge. No material has been put forward by the applicant, the first defendant, to show that it would suffer any prejudice as a result of that course being followed. It is submitted that I ought to infer that the prejudice which would be suffered would be the incurring of a liability for 10 20 30 40 50 costs by the first defendant to its solicitors. There is, I suppose, also a potential liability for costs to the plaintiff 60 2 JUDGMENT -- 2 of 4 -- 030299 T10/IRK13 M/T 3814/99 & 3890/99 (Fryberg J) but it is difficult to see how that could arise unless judgment were given against the first defendant. The two defendants are, to some extent, associated companies. The second defendant is a joint venture company and one of the joint venturers is either the first defendant or persons associated with the first defendant. The defendants are represented by the one firm of solicitors and by the same counsel. No additional costs would, it seems, be incurred by having the issue resolved at trial rather than in Chambers and no evidence has been put before me as to the terms of the retainer given to the solicitors by the defendants. That is a matter peculiarly within the knowledge of the defendants. In those circumstances, I am not prepared to infer that the first defendant will, in any realistic sense, have to pay its solicitors funds if this issue goes to trial and it participates in the trial which could be avoided if the matter were resolved today. In my judgment the applicant has failed to demonstrate any sufficient reason for a Judge in Chambers to decide, in effect, a preliminary issue under the guise of an application to strike out. It does not seem to me that an abuse of process is clearly demonstrated on the evidence though I do not think I need embark upon the merits of whether or not an ironclad case is made out as the first defendant contends. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 4 -- 030299 T10/IRK13 M/T 3814/99 & 3890/99 (Fryberg J) In my judgment this is not an appropriate case for the intervention of the Chamber Judge and the application must be dismissed. HIS HONOUR: It seems to me that there is no reason demonstrated why the ordinary order should not follow. The application is dismissed with costs. 4 JUDGMENT 10 20 30 40 50 -- 4 of 4 --