ANDREW IAN du BOULAY (plaintiff/appellant) v IVOR WORRELL, RAJ KHATRI AND MORGAN LANE (defendants/respondents)
FILE NO/S:
Appeal No 8434 of 2008 SC No 409 of 2004
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
24 March 2009
DELIVERED AT:
Brisbane
HEARING DATE:
18 March 2009
JUDGES:
Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
1. Appeal dismissed
2. Appellant to pay the respondents' costs of and incidental to the appeal on the indemnity basis
CATCHWORDS:
CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – DISSOLUTION – RESTORATION OF DEFUNCT COMPANY TO REGISTER – IN WHAT CIRCUMSTANCES ORDER MADE – GENERALLY – where appellant applied for restoration of defunct company to register in order to bring proceedings against administrators-liquidators for alleged damage caused to company – where appellant's application filed six years after company deregistered – where appellant's application heard 10 years after company deregistered – where company's books and records were destroyed prior to application – whether company should be restored to register
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – GENERALLY – where appellant's pleadings seriously defective in numerous respects – where appellant's pleadings prolix and vexatious – whether appellant's pleadings oppressive and thus an abuse of process
EQUITY – GENERAL PRINCIPLES – REMEDIES AND PROCEDURE – ACTION FOR DAMAGES FOR FRAUD – where appellant claimed damages for fraud loosely based on equitable and statutory causes of action – where appellant framed claim in such manner to avoid action being barred by statute – where appellant failed to particularise facts demonstrating necessary elements of causes of action – where appellant failed to demonstrate damage suffered either to himself or the company as a result of alleged conduct – whether actions sustainable in light of deficiencies
[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.
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Details
AGLC
Du Boulay v Worrell [2009] QCA 63
Case
[2009] QCA 63
Decision Date
CaseChat Overview and Summary
The appeal in Du Boulay v Worrell involved the appellant, who sought to have a defunct company restored to the company register to pursue legal action against its administrators-liquidators for damages allegedly caused to the company. The application for restoration was filed six years after the company's deregistration and heard a decade later. A significant issue was that the company's records had been destroyed before the application was made. The central legal questions focused on whether the company should be restored to the register under the circumstances and whether the appellant's claims for damages based on alleged fraud were sustainable.
The court examined whether the appellant's application for restoration was made within a reasonable time, given the six-year delay post-deregistration. The court also considered whether the destruction of the company's records prejudiced the appellant's ability to prove the necessary facts for the claims. Regarding the appellant's claims for damages, the court scrutinised the pleadings, finding them seriously defective and lacking in particulars. The court noted that the appellant's claims were prolix and vexatious, failing to demonstrate the required elements of fraud or the damages suffered. The court found that the appellant's approach to framing the claims was an abuse of process.
After thorough consideration, the court dismissed the appeal and ordered the appellant to pay the respondents' costs of and incidental to the appeal on the indemnity basis. The court concluded that the delay in applying for restoration and the lack of particularised evidence undermined the appellant's case. Additionally, the court held that the appellant's claims for damages were unsustainable due to the deficiencies in the pleadings and the failure to demonstrate the necessary elements of the alleged fraud or the resulting damages.
Orders
Orders of the court
1. Appeal dismissed
2. Appellant to pay the respondents' costs of and incidental to the appeal on the indemnity basis