Brookfield v RealEstate Now Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION: 

Brookfield v RealEstate Now Pty Ltd and Another [2021] QDC 226

PARTIES: 

IAN WALTER BROOKFIELD  
(Plaintiff/Applicant)

v
REALESTATE NOW PTY LTD (ACN 153307432)
(First Defendant/Respondent)
AND
MARK WILLIAM MERGARD
(Second Defendant/Respondent)

FILE NO:

1943/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

Brisbane District Court

DELIVERED ON:

8 September 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

8 September 2021

JUDGE:

Porter QC DCJ

ORDERS:

1.   That proceeding 1943/21 be dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – STAY OF PROCEEDING – ABUSE OF PROCESS – where first proceeding against company and its director was stayed pending resolution of committal process involving plaintiff as defendant and director as complainant – where second proceeding against the company alone were commenced while the stay of the first proceedings remained in place – whether omitting director addressed the reason for stay of first proceeding – whether Court could conclude that director would never be given leave to appear on behalf of the company in the second proceeding – whether the second proceeding was an abuse of process as comprising two proceedings advancing the same claim  

CASES:

Brookfield v Real Estate Now Pty Ltd (Subject to Deed of Company Arrangement) [2017] FCA 1083

Brookfield v Real Estate Now Pty Ltd [2019] FCA 993

Brookfield, in the matter of Real Estate Now Pty Ltd v Real Estate Now Pty Ltd [2020] FCA 352

Di Carlo v Dubois [2007] QCA 316

McHenry v Lewis [1882] 22 Ch 397

Merrin v Cairns Port Authority [2006] QCA 278

Newton v Brisbane City Council [2014] QCA 242

Simto Resources Limited v Normandy Capital Limited (1993) 10 ACSR 776

Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192

LEGISATION:

District Court of Queensland Act 1967 (Qld), ss. 51, 52

 Appearances:

I. Brookfield appeared in person for the Plaintiff/Applicant

M. Mergard appeared in person with leave for the First Defendant/Respondent and Second Defendant/Respondent  

Background  

1. The plaintiff in this case is Mr Ian Brookfield.  In the proceedings before me today, proceeding 1943/21, he is suing a company called Realestate Now Pty Ltd (Realestate Now).  The sole director and sole shareholder, it seems, of that company is Mr Mark Mergard.  The gravamen of Mr Brookfield’s claim is simply stated.  He pleads, in this proceeding, the existence of a contract to sell a rent roll between a company called Blueprop Pty Ltd (Blueprop) and Realestate Now.  He pleads relevant terms of that contract. He pleads that Realestate Now is indebted in respect of the purchase price and other amounts, which should have been paid, either pursuant to that contact or as a consequence of it. He claims, in place of Blueprop, on the basis of a deed of assignment (not particularised in the statement of claim) of the rights of Blueprop to him before its deregistration.  I will call this the rent roll claim. 

Previous winding up proceedings

1. There is a long history to the rent roll claim.…