Bain & Gasteen v Harris & Anor [1995] QSC 45

~c 15-f OLJ-5 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 WHITE J No 4407 of 1980 DAVID JAMES BAIN and CHRISTOPHER HARDY GASTEEN and HUBERT IAN HARRIS and HARRIS NOMINEES PTY LTD BRISBANE .. DATE 1 5/02/95 JUDGMENT l REVISED CCPIES iSSUED I State Repornng Bureau IDateJ •.Z, I ~ 1 '7' (" I Plaintiffs First Defendant Second Defendant 4th Floor. The Law Courts. George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: {07) 227 5532 -- 1 of 5 -- 1 50 2 9 5 ( \'1h i t e J ) HER HONOUR: Except for the ma~ters of the value of work in progress and debtors as at 1 July 1973, and the taking of accounts generally which I order to be forever stayed, I dismiss the summons and I publish my reasons. I also vacate the order made byES Williams J on 19 December 1980, that this matter be certified as an action which ought to be tried 10 speedily. Now, what I have done is prepare some notes for directions, and I thought perhaps we could discuss those rather than make them orders in the judgment at this stage. It may be that you might need to have a look at the reasons for judgment before you can get too far, but I have tried to identify some issues. That is a~l these are, simply ~otes for directions, nothing more than that, so if you would just like to take a moment to have a look at them. It looks as though the second page has actually not come out at the bottom: "by the nominee of the president of the Law Society." MR CARRIGAN: Your Honour was referring to the second page of----- HER HONOUR: The directions. I am just suggesting have a look at the directions, Mr Carrigan. Yes, Mr Dunning? MR DUNNING: Thank you, Your Eonour. Your Honour, I have had a very quick look at the directions and we are most grateful for the assistance Your Honour is offering. I really think I need to read Your Honour's judgment. HER HONOUR: Yes. I thought you might need to do that. MR DUNNING: And really we have got to then make a decision as to----- HER HONOUR: What way you want to go? MR DUNNING: Yes. HER HONOUR: Yes. I am sure that is right. These literally are just aids. MR DUNNING: Yes. HER HONOUR: Not to be taken as part of the reasons for judgment at all, but I thought it was easier perhaps to identify the way I was thinking tentatively at this stage. MR DUNNING: That is fabulous, Your Honour. It also gives us something to start with. 2 JUDGMENT 20 30 40 50 60 -- 2 of 5 -- 150295 (White J) HER HONOUR: Because they have just been run off, for some reason the last few lines got left out, but if you would just like to add on "by the nominee of the President of the Law Society in an effort to narrow the issues or to resolve the matter completely.'' Now, there is a review listing before the senior Judge administrator, I think for 2 March in this matter, as I recall. I spoke to him this morning about that. It seems to me that you may not need to take up that review in view of proposals that I have advanced here. I have again discussed that with him and I can easily vacate that review date on the second, but he wishes to keep an eye on this matter and he wishes to have it under his general management supervision if it is to continue in the Court. He will make draconian directions, I might add, which I have not included here if something along these lines does not occur fairly briskly. I am mentioning that because that is the result of my conversations with him. In other words, I am not to manage it. He is. MR DUNNING: That is wise, because Your Honour has the particular misfortune of being, along with Mr Justice Mackenzie, it seems, one of only two Judges of this Court who can hear the matter if it ultimately has to go to trial. HER HONOUR: I am sure they just lack moral fibre, the others. Anyway, I sincerely hope that it does not come to that. There may be an issue of law, it occurred to me, that the question - and I am not sure of the extent to which ruling that the value of the business of Ian Harris and Co as at 1 July 1973 impacts upon the capital for good will question which I have allowed to remain because it has been a live issue throughout, which is really reason why I have disallowed partnership accounts generally, because it is too long ago. It may well be that that issue which you raised is something that can be set down in Chambers as a point of law to be resolved, if it cannot be resolved any other way without the full litigation. MR DUNNING: That sounds very sensible, Your Honour. 10 20 30 HER HONOUR: So there are lots of options that can be dealt 40 with. What I would have thought none of the parties would want is a trial which is embarrassing for them, I think, in a professional sense. It never does anyone any good to have their names in the Courier-Mail, practising solicitors, and of course the cost is enormous. MR DUNNING: We obviously do not want that, Your Honour. HER HONOUR: No. I am sure neither side does, and I should say that although I have expressed a certain unease at the way so the matter has been handled, on the other hand there has been lack of invective which I find in correspondence between solicitors quite often, missing here, and that gives one hope for the resolution of the matter, one would have thought. Mr Carrigan, would you like to do that then? MR CARRIGAN: Yes. HER HONOUR: If you want to have a look at it and discuss it with your clients and see what they would like to do, but I w 3 JUDGMENT -- 3 of 5 -- 150295 (White J) would like it brought back on before me to settle it as soon as may be. MR CARRIGAN: Yes. HER HONOUR: Have you got any suggestions about them? MR CARRIGAN: Your Honour, not at the moment. Unfortunately Mr Harris has gone on holidays, which was planned. He and his wife left, I think, at the end of last week and will not be back until the end of the next week, but I imagine we would be lO able to be in contact with him and----- HER HONOUR: If you can be in contact with him, then be in contact with him. Facsimile - send him proposed directions, or telephone him and discuss it. I would like to bring it on for mention and settlement of the directions next week actually, Mr Carrigan. MR CARRIGAN: Yes. Notwithstanding the fact that he is away, I know he was conscious of the fact that there was likely to be a decision made while he was absent, and I am sure that we can be in contact with him and certainly bring it back before Friday of next week. HER HONOUR: Yes. That is, in fact, what I would propose should happen. I am actually in the Court of Appeal next week, so it will have to be before Court at some stage, perhaps quarter past 9 or half past 9 one morning. MR CARRIGAN: Yes. HER HONOUR: Is that satisfactory, Mr Dunning, to do that? MR DUNNING: Yes. I am in a trial at the moment, Your Honour, so that would be very satisfactory. HER HONOUR: If you can agree on directions they can be faxed over and I will have a look at them and then you may not need to come over. I would be surprised if you managed that this time, but if you do I am quite happy with that course. If not, then perhaps I could list it for quarter past 9 on Friday of next week. The 24th, is it? Probably in this Court, but you might just need to have a look at the law list to see if that is the case. The chamber Judge might be using the Court at that time. MR CARRIGAN: Your Honour, there is also, I think, the nasty question of costs of the summons which has not been dealt with. 4 JUDGMENT 20 30 40 50 60 -- 4 of 5 -- 150295 (White J) HER HONOUR: It may be that t~e ultimate result is to reserve the costs in any event, but for the time being I reserve the costs. Is that satisfactory to you, Mr Dunning? MR DUNNING: It is, Your Honour, yes. HER HONOUR: Anything else? MR DUNNING: No, Your Honour. HER HONOUR: I do hope that your good endeavours, together with your clients, will help this matter to be moved ahead. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 5 --