Collins v Jesajan Pty Ltd [1993] QSC 179

-~· .~J¥7r ~,o ..• state Rep6itingBureau 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 MOYNIHAN J. No 177 of 1992 JOHN COLLINS and JESAJAN PTY LTD BRISBANE .. DATE 01/06/93 JUDGMENT RE ,t•r.::r.::o ,...,,...,s:r:::c- '"~~o I '• h .... :._. J \..···-·. ;o,._,;. .·,.)·~}J~!J I . St<:.ta RcpcrEr.g 8t.:renu DataJ.(, I h I 3 Plaintiff Defendant 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 5 -- cml/sgb 010693 (Moynihan J) HIS HONOUR: This matter comes before me as an application to set aside an injunction granted on 2 December 1992 in respect of an agreement for lease of 9 September of that year of a vessel known as the Tippler's Flyer on terms and conditions set out in the agreement for lease. The matter has been the subject of a number of applications .. The . proceedings before me were not: particularly assisted 10 by the fact that both parties appeared without legal representation. It is p·la:ih that there are fntractable differences and issu~e; of credit in respect of two different perceptions or accounts of events. That situation is complicated by the fact that the (~) affidavit filed in support of the application contains a great () deal of material, particularly bearing on the issues of credibility 1 which is hearsay, and in other respects contains 30 assertions as to, for example, the legal consequence of documents which are not in evidence. The position, on the other side, is perhaps marginally but not more than marginally advanced from that. In other words neither s±de is to be particularly noted for its appreciation of the procedural, 40 evidentiary and ultimately legal implications of these proceedings. The Notice of Motion with which I am dealing seeks, as an alternative to the setting aside of the injunction, that the 50 respondent be required to carry out a number of obligations pursuant to the agreement of 9 September. One of these relates to the provision of regular daily services to an island resort. 2. 60 () -- 2 of 5 -- cml/sgb 010693 (Moynihan J) The respondent contends that he's prepared to provide the services. It is plain, leaving aside difficulties of admissibility for the minute, that there is a contentious situation as to whether he is or not. There is also an 10 application made for the respondent to the application to arrange an annual inspection and renewal of survey in respect of the vessel, the subject of the agreement for lease, and there is also application for an officer of the Court to be appointed to supervise compliance and for security for costs. 20 Given the unsatisfactory state of the material, and the positions of contention to which I have referred, I think it is impossible to proceed to determine on the material in the present circumstances whether the injunction ought to be lifted. 30 As to the requirement of a provision for daily service, lat·e in· ·the cour,se · oL- the p·roceedings the respondent sought • :-to<: file:-' a "-notice ._ of - mot·ion. s·eeking~ ~: re·lief - inc:ludirig as- .. to - the use- of the 40 vesse1. __ I simply , declined'.·-' leave to __ file that notice of motion and consequently decline to deal with it, but apart from anything else it made its appearance far too late in the day within terms of the requirements of filing and serving to justify it being considered. 50 It seems to me that unless the parties, facilitated if necessary by some independent mediator, can reach some resolution of the differences between them, the only way that the differences can be resolved is by the matter proceeding to 60 3 -- 3 of 5 -- ----------- ------------ cml/sgb 010693 ~-~oynihan J) trial :··:It has already been cer:tified for speedy trial, the timetable being yet to run which would permit it to be entered for trial. I really am not ·persuaded that this Court is in a position· -to li·ft ··the· i:h]"unc-tion ·_ on· the. materia-l 10 as it pre·sently stands. That .i.s not the same thing as saying that the 'applicant might not ultimately by appropriate means make out a case as to that effect. It simply cannot be done on the material, as I view it, for reasons which I have endeavoured to mention. The provision __ .of a regular daily service now involves a third party, there being a suggestion as distinct from evidence that the plaintiff's interest in the resort has been disposed of to a third party. The other matters in-respect of the specific provisions of the agreement~of 9 September seem to me to be a pretty peripheral concern and subject to the same sort of considerations. So far·as the-provisions of clause 2(e) are concerned, I should have thought that there was no reason why the lessee should not be able to have advantage of them. So far as the annual inspection and renewal of survey are concerned then, I think that an appropriate certification or a copy of the survey provided to the applicant prior to the expiration of the time for that to be carried out is something which should be done. I decline to make any provision as to an officer of the Court supervising the matter. There is really nothing in the material that seems to me to be directed to advancing the application for security for costs. So far as the costs of these proceedings are concerned then, in the light of the 4 20 30 40 50 60 CJ 0 0 -- 4 of 5 -- cml/sgb 010693 (Moynihan J) consideration which I have mentioned I think that they should be reserved to the trial. It seems to me that it is extremely unlikely that interlocutory applications~ unless they are of course 10 necessary, will much advance the resolution of these proceedings which, as I say, if they can't be by agreement will have to be by trial, and the Court has done all it can to facilitate that at as soon a date as possible. 20 The outcome of the proceedings, therefore, seem to me to be that the applicant should be entitled to the pursuance of its . rights in terms of clause 2(e) of the agreement of 9 September, which I note gives it an access for a specific and specified purpose. The respondent should provide evidence 30 of the annual inspectiori and renewal of survey having been carried out and relevant fees paid prior to 24 June next. I otherwise adjourn the notice of motion to a date to be fixed and reserve the question of costs. 40 ( ~ 50 60 5 -- 5 of 5 --