Grace Buncle Pty Ltd v Ralph Lauren 57 Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Grace Buncle Pty Ltd & Anor v Ralph Lauren 57 Pty Ltd & Ors [2020] QSC 182
PARTIES:

GRACE BUNCLE PTY LTD AS TRUSTEE OF THE CINDY FLEMING TRUST
ACN 605 600 959
(plaintiff/first applicant)
MICHAEL PATRICK CONLEY AS ADMINISTRATOR OF THE ESTATE OF CINDY ANN FLEMING
(second applicant)
v
RALPH LAUREN 57 PTY LTD IN ITS OWN CAPACITY AND AS TRUSTEE OF THE JOHN JAMES TRUST, THE BRETT GRAHAM TRUST, THE LISA CLOWES TRUST, THE 171 ROBERTSON STREET UNIT TRUST, THE DOUGLAS AND MISAKO JAMES DISCRETIONARY TRUST, THE LISA CLOWES DISCRETIONARY TRUST, THE SIMON AND LISA CLOWES DISCRETIONARY TRUST, THE CINDY FLEMING CENTRO UNIT TRUST, THE AARON FLEMING CENTRO UNIT TRUST, THE JORDIN FLEMING CENTRO UNIT TRUST, THE KEATON FLEMING CENTRO UNIT TRUST, THE TRISTAN FLEMING CENTRO UNIT TRUST, THE DOUGLAS JAMES CENTRO UNIT TRUST, THE MISAKO JAMES CENTRO UNIT TRUST, THE JOHN JAMES CENTRO UNIT TRUST, THE DAVID JAMES CENTRO UNIT TRUST, THE LISA CLOWES CENTRO UNIT TRUST, THE SIMON CLOWES CENTRO UNIT TRUST, THE BELLA CLOWES CENTRO UNIT TRUST AND THE MAX CLOWES CENTRO UNIT TRUST
ACN 079 745 056
(first respondent)
ROBERT JOHN JAMES
(second respondent)
JAMES MURRAY FORBES AND KYLIE MAREE FORBES AS TRUSTEES OF THE CRU TRUST
(third respondents)
DOMINIC JOHN WING AS TRUSTEE OF THE WING FAMILY TRUST
(fourth respondent)

SIMON LUCAS CLOWES AND LISA MICHELLE CLOWES

(fifth respondents)

RALPH LAUREN PTY LTD IN ITS OWN CAPACITY AND AS TRUSTEE OF THE RALPH LAUREN UNIT TRUST

ACN 010 941 616
(sixth respondent)
RALPH LAUREN 33 PTY LTD IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE 27 COMMERCIAL ROAD TRUST
ACN 089 012 484
(seventh respondent)
AVENTINE REAL ESTATE LTD
ARBN 086 748 898
(eighth respondent)
SPV BRISBANE PTY LTD IN ITS OWN CAPACITY AND AS TRUSTEE OF THE ACJD FAMILY TRUST AND THE 29 DOGGETT STREET TRUST
ACN 124 684 564
(ninth respondent)
NORBERT CALABRO

(tenth respondent)
FILE NO/S:

BS No 4589 of 2016
BS No 4849 of 2016

BS No 6557 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application
ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2019

JUDGE:

Bradley J

ORDER:

I will hear from the parties as to the form of the orders that should be made.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS – CONSOLIDATION OF PROCEEDINGS – where the plaintiff, as trustee of a trust, commenced three separate proceedings involving the first respondent in various of its capacities as a defendant – where the plaintiff alleges a previous trustee of the trust entered into numerous partnerships with, amongst others, the first respondent in various of its capacities – where the plaintiff seeks to consolidate the proceedings to allege the existence of those partnerships, and other partnerships involving additional parties, in a single proceeding – whether the involvement of the plaintiff and first respondent in each existing proceeding, and certain…

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Details
Case
[2020] QSC 182
Decision Date

CaseChat Overview and Summary

The case of Grace Buncle Pty Ltd v Ralph Lauren 57 Pty Ltd involves a dispute between the plaintiff, Grace Buncle Pty Ltd (GB), and various defendants, including Ralph Lauren 57 Pty Ltd (RL57), over allegations of partnerships and breaches of fiduciary duties. The proceedings were initiated in the Supreme Court of Queensland, where GB sought to consolidate three separate actions involving RL57 and other defendants into a single consolidated proceeding.

The primary legal issues addressed by the court were whether the consolidation of the proceedings was appropriate under the Uniform Civil Procedure Rules, whether additional parties should be included in the consolidated proceeding, and whether leave should be granted to proceed with the consolidated claims. The court also considered whether a stale claim should be renewed.

In its reasoning, the court noted that while consolidation of proceedings can be an efficient tool, it must be exercised judiciously to ensure fairness to all parties. The court found that the distinct nature of the claims and the involvement of numerous parties did not necessarily warrant consolidation as it would not save time or expense for the parties. Moreover, the court was concerned about the fairness to less significant parties if the proceedings were consolidated. Consequently, the court declined to order consolidation. The court also concluded that there was no reason to include additional parties in the consolidated proceeding as the consolidation order itself would not be made. Regarding leave to proceed, the court acknowledged that no steps had been taken in the proceedings since 2017, but it decided to hear from the parties regarding the form of the orders to be made.

Orders

Orders of the court

I will hear from the parties as to the form of the orders that should be made.

Background

Background to the litigation

The defendants, and the proposed new defendants who appeared, opposed the orders sought by GB.Background The common origin of the matters in dispute is the personal relationship between Cindy Ann Fleming and Robert John James that endured from July 2002 to May 2009. According to GB’s proposed consolidated pleading, Ms Fleming married Michael Patrick Conley on 4 September 2010.[2] From about 2011, Ms Fleming and Mr James were parties to a proceeding in the Family Court of Australia (the Family Court Proceeding). [2]GB and Mr Conley seek to include Mr Conley as a second plaintiff in a consolidated proceeding. On 3 September 2014, Ms Fleming died intestate. On 14 October 2014, the court appointed Mr Conley as administrator of her deceased estate, pursuant to a grant of letters of administration. From about 2002 until her death, Ms Fleming had been the trustee of the CFT. On 29 October 2014, Mr Conley was appointed trustee of the CFT. On 4 May 2015, Mr Conley retired and GB was appointed trustee of the CFT. On 11 August 2015, the Family Court Proceeding was compromised.The first proceeding On 9 May 2016, GB commenced the first proceeding against Ralph Lauren 57 Pty Ltd (RL57) as trustee of a discretionary trust, the John James Trust (the JJT). In it, GB alleges a partnership (the CFT/JJT Partnership) between Ms Fleming, as trustee of the CFT, and RL57 (by Mr James), as trustee of the JJT, made by an oral agreement. GB alleges RL57 breached fiduciary obligations and failed to keep accurate partnership records. GB seeks a declaration that the CFT/JJT Partnership was dissolved on the death of Ms Fleming, and orders for the appointment of statutory trustees for sale of the real property of the partnership, receivers of the other property of the partnership and special referees to take an account of the partnership, amongst other relief. GB alleges there are six real properties owned by the partnership: two in Queen Street, one in Fortitude Valley and three at Southport. RL57 denies the alleged oral partnership agreement, and denies there was a partnership or, alternatively, denies that the partnership has been dissolved. RL57 alleges an oral agreement about the initial investment by Ms Fleming, through the CFT, in real property acquired by Mr James, through RL57 as trustee of the JJT, and three subsequent oral loan agreements between the two. The investment and each of the loans is alleged to have been for a term of 10 years. RL57 denies any breach of fiduciary obligation. RL57 says a number of matters alleged by GB involve personal entitlements of Ms Fleming in respect of the principal place of residence she shared with Mr James, which RL57 says were compromised in the Family Court Proceeding.The second proceeding On 13 May 2016, four days after the first proceeding was commenced, GB commenced the second proceeding. It named two defendants: RL57, as trustee of 13 unit trusts (the Centro Unit Trusts)[3] and three discretionary trusts;[4] and Mr James, in his personal capacity. GB alleges Ms Fleming, as trustee of the CFT, and RL57, as trustee of each of the three discretionary trusts, were in another partnership (the Centro 3 4 6 Partnership) for the holding or development of real property in James Street, Fortitude Valley.[3]There are 13 Centro Unit Trusts: the Cindy Fleming Centro Unit Trust, the Aaron Fleming Centro Unit Trust, the Jordin Fleming Centro Unit Trust, the Keaton Fleming Centro Unit Trust, the Tristan Fleming Centro Unit Trust, the Douglas James Centro Unit Trust, the Misako James Centro Unit Trust, the John James Centro Unit Trust, the David James Centro Unit Trust, the Lisa Clowes Centro Unit Trust, the Simon Clowes Centro Unit Trust, the Bella Clowes Centro Unit Trust and the Max Clowes Centro Unit Trust.[4]The Douglas and Misako James Discretionary Trust, the Lisa Clowes Discretionary Trust and the Simon and Lisa Clowes Discretionary Trust. Together, RL57, as trustee of each discretionary trust, and Ms Fleming, as trustee of the CFT, initially held all of the units in each of the Centro Unit Trusts.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Other complications were raised by the James Parties in written submissions. These included: that some new causes of action found in the consolidated pleading are statute barred; and that the use GB proposes to make of documents produced or disclosed in the Family Court Proceeding is improper.[26] They also raised the alleged need for some further particulars of the consolidated pleading. GB joined issue with the James Parties on each of these matters. In view of the conclusion I have reached on the topic of consolidation, it is not necessary to deal with them at this time.[26]Given the inclusion of so many other defendants – each foreign to the proceeding in the Family Court – the James Parties say GB may need leave of the Family Court, which it does not appear to have sought or obtained.Conclusion on consolidation Taking all matters into account, I am not satisfied that it is appropriate to order consolidation. The application is not plainly within the scope of the power conferred by r 78. I am not satisfied that consolidation of the proceedings would save time or expense for the parties. The distinct claims and parties do not signal any saving in the time taken to try all of GB’s claims. Appropriate orders are available to take advantage of any available time savings. There are valid concerns about the fairness of a consolidated proceeding for the less significant proposed parties. It follows that the exercise of a more general power to consolidate is not justified. With the prospect of consolidation vanquished, the parties ought to be able to progress the TIC and proceed to a resolution of their disputes, whether by trial or other process, without undue delay. If GB no longer wishes to pursue some of its existing claims, that will also shorten the existing proceedings. If GB wishes to pursue new claims – subject to the effect of its earlier compromise and any relevant time limitation – it should do so promptly, in the manner it may be advised. The orders for consolidation should be refused.Joinder of new parties As the consolidation order is not to be made, there is no reason to order the inclusion of additional parties as defendants to a consolidated proceeding. On 14 February 2017, GB filed an application to include ten new parties in the first proceeding. These included the Non-James Parties. That day, GB also filed an application to include Mr Calabro as a party to the second proceeding. On 10 March 2017, both these applications were adjourned to a date to be fixed with costs reserved. In its proposed form of orders, GB proposed that these applications be “otherwise dismissed”. That is not opposed by the Non-James Parties or Mr Calabro. GB and Mr Conley pressed his inclusion, in order to take advantage of statutory rights conferred on him in his capacity as administrator of the Estate of the late Ms Fleming. He could be included as a second plaintiff in existing proceedings on that basis.Leave to proceed In written submissions filed and served for the 5 September 2019 hearing, the James Parties contended that no step had been taken in the first or second proceeding since 9 March 2017, so that leave to proceed was required pursuant to r 389(2).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.