Equus Financial Services Ltd & Anor v Glangallan Investments Pty Ltd [1998] QSC 34

IN THE SUPREME COURT OF QUEENSLAND No. 1688 of 1991 BETWEEN: EQUUS FINANCIAL SERVICES LIMITED First Plaintiff AND: RURAL FINANCE PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) Second Plaintiff AND: GLENGALLAN INVESTMENTS PTY LTD Defendant No. 1689 of 1991 BETWEEN: EQUUS FINANCIAL SERVICES LIMITED Plaintiff AND: HGT INVESTMENTS PTY LTD Defendant No. 1690 of 1991 BETWEEN: EQUUS FINANCIAL SERVICES LIMITED Plaintiff AND: BARRY THORNTON Defendant No. 1691 of 1991 BETWEEN: EQUUS FINANCIAL SERVICES LIMITED Plaintiff AND: BRIAN JAMES PRENDERGAST Defendant -- 1 of 6 -- 2 No. 1692 of 1991 BETWEEN: AND: EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) CYRIL WILLIAM ANDERSON ORDER - MOYNIHAN J. Reasons for order dated 20 March 1998 Published 20 March 1998 Plaintiff Defendant For reasons which I published on 5 February 1998, I gave the plaintiff leave to proceed and to join Rural as a plaintiff in each of the actions from 1689 to 1692 of 1991, to make consequential amendments to the pleadings ordered the actions to be heard together and dealt with other matters. I provided for written submissions as to the form of the orders and directions and as to costs. Those submissions have been received and I order in terms of the initialled drafts to take effect from the date of these reasons. I should make some observations in respect of some of the orders. CONSOLIDATION OR HEARD TOGETHER The draft orders submitted on behalf of the defendants provided for the consolidation of the actions. Although there were earlier summonses seeking consolidation, those I dealt with sought that the actions be heard together and the submissions before me were directed to that relief rather than consolidation. The merits and demerits of consolidation as distinct from joinder were not canvassed before me, and the plaintiff maintains that it seeks an order that the actions be heard together. In those circumstances I am not minded to provide for consolidation rather than joinder. -- 2 of 6 -- 3 COSTS Leave to Proceed The defendants seek an order that the plaintiff pay their costs on the application for leave to proceed. It may be that as a general proposition a successful plaintiff is ordered to pay the defendants' costs of resisting the application for leave. There are, however, considerations in this case, canvassed in the reasons published on 5 February which justifY the order made in the initialled draft. These include the defendants' failure on the issue they raised that the plaintiff had effectively abandoned the actions. They also include the conclusions in the reasons of 5 February to the effect that there was tacit acceptance ifnot agreement that the issues relating to the validity of Rural' s assignment be determined in the Glengallan action and as to the course to be followed in the other actions, that neither party was free of responsibility for the unsatisfactory progress of the actions and neither advanced particularly satisfactory explanations for its role in the progress. 18 October 1997 Hearing The circumstances in which this occurred are canvassed in the reasons of 5 December as is the defendants' failure to persuade me that the plaintiff had abandoned the action. The defendants raised the issue but failed on it. They are not entitled to the costs of the appearance. Joinder It will be obvious that the order as to the costs of joinder and its consequences, mirror the order made on 24 January 1995 in the Glengallan action and it is, in my view, appropriate to make the same order here. Other Amendments to the Statement of Claim This was not contentious before me and any costs involved or thrown away will be overtaken or subsumed by other amendments and events. -- 3 of 6 -- 4 Directions I have not made orders permitting interrogatories. There are no signs that this is a case where they are likely to be necessary or even useful. If considerations emerge to suggest they are, an application can be made in the usual way. The intent of the direction is to facilitate the speedy and effective resolution of the matter and to avoid the unnecessary duplication of effort and material and they should be construed to that end. -- 4 of 6 -- \ ~.. Sc IN THE SUPREME COURT OF QUEENSLAND No. 1688 of 1991 BETWEEN: EQUUS FINANCIAL SERVICES LIMITED First Plaintiff AND: RURAL FINANCE PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) Second Plaintiff AND: GLENGALLAN INVESTMENTS PTY LTD Defendant ORDER JUDGE - MOYNIHAN J. Date of order 20 March 1998 It is ordered that:- 1. Actions 1688, 1689, 1690, 1691 and 1692 of 1991 be heard and tried together. 2. Evidence received in anyone of the actions be evidence in any or all of the others to the extent to which it is relevant to the issues in that action. 3. The defendants deliver an amended defence and counterclaim (if any) within 10 days of the date of this order. 4. The plaintiffs deliver an amended reply and answer within 10 days of delivery of the amended defence and counterclaim. 5. Any particulars of amended pleadings are to be sought within 10 days of the close of pleadings and supplied within 10 days of receipt of the request. 6. Discovery and inspection is to be concluded within 21 days of the close of pleadings or the supply of particulars, whichever is the later. 7. The parties are to certifY that the matter is ready for trial and file the certificate within 7 days of the completion of the steps in the preceding parts of this order. -- 5 of 6 -- 2 8. Unless the amounts are agreed sooner, 21 days prior to the date set for trial the plaintiff is to file and serve an affidavit by an appropriate person of each defendants indebtedness as at the date of the trial, containing succinct particulars of the basis of the calculation and 7 days later the defendant is to notify whether the deponent is required for cross- examination. In the event of no notification, the affidavit shall constitute the evidence without the need to call the witness. In the event of notification, the affidavit shall constitute the witnesses' evidence -in-chief. 9. 10 days prior to the trial the parties are to lodge a single consolidated final bundle of documents in compliance with Practice Direction 15 of 1996, Annexure B, paragraph 8. The bundle should identify the documents common to all actions and those relating to particular actions in some convenient way. 10. There is to be strict compliance with the terms of this order as to time. 11. Liberty to apply. 12. The costs of this summons is to be each parties' costs in the cause. 13. The summons is adjourned to a date to be fixed. -- 6 of 6 --