DJ Builders & Son Pty Ltd (in liq), in the matter of DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: REEVES J
• Judgment Date: 07 February 2020
• Neutral Citation: [2020] FCA 77
• Date: 07 February 2020

FEDERAL COURT OF AUSTRALIA

DJ Builders & Son Pty Ltd (in liq), in the matter of DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission (No 2)
[2020] FCA 77

File number:	QUD 361 of 2019
Judge:	REEVES J
Date of judgment:	7 February 2020
Catchwords:	PRACTICE AND PROCEDURE – form of orders
Cases cited:	Australian Capital Territory Commissioner for Revenue v Slaven (2009) 178 FCR 334; [2009] FCA 744 Carpenter v Pioneer Park Pty Ltd (2008) 71 NSWLR 577; [2008] NSWSC 551 DJ Builders & Son Pty Ltd (in liq), in the matter of DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission [2019] FCA 2018 El-Saafin & Anor v Franek & Ors (No 2) [2018] VSC 683
Date of hearing:	Determined on the papers
Date of last submissions:	20 December 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	16
Counsel for the First Applicant:	Mr AF Messina
Solicitor for the First Applicant:	Scoglio Law
Solicitor for the Second Applicant:	Mr S Ivantsoff of EQ Legal
Counsel for the Respondent:	Mr SE Seefeld

ORDERS

		QUD 361 of 2019
IN THE MATTER OF DJ BUILDERS & SON PTY LIMITED ACN 119 020 049 (IN LIQUIDATION)
BETWEEN:	DJ BUILDERS & SON PTY LIMITED ACN 119 020 049 (IN LIQUIDATION) First Applicant ; FORWARD PACK PTY LIMITED ACN 120 534 090 Second Applicant
AND:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION Respondent

JUDGE:	REEVES J
DATE OF ORDER:	7 February 2020

THE COURT ORDERS THAT:

1. Pursuant to r 1.36 of the Federal Court Rules 2011 (Cth), these Orders and the Reasons for judgment in support of these Orders are made and published from Chambers.

2. Subject to the second applicant and Lawrence Doré complying with Orders 3 and 4 below, leave is granted to the second applicant nunc pro tunc to bring and take responsibility for this proceeding on behalf of the first applicant.

3. The second applicant and Lawrence Doré pay and bear (and indemnify the first applicant against) all costs, charges and expenses (including remuneration) of and incidental to the bringing and continuation of this proceeding brought by the second applicant on behalf of the first applicant.

4. The second applicant and Lawrence Doré pay into court the sum of $125,000.00 within 30 days of the order of this Court as security for the indemnity in Order 3 above (the Security).

5. The Security is:

   1. held by way of security for any further adverse costs order that may be made against the first applicant or the liquidator for the first applicant;

   2. not to be released other than pursuant to the express written agreement of the liquidator of the first applicant and the second applicant or pursuant to an order of the Court.

6. To the extent that the liquidator of the first applicant considers that further security for the costs referred to in Order 5(a) above is required:

   1. the parties are to consult and attempt to agree upon an appropriate quantum and form of security on a stage-by-stage basis in relation to the conduct of the proceeding; and

   2. to the extent that the parties cannot agree on the quantum or form of security, the liquidator has liberty to apply to the Court.

7. The applicants are to file and serve affidavits on which they rely on or before 28 February 2020.

8. The matter is adjourned for a further case management hearing at 9.30 am on 26 March 2020.

9. The second applicant and Lawrence Doré pay the first applicant’s costs of the second applicant’s application for interlocutory relief filed on 5 June 2019.

10. Costs of the second applicant’s application for interlocutory relief filed on 5 June 2019 as between the respondent and the second applicant are reserved.

11. The parties have liberty to apply on 3 days’ notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

1. When I delivered judgment in this matter ([2019] FCA 2018), I made orders requiring the parties to consult and to agree upon, and submit, a draft set of orders to my chambers which reflected the contents of my reasons for judgment. Regrettably, the parties could not reach agreement on those orders so they were subsequently ordered to file written submissions on that issue. Essentially, three issues emerged from the written submissions that were filed. They are:

1. the form of the indemnity to be provided by Forward Pack (the second applicant) to Mr Glen Oldham, the liquidator of the company DJ Builders & Son Pty Limited (in liquidation) (DJ Builders) (the first applicant);

2. whether the moneys to secure that indemnity should be paid into court;

3. whether Forward Pack should be ordered to pay the liquidator’s costs to date.

The second issue above is now agreed. I will address the remaining two issues in order below.

2. First, it is convenient to set out the competing sets of draft orders advanced by each of the liquidator and Forward Pack. They are as follows:

[The liquidator’s proposed orders]

1. Subject to the second applicant and Lawrence Dore complying with paragraphs 2 and 3 below, leave is granted to the second applicant nunc pro tunc to bring and take responsibility for this proceeding on behalf of the first applicant.

2. The second applicant and Lawrence Dore pay and bear (and indemnify the first applicant against) all costs, charges and expenses (including remuneration) of and incidental to the bringing and continuation of this proceeding brought by the second applicant on behalf of the first applicant.

3. The second applicant and Lawrence Dore pay into Court the sum of $125,000.00 within 30 days of the order of this court as security for the indemnity in paragraph 2 of this order.

4. The second applicant and Lawrence Dore pay the first applicant’s costs of the proceeding.

5. The parties have liberty to apply.

[Forward Pack’s proposed orders]

Leave to proceed

1. Upon the second applicant complying with Order 3, below, the second applicant have leave, nunc pro tunc, to bring and take responsibility for these proceedings for and on behalf of the first applicant.

Indemnity and Security

2. The second applicant and Mr Lawrence Frederick Doré indemnify the first applicant against and the liquidator of the first applicant, Mr Glen Oldham, against any adverse costs orders made against them in relation to these proceedings.

3. Within 30 days of the making of this order, the second applicant deposit the sum of $125,000 into Court by way of security for the indemnity in Order 2 (Security).

4. The Security is:

(a) held by way of security for any adverse costs order that may be made against the first applicant or the liquidator for the first applicant;

(b) not to be released other than pursuant to the express written agreement of the liquidator of the first applicant and the second applicant or pursuant to an order of the Court.

5. To the extent that the liquidator of the first applicant considers that further security for the costs referred to in Order 4(a) above is required:

(a)...