Equititrust Limited v Tucker - [2021] QSC 188

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, cited

COUNSEL:

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 defendant

SOLICITORS:

Russells for the plaintiff
Bartley Cohen for the first defendant, second defendant and the first-named fifth defendant

Background

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…

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 Equititrust Limited v Tucker

Details

AGLC: Equititrust Limited v Tucker [2021] QSC 188
Case: [2021] QSC 188
Decision Date: 30 July 2021

CaseChat Overview and Summary

The case of Equititrust Limited v Tucker involved a dispute where the plaintiff, Equititrust Limited, sought to strike out a specific subpart of their amended statement of claim, arguing it was unnecessary and had led to unintended consequences. The matter was heard in the Supreme Court of Victoria. The defendant, Tucker, contested the plaintiff's application.

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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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, cited
COUNSEL:	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 defendant
SOLICITORS:	Russells for the plaintiff Bartley Cohen for the first defendant, second defendant and the first-named fifth defendant