Dalrance Pty Ltd v Vullers - [2003] QDC 41

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Transcript of Proceedings

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DISTRICT COURT [2003] QDC 041 Date: 7 April, 2003
CIVIL JURISDICTION
JUDGE ROBIN QC
No 5044 of 1997

DALRANCE PTY LTD (ACN 010 927 992) Plaintiff
AS TRUSTEE FOR THE CESNAR TRUST
and
HENDRIKUS J VULLERS First Defendant
and
H & CT VULLERS PTY LTD Second Defendant
(ACN 009 729 677) AS TRUSTEE UNDER
NOMINATION OF TRUSTEE NO.K7567720
and
C FREDERIKS PTY LTD Third Party
(ACN 009 884 057)
BRISBANE
..DATE 20/03/2003
ORDER

1

20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ)

HIS HONOUR: Before the Court are cross-applications which 1

originally came on for hearing before his Honour Judge is for the striking out of the claim. The plaintiff's application is for leave to file amended pleadings.

10

As the title of the proceedings indicates, the plaintiff is a trustee. The basis of the defendant's application is that as regards the plaintiff's claim for breach of contract tort,
which I would understand to be misrepresentation and Trade

20

Practices Act type relief, the relevant causes of action belong to and ought to be pursued by the beneficiaries under the trust arrangements.
That contention was the issue before Judge McLauchlan and he

30

expressed a clear view on it saying at page 13 of the
transcript that he was "inclined to think that it should be
struck out" which seems to me to involve a resort to tentative
language not consistent with the definite view that I think
his Honour reached.

40

He said at the foot of page 14,
"The alternatives seem to me to be to strike it out or,
alternatively, grant some time to the plaintiff to see if it could put the proceedings in order in some way for the benefit of the beneficiaries. I think that as things
stand the claim should be struck out but if you wanted to

then, of course, you could commence other proceedings no 50
doubt properly formulated or, alternatively, you might be
able to do something about amending these proceedings."

2 ORDER 60

20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ)

Mr Stone, who was counsel for the plaintiff, which is 1
represented today by Mr Looney, asked for a week to consider
what ought to happen. What his Honour did was adjourn the
applications to 20 December. In the end they have come on
today before me.

10

Mr Lilley, who appeared before his Honour, and again today appears for the defendants, on 6th December attempted to preserve for his clients the benefit of their victory, saying at page 20:

20

"Your Honour, just to save reargument can it be indicated
in the order the purpose of the adjournment because if
your Honour's not sitting on the 20th I don’t want to
come back and have to argue the strike out point again."

His Honour said,
"The adjournment and the record can show the adjournment
being granted because it appears to me that on the

pleadings as they stand the defendants have established 30
that they ought to be struck out because the plaintiff
doesn't have a cause of action and it's being adjourned
so that the plaintiff's legal representatives can
consider what they should do or may do by way of
repleading with particular reference to the beneficiaries
of the trust so it's left broadly so that they can
consider and take such action as I (sic) think is
appropriate."
40

There are undoubtedly situations in which the Applications
Judge may express views, even strong ones, about the merits of
litigants' legal situations, which have no ultimate effect or,
indeed, relevance. An example may be a summary judgment

50

application which fails accompanied by strong intimations from
the Judge who hears it that the plaintiff's claim is
completely hopeless. Such in intimation is not in any way

3 ORDER 60

20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ)

binding on a trial Judge subsequently who may see things 1
entirely differently.
Another instance that I have mentioned in argument concerns

situations in which leave to appeal is granted by an appellate 10
Court, perhaps accompanied by strong intimations that the
decision appealed is wrong, whereas the ultimate determination
by the appellate court when the appeal itself comes on for
hearing may be that the decision appealed was entirely
20
correct.
In the present circumstances, as I said at the outset, I have
before me exactly the same applications as Judge McLauchlan
considered. No new applications have been filed. I think it 30
would bring the system into disrepute if I were to reach or
even entertain reaching a contrary view to that expressed by
his Honour.
40
Mr Looney says that he has come armed today with additional
arguments that were not made on the 6th of December. I am
willing to accept that it might be open to Judge McLauchlan,
he having made no formal order, to reopen the matter. I
50
consider I am not so favourably placed and that considerations
of comity and the integrity of the Court's procedures preclude
my doing so.

4 ORDER 60

20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ)

My firm attitude is that I ought to perfect what Judge 1
McLauchlan did by making the order sought in the defendant's
strike out application, and that I ought not to revisit
arguments he resolved. I have indicated, however, in light of

Mr Looney's last minute application, that I adjourn the matter 10
to Judge McLauchlan; that I will withhold making any formal
order so that his Honour can be approached by me or by Mr
Looney's instructing solicitors to ascertain whether he is
prepared to entertain it. I would not wish to create any
20
impediment to that happening.
It might be noted that matters have not advanced beyond the
6th of December situation so far as the possibility of
beneficiaries being brought in as substituted or new parties 30
goes. I understand one of Judge McLauchlan's concerns to have
been to preserve an advantageous date of commencement of
proceedings with a view to sparing the plaintiff limitations
difficulties. Mr Looney is in no better a position than was 40
Mr Stone last year to apply for any particular orders about
parties. The one exception to that situation is that on the
other side of the record there appears to have been a misnomer
of the first-named defendant in that there has been some
50
confusion of father and son. Mr Lilley has indicated to the
Court that he does not wish to say anything in relation to,
what, a substitution or correction of name? Was is it, Mr
Lilley?

5 ORDER 60

20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ)

MR LILLEY: I think it is a substitution, your Honour. 1
HIS HONOUR: Can you identify the substitution?

MR LILLEY: I think instead of Hendrikus J Vullers I think it becomes Hendricus Vullers - it becomes Hendricus Vullers with a "C" in Hendricus, not a "K".

HIS HONOUR: So to the substitution of Hendricus, with a "C", 10

Vullers for the present first-named defendant, Hendrikus, with a "K" Vullers.
MR LILLEY: And a "J", initial "J" as well, your Honour.
HIS HONOUR: The new one has got a "J"?
MR LILLEY: No, the new one does not have a "J". The present
one has a "J". 20

HIS HONOUR: Well, it doesn't in the short heading that I've got. So in lieu of Hendrikus, with a "K" and the middle initial J, we substitute "Hendricus", with a "C".
...
30
HIS HONOUR: I will order that you have the costs of your
application, Mr Lilley, and make no costs order on the other
one.
40
...

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50

6 ORDER 60

20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ)

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7 ORDER 60

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Dalrance Pty Ltd v Vullers [2003] QDC 41

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DISTRICT COURT	[2003] QDC 041	Date: 7 April, 2003
CIVIL JURISDICTION JUDGE ROBIN QC
No 5044 of 1997

DALRANCE PTY LTD (ACN 010 927 992)	Plaintiff
AS TRUSTEE FOR THE CESNAR TRUST
and
HENDRIKUS J VULLERS	First Defendant
and
H & CT VULLERS PTY LTD	Second Defendant
(ACN 009 729 677) AS TRUSTEE UNDER NOMINATION OF TRUSTEE NO.K7567720
and
C FREDERIKS PTY LTD	Third Party
(ACN 009 884 057)
BRISBANE ..DATE 20/03/2003
ORDER

HIS HONOUR: Before the Court are cross-applications which	1
originally came on for hearing before his Honour Judge is for the striking out of the claim. The plaintiff's application is for leave to file amended pleadings.

then, of course, you could commence other proceedings no	50
doubt properly formulated or, alternatively, you might be able to do something about amending these proceedings."

Mr Stone, who was counsel for the plaintiff, which is	1
represented today by Mr Looney, asked for a week to consider what ought to happen. What his Honour did was adjourn the applications to 20 December. In the end they have come on today before me.

pleadings as they stand the defendants have established	30
that they ought to be struck out because the plaintiff doesn't have a cause of action and it's being adjourned so that the plaintiff's legal representatives can consider what they should do or may do by way of repleading with particular reference to the beneficiaries of the trust so it's left broadly so that they can consider and take such action as I (sic) think is appropriate."
40

binding on a trial Judge subsequently who may see things	1
entirely differently.
Another instance that I have mentioned in argument concerns
situations in which leave to appeal is granted by an appellate	10
Court, perhaps accompanied by strong intimations that the
decision appealed is wrong, whereas the ultimate determination
by the appellate court when the appeal itself comes on for
hearing may be that the decision appealed was entirely
20
correct.
In the present circumstances, as I said at the outset, I have
before me exactly the same applications as Judge McLauchlan
considered. No new applications have been filed. I think it	30
would bring the system into disrepute if I were to reach or
even entertain reaching a contrary view to that expressed by
his Honour.
40
Mr Looney says that he has come armed today with additional
arguments that were not made on the 6th of December. I am
willing to accept that it might be open to Judge McLauchlan,
he having made no formal order, to reopen the matter. I
50
consider I am not so favourably placed and that considerations
of comity and the integrity of the Court's procedures preclude
my doing so.

My firm attitude is that I ought to perfect what Judge	1
McLauchlan did by making the order sought in the defendant's
strike out application, and that I ought not to revisit
arguments he resolved. I have indicated, however, in light of
Mr Looney's last minute application, that I adjourn the matter	10
to Judge McLauchlan; that I will withhold making any formal
order so that his Honour can be approached by me or by Mr
Looney's instructing solicitors to ascertain whether he is
prepared to entertain it. I would not wish to create any
20
impediment to that happening.
It might be noted that matters have not advanced beyond the
6th of December situation so far as the possibility of
beneficiaries being brought in as substituted or new parties	30
goes. I understand one of Judge McLauchlan's concerns to have
been to preserve an advantageous date of commencement of
proceedings with a view to sparing the plaintiff limitations
difficulties. Mr Looney is in no better a position than was	40
Mr Stone last year to apply for any particular orders about
parties. The one exception to that situation is that on the
other side of the record there appears to have been a misnomer
of the first-named defendant in that there has been some
50
confusion of father and son. Mr Lilley has indicated to the
Court that he does not wish to say anything in relation to,
what, a substitution or correction of name? Was is it, Mr
Lilley?

MR LILLEY: I think it is a substitution, your Honour.	1
HIS HONOUR: Can you identify the substitution?
MR LILLEY: I think instead of Hendrikus J Vullers I think it becomes Hendricus Vullers - it becomes Hendricus Vullers with a "C" in Hendricus, not a "K".
HIS HONOUR: So to the substitution of Hendricus, with a "C",	10
Vullers for the present first-named defendant, Hendrikus, with a "K" Vullers.
MR LILLEY: And a "J", initial "J" as well, your Honour.
HIS HONOUR: The new one has got a "J"?
MR LILLEY: No, the new one does not have a "J". The present
one has a "J".	20
HIS HONOUR: Well, it doesn't in the short heading that I've got. So in lieu of Hendrikus, with a "K" and the middle initial J, we substitute "Hendricus", with a "C".
...
30
HIS HONOUR: I will order that you have the costs of your
application, Mr Lilley, and make no costs order on the other
one.
40
...