Clements v McGregor - [2016] QSC 258

SUPREME COURT OF QUEENSLAND

CITATION:

Clements & Anor v McGregor & Ors [2016] QSC 258

PARTIES:

ROSS GEORGE CLEMENTS

(first plaintiff)
MICHELLE CLEMENTS
(second plaintiff)

v
ROBERT McGREGOR
(first defendant)
HOLMAN McGREGOR FINANCIAL SERVICES PTY LTD ACN 155 577 464
(second defendant)
PROFESSIONAL INVESTMENT SERVICES PTY LTD
ABN 11 074 608 558

(third defendant)

FILE NO/S:

BS No 5650 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2016

JUDGE:

Martin J

ORDER:

1.   Remove the second defendant as a party to the proceeding and substitute “Holman McGregor Financial Services (a firm)” in its place.

2.   The applicants pay the outgoing second defendant’s – that is, Holman McGregor Financial Services Pty Ltd’s – costs of the proceedings.

3.   The applicants pay the costs of the application of the first and third defendants and the incoming second defendant – that is, Holman McGregor Financial Services (a firm).

4.   Direct that the applicants file and serve an amended claim and statement of claim within seven days of the publication of these reasons.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where the applicant plaintiffs seek an order removing the second defendant and substituting in its place a partnership by a similar name – where the second defendant was not in existence at the time the events the subject of the claim are alleged to have occurred – whether the order sought should be made – whether, for the purposes of the commencement of the limitation period, the proceedings should be taken to have commenced at the time the claim was originally filed or at the time the amended claim against the proposed new second defendant is filed

Australian Securities Investment Commission Act 2001
Corporations Act 2001

Uniform Civil Procedure Rules 1999, r 69, r 74(5), r 376

Limpus v State of Qld & Ors [2003] QCA 563, considered
Montgomery & Ors v Pickard & Ors [2007] QCA 203, cited

COUNSEL:

C Heyworth-Smith QC for the applicants/plaintiffs

G Stirling (sol) for the first to third defendants

P O’Brien for Holman McGregor Financial Services

SOLICITORS:

Turner Freeman Lawyers for the applicants/plaintiffs

Carter Newell for the first to third defendants

Mills Oakley for Holman McGregor Financial Services

In June 2015 the plaintiffs (the applicants) commenced proceedings against the defendants claiming damages for negligence, breach of contract and breach of various sections of the Australian Securities Investment Commission Act 2001 and the Corporations Act 2001.
The first defendant is the applicants’ former financial planner. The third defendant is the Australian Financial Services Licensee of which the first defendant was an “authorised representative”.
This application concerns the identity of the second defendant. The applicants plead that the second defendant employed the first defendant in its business as a provider of financial services. This is now acknowledged not to have been possible because the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clements v McGregor

Details

AGLC: Clements v McGregor [2016] QSC 258
Case: [2016] QSC 258
Decision Date: 18 November 2016

CaseChat Overview and Summary

In the case of Clements v McGregor, the applicants, the Clements, sought an order to remove the second defendant, Holman McGregor Financial Services Pty Ltd, from the proceedings and replace it with a partnership, Holman McGregor Financial Services (a firm). The dispute arose from financial transactions that allegedly occurred before the partnership was established. The legal issues before the court were whether the order should be granted and, if so, whether the limitation period for the proceedings should start from the original filing date or the date of the amended claim. The court was tasked with determining the appropriate party to be held liable and the timing of the limitation period in light of the substitution of parties.

The court considered the procedural rules regarding the joinder of causes of action and parties. It noted that the second defendant, Holman McGregor Financial Services Pty Ltd, did not exist at the time of the events in question and that the proper party to be held liable should be the partnership, Holman McGregor Financial Services (a firm). The court concluded that substituting the partnership for the Pty Ltd company would not prejudice the defendants and was in the interests of justice. Regarding the limitation period, the court held that the amendment to the claim did not reset the limitation period, as the amendment was procedural and did not introduce a new cause of action.

The court ordered the removal of Holman McGregor Financial Services Pty Ltd as a party and substituted Holman McGregor Financial Services (a firm) in its place. It also ordered the applicants to pay the outgoing second defendant’s costs and the costs of the application to the remaining defendants and the incoming second defendant. Furthermore, the court directed the applicants to file and serve an amended claim and statement of claim within seven days of the publication of these reasons. This decision clarified the procedural steps required in cases of party substitution and the implications for limitation periods.

Orders

Orders of the court

1. Remove the second defendant as a party to the proceeding and substitute “Holman McGregor Financial Services (a firm)” in its place.

2. The applicants pay the outgoing second defendant’s – that is, Holman McGregor Financial Services Pty Ltd’s – costs of the proceedings.

3. The applicants pay the costs of the application of the first and third defendants and the incoming second defendant – that is, Holman McGregor Financial Services (a firm).

4. Direct that the applicants file and serve an amended claim and statement of claim within seven days of the publication of these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Clements & Anor v McGregor & Ors [2016] QSC 258
PARTIES:	ROSS GEORGE CLEMENTS (first plaintiff) MICHELLE CLEMENTS (second plaintiff) v ROBERT McGREGOR (first defendant) HOLMAN McGREGOR FINANCIAL SERVICES PTY LTD ACN 155 577 464 (second defendant) PROFESSIONAL INVESTMENT SERVICES PTY LTD ABN 11 074 608 558 (third defendant)
FILE NO/S:	BS No 5650 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2016
JUDGE:	Martin J
ORDER:	1. Remove the second defendant as a party to the proceeding and substitute “Holman McGregor Financial Services (a firm)” in its place. 2. The applicants pay the outgoing second defendant’s – that is, Holman McGregor Financial Services Pty Ltd’s – costs of the proceedings. 3. The applicants pay the costs of the application of the first and third defendants and the incoming second defendant – that is, Holman McGregor Financial Services (a firm). 4. Direct that the applicants file and serve an amended claim and statement of claim within seven days of the publication of these reasons.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where the applicant plaintiffs seek an order removing the second defendant and substituting in its place a partnership by a similar name – where the second defendant was not in existence at the time the events the subject of the claim are alleged to have occurred – whether the order sought should be made – whether, for the purposes of the commencement of the limitation period, the proceedings should be taken to have commenced at the time the claim was originally filed or at the time the amended claim against the proposed new second defendant is filed Australian Securities Investment Commission Act 2001 Corporations Act 2001 Uniform Civil Procedure Rules 1999, r 69, r 74(5), r 376 Limpus v State of Qld & Ors [2003] QCA 563, considered Montgomery & Ors v Pickard & Ors [2007] QCA 203, cited
COUNSEL:	C Heyworth-Smith QC for the applicants/plaintiffs G Stirling (sol) for the first to third defendants P O’Brien for Holman McGregor Financial Services
SOLICITORS:	Turner Freeman Lawyers for the applicants/plaintiffs Carter Newell for the first to third defendants Mills Oakley for Holman McGregor Financial Services