Hoggett v O'Rourke

[2000] QSC 387

SUPREME COURT OF QUEENSLAND

CITATION:

Hoggett & Ors v O’Rourke & Anor [2000] QSC 387

PARTIES:

KENNETH JOHN HOGGETT
(first applicant)
STUART GRANT SMITH
(second applicant)
CRUISON PTY LTD ACN 084 869 901
(third applicant)
WOODSANDS PTY LTD ACN 009 840 395
(fourth applicant)
v
BARRY KEVIN O’ROURKE
(first respondent)
THEWTON NOMINEES PTY LTD ACN 006 085 507
(second respondent)

AND BY COUNTER‑CLAIM

THEWTON NOMINEES PTY LTD ACN 006 085 507
(applicant)
KENNETH JOHN HOGGETT
(first respondent)
STUART GRANT SMITH
(second respondent)
CRUISON PTY LTD ACN 084 869 901
(third respondent)
CHIERON HOLDINGS LIMITED ACN 009 132 656
(fourth respondent)

FILE NO/S:

S11510 of 1999

DIVISION:

Trial Division

DELIVERED ON:

2^nd November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6^th October 2000

JUDGE:

Holmes J

ORDER:

Paragraphs 8 to 26 inclusive of the statement of claim together with the relief sought at paragraph (a) be struck out.

CATCHWORDS:

SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – Striking Out of  Provisions in Statement of Claim relying upon Unstamped Document

COUNSEL:

R. I. M. Lilley for the Applicant
A. J. H. Morris QC for the Respondent

SOLICITORS:

Deacons Graham & James for the Applicant
Sciacca & Co for the Respondent

1. HOLMES J:  The respondents to this action are the applicants here, but to avoid confusion I shall continue to refer to them as the respondents. They  seek orders that the applicants’ action be struck out or, alternatively, that their claims be dismissed and judgment entered for the respondents.  They also seek, insofar as it may be necessary to give effect to the latter order, leave to withdraw certain admissions made in their further amended defence and counterclaim.  The respondents’ application also asks for judgment on their counterclaim, but Mr Lilley, who appeared for them, indicated that he did not wish at this stage to pursue that part of their application. He sought instead directions in respect of the counterclaim. The application turned on the contention that, because a share sale agreement at the heart of the applicants’ claim was not stamped, no reasonable cause of action was disclosed.

The first part of the statement of claim

1. It is necessary to outline something of the background of the primary application, which seeks declarations and injunctions.  The first and second applicants are directors of the third applicant, Cruison Pty Ltd, and the fourth applicant, Woodsands Pty Ltd. The first part of the statement of claim deals, broadly speaking, with an agreement by which Cruison was to sell to a company, Chieron Holdings Limited (one of the directors of which was, at the relevant time, Mr O’Rourke, the first respondent) 1,200 shares in Brisbane Cruise Port Pty Ltd, one of the subsidiaries of which was Woodsands Pty Ltd, the fourth applicant.  The consideration for that sale was the transfer of 85,714,286 ordinary shares in Chieron to Cruison. From the parties’ submissions it appears that the ambition of the principals of Cruison was the development, through Brisbane Cruise Port Pty Ltd,…