SUPREME COURT OF QUEENSLAND
CITATION:
Equititrust Limited v Tucker & Others [2021] QSC 188
PARTIES:
EQUITITRUST LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ON ITS OWN ACCOUNT AND AS TRUSTEE OF THE EQUITITRUST PREMIUM FUND
ACN 061 383 944
(plaintiff)v
DAVID ROBERT WALTER TUCKER(first defendant)
TUCKERLOAN PTY LTD ON ITS OWN ACCOUNT AND AS TRUSTEE OF THE TUCKERLOAN TRUST
ACN 101 109 157
(second defendant)DAVID ROBERT WALTER TUCKER AND RICHARD TERRICK COWEN CARRYING ON PRACTICE AS PARTNERS UNDER THE NAME TUCKER & COWEN SOLICITORS (A FIRM)
(fifth defendants)
TCS SOLICITORS PTY LTD
ACN 610 321 509
(sixth defendant)FILE NO/S:
BS No 7399 of 2018
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED EX TEMPORE ON:
30 July 2021
DELIVERED AT:
Brisbane
HEARING DATE:
30 July 2021
JUDGE:
Bradley J
ORDERS:
THE ORDER OF THE COURT IS THAT:
1. Subparagraph 131(g) of the fourth further amended statement of claim is struck out with leave to replead.
2. The plaintiff is to file and serve any fifth further amended statement of claim by 4pm on
6 August 2021.3. The costs of the application filed 29 July 2021 are each party’s costs in the proceeding.
4. The application filed 23 July 2021 is adjourned until 10am on 26 August 2021.
5. The costs of the application filed 23 July 2021 are reserved.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the plaintiff is entitled to a presumption in law without having to prove the matters alleged in sub-paragraph 131(g) of its fourth further amended statement of claim – where the particular sub-paragraph is unnecessary and has created unintended and unhelpful consequences
Uniform Civil Procedure Rules 1999 (Qld), r 151(1), r 171
Campbell v Turner [2008] QCA 126, cited
Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187, cited
Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248, cited
Hagan v Waterhouse (No 2) (1991) 34 NSWLR 308, cited
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, followed
Herrod v Johnston (2013) 2 Qd R 102; [2012] QCA 360, followed
Nominal Defendant v Manning (2000) 50 NSWLR 139, citedCOUNSEL:
S Couper QC, with N J Derrington, for the plaintiff
M R Hodge QC, with D L Tay, for the first defendant, second defendant and the first-named fifth defendantSOLICITORS:
Russells for the plaintiff
Bartley Cohen for the first defendant, second defendant and the first-named fifth defendantBackground
On 30 July 2021, an Order was made determining the respective entitlements of Equititrust Limited (Receivers and Managers Appointed) (In Liquidation) (the plaintiff) and David Robert Walker Tucker[1] and Tuckerloan Pty Ltd[2] (the Tucker defendants) in respect of the interlocutory relief sought in an application filed in this proceeding on behalf of the Tucker defendants on 29 July 2021 (the Tucker defendants’ application) seeking…
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- AGLC
- Equititrust Limited v Tucker [2021] QSC 188
- Case
- [2021] QSC 188
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether subparagraph 131(g) of the plaintiff's fourth further amended statement of claim should be struck out. The plaintiff argued that this subpart was unnecessary, had caused prejudice, and had unintended consequences, leading to delays in the proceedings. The plaintiff contended that the court could presume certain legal entitlements without having to prove the matters alleged in subparagraph 131(g).
The court found that subparagraph 131(g) was indeed unnecessary and had led to unhelpful consequences, including causing prejudice and delay. The court ruled that the plaintiff was entitled to a presumption in law without having to prove the matters alleged in subparagraph 131(g). Consequently, the court ordered that subparagraph 131(g) be struck out with leave to replead. The plaintiff was required to file and serve any fifth further amended statement of claim by 4pm on 6 August 2021. The costs of the application filed on 29 July 2021 were to be borne by each party in the proceeding. The application filed on 23 July 2021 was adjourned until 10am on 26 August 2021, with the costs of that application reserved.
Orders
Orders of the court
THE ORDER OF THE COURT IS THAT:
1. Subparagraph 131(g) of the fourth further amended statement of claim is struck out with leave to replead.
2. The plaintiff is to file and serve any fifth further amended statement of claim by 4pm on
6 August 2021.
3. The costs of the application filed 29 July 2021 are each party’s costs in the proceeding.
4. The application filed 23 July 2021 is adjourned until 10am on 26 August 2021.
5. The costs of the application filed 23 July 2021 are reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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