Prosperity Group International Pty Ltd ACN 110 539 636 v Queensland Communication Company Pty Ltd ACN 126 049 385 [2010] FCA 103 (8 February 2010)

Last Updated: 25 February 2010

FEDERAL COURT OF AUSTRALIA

Prosperity Group International Pty Ltd ACN 110 539 636 v Queensland Communication Company Pty Ltd ACN 126 049 385 [2010] FCA 103

Citation:		Prosperity Group International Pty Ltd ACN 110 539 636 v Queensland Communication Company Pty Ltd ACN 126 049 385 [2010] FCA 103
Parties:		PROSPERITY GROUP INTERNATIONAL PTY LTD ACN 110 539 636 and WORLDNET CORPORATION LIMITED PTY LTD ACN 113 910 124 v QUEENSLAND COMMUNICATION GROUP PTY LTD ACN 129 049 385, ASIX TELECOMS PTY LTD ACN 126 049 385, CLEAR TELECOMS (AUST) PTY LTD ACN 129 296 573, AUSTRALIAN EQUIPMENT RENTALS PTY LTD ACN 126 049 376 and QUICK FUND (AUSTRALIA) PTY LTD ACN 116 768 711
File number:		QUD 32 of 2009
Judge:		LOGAN J
Date of judgment:		8 February 2010
Legislation:		Trade Practices Act 1974 (Cth) s73 Corporations Act 2001 (Cth)
Date of hearing:	8 February 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicants:	Mr K Howe
Solicitor for the Applicants:	MSL Solicitors
Counsel for the Respondents:	Ms MH Hindman
Solicitor for the Respondents:	Andrew Abaza town agent for John Hagge Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 32 of 2009

BETWEEN:

PROSPERITY GROUP INTERNATIONAL PTY LTD ACN 110 539 636 First Applicant WORLDNET CORPORATION LIMITED PTY LTD ACN 113 910 124 Second Applicant

AND:

QUEENSLAND COMMUNICATION GROUP PTY LTD ACN 129 049 385 First Respondent ASIX TELECOMS PTY LTD ACN 126 049 385 Second Respondent CLEAR TELECOMS (AUST) PTY LTD ACN 129 296 573 Third Respondent AUSTRALIAN EQUIPMENT RENTALS PTY LTD ACN 126 049 376 Fourth Respondent QUICK FUND (AUSTRALIA) PTY LTD ACN 116 768 711 Fifth Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	8 FEBRUARY 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The First and Second Applicants are granted leave to proceed against the First and Second Respondents pursuant to section 500(2) of the Corporations Act 2001.
2. The First and Second Applicants are:

(a) by 22 February 2010, to furnish to the Respondents further and better particulars of those provisions said to give rise to the penalties pleaded in paragraph 14(a) of the amended statement of claim;

(b) by 22 February 2010, to furnish to the Respondents the facts, matters and circumstances by which it alleged that the Applicants are consumers, the Respondents are linked credit providers and how a contravention of section 73 of the Trade Practices Act is said to arise;

(c) granted leave to file a further amended statement of claim if the Applicants elect not to proceed with a claim as set out in paragraph 11 of the amended state of claim;

(d) by 22 February 2010, to serve on the Third, Fourth and Fifth Respondents any request for further and better particulars of the proposed further amended defence and cross-claim.

3. The Third, Fourth and Fifth Respondents are:

(a) granted leave to file a further amended defence and cross-claim, substantially in the form as attached to the Third, Fourth and Fifth Respondents’ notice of motion filed on 4 December 2009;

(b) by 22 February 2010, to provide further disclosure by delivery of a supplementary list of documents;

(c) by 8 March 2010, to provide an answer to any request for further and better particulars, incorporating such answers, where appropriate, into the further amended defence and cross-claim.

4. The Third, Fourth and Fifth Respondents are to pay the First and Second Applicants’ costs of and incidental to the Third, Fourth and Fifth Respondents’ notice of motion filed on 4 December 2009, in respect of the Third, Fourth and Fifth Respondents’ application for leave to file an amended defence.
5. Costs otherwise be reserved.

Further Directions ordered by consent

6. The First and Second Applicants shall file and serve any reply and defence to the cross-claim on or before 22 March 2010.
7. The Respondents shall file and serve any reply to any defence to the cross-claim on or before 5 April 2010.
8. The parties are to provide any supplementary disclosure by delivery of a supplementary list of documents in the parties’ possession, custody or power on or before 12 April 2010.
9. Inspection of the disclosed documents is to be completed by 26 April 2010.
10. Any party intending to tender any plan, photograph or model at the trial of this matter, shall give the other parties an opportunity to inspect and agree to its admission without proof, not less than seven (7) days prior to the trial.
11. Any party requiring production of documents shall comply with Order 33 Rule 12 of the Federal Court Rules.
12. The parties shall agree on and file a bundle of documents to be relied upon at trial not less than 6 weeks prior to the commencement of the trial.
13. Evidence-in-chief at the trial of the Applicants’ claim is to be given by affidavit.
14. Evidence-in-chief at the trial of the Respondents’ cross-claim is to be given by affidavit.
15. The Applicants shall file and serve the affidavit(s) upon which they wish to rely for their cross-claim not less than eight (8) weeks prior to the commencement of the trial.
16. The Respondents shall file and serve the affidavit(s) upon which they wish to rely for their cross-claim not less than eight (8) weeks prior to the commencement of the trial.
17. The parties shall file and serve any responsive affidavit(s) upon which they wish to rely not less than four (4) weeks prior to the commencement of the trial.
18. The Applicants shall file and serve a notice on the Respondents specifying any material in the Respondents’ affidavit(s) to which they object, not less than two weeks prior to the commencement of the trial.
19. The Respondents shall file and serve a notice on the Applicants specifying any material in the Applicants’ affidavit(s) to which they object, not less than two weeks prior to the commencement of the trial.
20. The parties shall file and serve a list of witnesses required for cross-examination not less than two weeks prior to the commencement of the trial.
21. This matter be listed for hearing in August 2010 after consultation with the parties.
22. Any party shall be at liberty to apply by giving the other party three (3) days’ notice in writing.
    

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 32 of 2009

BETWEEN:

PROSPERITY GROUP INTERNATIONAL PTY LTD ACN 110 539 636 First Applicant WORLDNET CORPORATION LIMITED PTY LTD ACN 113 910 124 Second Applicant

AND:

QUEENSLAND COMMUNICATION GROUP PTY LTD ACN 129 049 385 First Respondent ASIX TELECOMS PTY LTD ACN 126 049 385 Second Respondent CLEAR TELECOMS (AUST) PTY LTD ACN 129 296 573 Third Respondent AUSTRALIAN EQUIPMENT RENTALS PTY LTD ACN 126 049 376 Fourth Respondent QUICK FUND (AUSTRALIA) PTY LTD ACN 116 768 711 Fifth Respondent

JUDGE:	LOGAN J
DATE:	8 FEBRUARY 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The Third, Fourth and Fifth Respondents have, in respect of paragraphs identified in para 2 of the notice of motion filed on 4 December 2009, sought to challenge particular aspects of the amended statement of claim. It does not appear that, as one might have hoped and expected, particular complaints made in respect of those paragraphs were the subject of correspondence in advance which drew attention to perceived deficiencies in those paragraphs. One of those, para 2(c) alleges a duty of care. Earlier versions of the defence admit this paragraph. It is difficult in those circumstances to see why it should be struck out.
2. As to para 10(c) of the amended statement of claim, it seems to me that the allegations as to overpayment which appear in that sub-paragraph are sufficiently pleaded. Whether there is any merit in the allegation is a matter for trial.
3. Paragraph 11 raises an allegation in respect of an alleged contravention of s 73(1) of the Trade Practices Act 1974 (Cth) (Trade Practices Act). The applicants have not had the benefit until this morning of hearing the nature of the challenge made to the sufficiency of that allegation. It may be that whether the allegation is sound or not depends upon an elaboration of the facts, matters and circumstances relied upon. I have already, in the course of argument, signified that I propose to direct that the first and second applicants furnish further and better particulars of the allegations in respect of that paragraph. If it transpires that in the course of preparing them the view is reached that the allegation in para 11 ought not be pressed then I expect that the disposition will be communicated to the Third, Fourth and Fifth Respondents.
4. As to para 13(a)(xi), the allegation that appears there is one of repudiation of the contracts referred to elsewhere in the pleading. It ought, in my respectful opinion, be the subject of a discrete allegation of fact and law in the pleading rather than but part of particulars of another allegation. The intent though is clear enough even though, as a matter of strict form, it is an inelegant and perhaps even impermissible way of raising the allegation of acceptance of repudiation. I am not disposed though to strike it out as it does not seem to me to have proved embarrassing to date or likely in any way to delay the trial.
5. As to para 14(a) and para 14(b) of the amended statement of claim, the allegations respectively of penalties and unconscionability either under the Trade Practices Act or the general law are in my opinion sufficient, save that it would assist matters if the Applicants were ordered to furnish particulars of particular clauses of the contracts said to give rise to penalties. I have already signified in the course of submissions a disposition to order the furnishing of particulars in that regard.
6. As to the other matters, the subject of notices of motion, leave is sought under the Corporations Act 2001 (Cth) by the Applicants to proceed against the first and second respondents. It suffices to say that on the affidavit material relied upon by the Applicants a basis is shown and I note that course is not opposed. The balance of the matters, the subject of notices of motion, seem to have resolved themselves prior to today’s hearing. Those matters include the filing and serving by the Third, Fourth and Fifth Respondents of a further amended defence. Leave to file a further amended defence is granted. As to the form of that further amended defence, it may to some extent depend upon the particulars which the Applicants are to provide as well as whether or not the applicants are to press the allegation in para 11 of the amended statement of claim.
7. In those circumstances, what I propose to do is grant leave to the Applicants, if so advised, to file and serve a further amended statement of claim in the event that para 11 of the amended statement of claim is not pressed. I also grant leave to the Third, Fourth and Fifth Respondents to file a further amended defence which in form will be either that as presently proposed in conjunction with the notice of motion today or responsive to such further amended statement of claim as the applicants may come to file. I propose to stand the matter down to allow the counsel for the parties to settle upon directions for the further conduct of the trial. I have signified to the parties the trial dates which are available.
8. The view I have got on the costs side is that insofar as the Third, Fourth and Fifth Respondents’ notices of motion relates to the seeking of leave further to amend the defence that the Third, Fourth and Fifth Respondents pay the Applicant’s costs of and incidental to that notice of motion but that otherwise the costs in respect of each of the notices of motion heard today be reserved.
   

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 23 February 2010