Anzon Projects No 4 Ltd v Merlin Access Systems Pty Ltd & Anor [1990] QSC 267

IN THE SUPREME COURT OF QUEENSLAND BETWEEN: ANZON PROJECTS NO.4 LIMITED MERLIN ACCESS SYSTEMS PTY. LTD. JOHN WALKER No. 3754 of 1989 Plaintiff First Defendant ,Cl ' , Second Defendant I EXTEMPORE REASONS: SENIOR MASTER HORTON Q.C. Delivered the Twenty-seventh day of July, 1990 This is an application by the defendants for security for costs in an action which has been listed as a commercial cause "A" and has been reviewed on a number of occasions before me. The matter has a somewhat unhappy history. Mr. Justice de Q Jersey listed it on 23rd November, 1989 and gave directions. On the 6th February, 1990 it came before me and these directions 0 were modified. On the 13th March, 1990 it came before me with Mr. McMurdo of Counsel appearing for the plaintiff and there being no appearance for the defendant. I ordered that the matter be adjourned for further review on the 26th April when yet again there was no appearance for the defendant. On that occasion, I ordered notwithstanding the absence of the defendant that the defendant make file and serve an affidavit of documents on or before 4 p.m. on 30th April, 1990 and I further ordered the defendants to supply further and better particulars on or before 4 p.m. on 30th April, 1990. I reserved the costs of that day. On the 1st May, 1990 the matter came before me when the defendant -- 1 of 6 -- ! 'I I I 0 2 was represented by Mr. Cremin, the present solicitors for the defendants. On that occasion the earlier orders not having been complied with, I ordered that the defendant make file and serve an affidavit of documents on or before 4 p.m. on 9th May, 1990 and to further give further and better particulars on or before the 11th May, 1990 and in default thereof I made what is known as a "guillotine" order. Finally, I ordered the defendant to pay the costs of the 1st May, 1990 and the costs reserved on the 26th April, 1990 to be taxed. Again in commercial causes, there was an appearance on the 17th May, 1990 on this occasion both parties being represented. Apparently, at last my earlier orders had been complied with and Q I ordered mutual inspection by the 30th May, 1990. On the.14th June, 1990 I reviewed the matter and on that occasion Mr. Richard Trotter of Counsel who appeared for the defendant, anticipated an application for leave to deliver interrogatories. On the 21 st June, 1990 I granted leave to the plaintiff to apply for further and better discovery on or before the 29th June, 1990. Mr. Bain Q of Counsel, who appears today for the plaintiff, informs me that it is not intended to bring such an application in view of the I 0 obligations imposed by the foreshadowed 6rder for delivery of witnesses' statements and general compliance with the practice direction. I also on that occasion granted leave to the defendant to apply for security for costs on or before 29th June, 1990 and on that occasion I ordered the defendant to pay the plaintiff's costs. On the 29th June, 1990 with both parties represented, I adjourned the application for an extension of time in which the defendants might seek security until 10 a.m. on Tuesday, 17th July, 1990. I directed that any material to be filed and served in support of an application for extension of time and the -- 2 of 6 -- I I I .1, C i. 0 3 application for security be filed and served on or before 4 p.m. on the 6th July, 1990 and I directed any material to be filed and served in response to the application be filed and served on or before 4 p.m. on 13th July, 1990 and I reserved costs. On the 17th July, 1990 Mr. Cuppaidge appeared· for the present applicant/defendants and sought an adjournment of the application for leave to extend time in which to bring the application for security. I refused that application and ordered the defendant to pay costs. On the 19th July, 1990 Mr. Trotter appeared for the present applicants and the application was adjourned to a date to be fixed. There is some confusion as to what in fact did occur on the 29th June, 1990. Mr. Cremin deposes to the fact that he "delivered a copy of his affidavit to the Registry". No such affidavit appears to have been filed nor any copies marked for legal service. That affidavit was now placed before me today and it seems that whatever occurred on 29th June, 1990 was consistent with the somewhat unhappy history of the defendants' prosecution Q of its defence in the matter. 0 The unfortunate history continues even up until the 25th July, 1990 when the present application which was purported to be served on the respondent/plaintiffs. However, it emerges from Miss Callinan's affidavit material that what in fact was served was an unsigned unsealed and .undated draft summons purporting to be returnable today. That defect appears to have been cured today but I have set out the history of this matter including the fact that I have on four occasions in recent history ordered the applicant/defendants to pay costs to illustrate that the history of this matter in so far as the prosecution of not only the defence but this application by the defendant leaves much to be desired. -- 3 of 6 -- 0 0 0 0 4 The history of this application commences with a letter of the 14th February, 1990 from solicitors for the defendant to solicitors for the plaintiff of the 14th February, 1990 foreshadowing an application for security for costs. Miss Callinan for the plaintiff responded by letter of 28th March, 1990 asking for a reasonable estimate by way of security. The matter was not raised again until the 22nd June, 1990 the day following the appearance before me when the applicant first in Court raised this matter. On the 22nd June, 1990 Miss Callinan in correspondence again raised the question of what the applicant/defendant regarded as a reasonable sum by way of security. On the 25th June, 1990 there was a telephone conversation between Miss Callinan and Mr. Cremin who advised that he was still waiting advice from cost assessors. On the 28th June, 1990 Mr. Cremin wrote to Morris, Fletcher & Cross giving an estimate of $57,741 and indicating that an application would be made on the 29th June, 1990 presumably in compliance with my order. How I might add one could expect to make an application on 29th June, 1990 when on that very day the application was filed and the material filed or attempted to be filed escapes me. It seems to be common between the parties that the plaintiff is a New Zealand company. There is no material which suggests that it is without assets either here or in New Zealand and of course I must bear in mind that New Zealand is a country in which judgments of this Court are enforceable by way of international agreement. Mr. Lyons of Queen's Counsel, who appears for the applicant, reminds me that he brings the application pursuant to o.33 r.14 and has directed me to English authorities including Aeronave Spa v. Westland Charters r.1971 1 W.L.R. at 1445. Those authorities -- 4 of 6 -- 'i I , I 'I I ! 0 5 suggest that in the case of a foreign plaintiff the exercise of judicial discretion in favour of the ordering of security is more readily obtained. Of course I am bound by the Full Court decision of Harpur v. Ariadne 1984 2 Q.R. 523 wherein at p.526 His Honour Mr. Justice Connolly reviewed the English authorities saying: "Whether the rationale of the old rule is still valid in relation to residence of the other Australian States, it is however still the law of Queensland that security may be required of a plaintiff resident anywhere out of the jurisdiction." However, at p.530 of the same judgment His Honour had this to say: "Where it came to foreign suitors, the rule was otherwise. A plaintiff ordinarily resident out of the jurisdiction having no assets within the jurisdiction which could be reached would be ordered to give security .... however, whereby legislation it was possible to enforce the judgment ofthe Court outside the jurisdiction as in the cases ofScotland and Northern Ireland, security was not ordered." I bear in mind that the estimate of $57,000 odd is one based upon the costs of two Counsel and for a number of days of hearing. Were I minded to grant security I would in any event Q confine the order to junior Counsel, this appearing to me to be a case which would not require the appearance of Queen's Counsel and confine the security up to the first day hearing. The application has been brought very late. The plaintiff is pressing to have the matters set down for trial and indeed it is only the exigencies of the commercial causes list that have prevented that occurring. The diligence of the defendant as I have outlined earlier leaves much to be desired and I bear in mind the fact that the defendant has on at least four occasions been ordered to pay the plaintiff's costs. Accordingly, for the reasons outlined above I refuse the application for security. I order the applicant/defendants to pay the costs of and incidental to the application for security for costs including -- 5 of 6 -- i : I iJ 0 0 0 0 6 reserved costs to be taxed. -- 6 of 6 --