Du Boulay v Worrell

Case [2009] QCA 63


SUPREME COURT OF QUEENSLAND

CITATION:

du Boulay v Worrell & Ors [2009] QCA 63

PARTIES:

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

Corporations Act 2001 (Cth), s 57A, s 181, s 236, s 237,
s 473, s 493, s 499, s 504, s 556, s 590, s 601AH
Corporations Law
(Corporations Act 1989 (Cth)), s 180,
s 182, s 184, s 435A, s 590
Criminal Code
1899 (Qld), s 408C, s 437, s 438, s 441, s 492
Criminal Practice Rules
1999 (Qld)
Judiciary Act
1903 (Cth), s 79
Limitation of Actions Act
1974 (Qld)
Trade Practices Act
1974 (Cth), s 52
Trusts Act
1973 (Qld), s 7, s 23
Uniform Civil Procedure Rules
1999 (Qld), r 149, r 157,
r 293

Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64, cited
Australian Securities Commission v AS Nominees Ltd
(1995) 62 FCR 504; [1995] FCA 1663, cited
Bhagat v Global Custodians Ltd
[2002] FCA 223, cited
Breen v Williams (1996) 186 CLR 71; [1996] HCA 57, cited
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36

Continue reading Du Boulay v Worrell

Sign in free to access the full text

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.