Ahmed v Flightship Ground Effect Pty Ltd (in liq) & Ors [2004] QSC 13

jpcoTj QSC C(3> State Reporting Bureau Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority f the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION HELMAN J REVISED COPIES ISSUED State Reporting Bureau Date: 3 February, 2004 SHABEER AHMED Applicant and FLIGHTSHIP GROUND EFFECT PTY LTD First Respondent (IN LIQUIDATION) and GARY PETER DORAN and Second Respondents JOHN LETHBRIDGE GREIG BRISBANE . .DATE 26/01/2004 JUDGMENT MINING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal :ence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for 3ir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those tegories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- HIS HONOUR: This is an application on notice for orders that the plaintiff, Mr Ahmed, have leave to make this application pursuant to s.500(2) of the Corporations Act 2001, and for an interlocutory injunction that the defendants be restrained whether by themselves or their servants or agents or otherwise howsoever from selling, mortgaging, charging, or otherwise disposing of or parting with possession of two vessels specified in the application until 5 p.m. on 2 February 2004. The significance of that date is that it is contemplated that a further injunction be sought before the judge resident in Cairns on that day. The application rests upon rights which it is alleged on behalf of Mr Ahmed accrued to him under a shipbuilding agreement made on 16 February 2002 between the first defendant and a company referred to as "Sunland Transport PVT LTD (In Formation) or Nominees". Mr Ahmed executed the contract as "Principle For and Behalf of the Buyer," Sunland Transport PVT LTD (In Formation or Nominee). The shipbuilding agreement provided for the construction of the two vessels to which I have referred, and it is not in dispute between the parties that the full purchase price of the vessels has been received by the first defendant. The construction dates provided for in the shipbuilding agreement have passed, and the vessels are not near completion yet. The contract provided that certain conditions applied, including approvals and certification and those conditions have not yet been fulfilled. 26012004 T12/HMC9 M/T 2/2004 (Helman J) 1 10 30 50 2 ORDER 60 -- 2 of 5 -- On behalf of the defendants the application is resisted first on the ground that it has not been demonstrated that there is a serious question to be tried in this case. The first argument in support of that proposition is that Mr Ahmed has no interest, legal or equitable, in the two vessels. That is because, so it is argued, that Mr Ahmed plainly signed the agreement for and on behalf of the company Sunland Transport PVT Ltd to be formed and not on his own behalf. The word "Principal" appears below his signature on the agreement but it is argued that that word is no more than a description of Mr Ahmed's proposed role in the company to be formed. It may be noted that execution on behalf of the defendant was by a Mr John Leslie who is shown as "Managing Director" signing for and on behalf of that company. Nothing in the agreement, it is argued, suggests that Mr Ahmed is personally acquiring any of the benefits of the agreement. All of the obligations are expressly imposed on the manufacturer, i.e. the first defendant, or the buyer, i.e. Sunland Transport PVT Ltd. There is a guarantor referred to in the agreement but it is another company Sunland Travel PVT Ltd. That was as I have indicated the first argument advanced on behalf of the defendants in resisting this application in support of the proposition that there is no serious question to be tried. 26012004 T12/HMC9 M/T 2/2004 (Helman J) 1 10 20 30 40 50 3 ORDER 60 -- 3 of 5 -- 1 The second main argument advanced on behalf of the defendants is that although a constructive trust may arise where a person holding title to property is bound by a contract to dispose of an interest in the property to another who has given value, such a trust will arise only if the contract is one which is specifically enforceable; and various reasons were advanced on behalf of the defendants in support of the proposition that the shipbuilding agreement would not be specifically enforceable. It was said that damages would be an adequate remedy. The vessels are incomplete so that Court supervision would be required to complete the contract. An estimate has been put before me in evidence that a further $1,000,000 will be required to complete the vessels. Further, the contract is as I have mentioned conditional on various approvals and certification. On my assessment of the evidence before me I conclude that the defendants' first argument has merit: it appears to me that it has not been demonstrated sufficiently that there is a serious question to be tried that Mr Ahmed has an interest, legal or equitable, in the vessels. In addition the argument based on the submission that specific performance of the agreement would not be ordered has merit as well. In those circumstances I conclude that the application should be refused. I should add that it has been demonstrated also - I think convincingly - that the balance of convenience does not favour the granting of the application. Various arguments were 26012004 T12/HMC9 M/T 2/2004 (Helman J) 10 30 50 4 ORDER 60 -- 4 of 5 -- advanced in support of that proposition. I shall not go over them now. They are set out in Mr Freeburn' s outline which will be placed with the papers. Accordingly the application is dismissed. 26012004 T12/HMC9 M/T 2/2004 (Helman J) HIS HONOUR: I order that the applicant pay to the respondents their costs of and incidental to the application. 1 10 20 30 40 50 5 ORDER 60 -- 5 of 5 --