Lewis v CD International Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Lewis & Anor v CD International Pty Ltd & Ors [2005] QDC 300

PARTIES:

THOMAS RODERICK LEWIS

First Plaintiff

And

TRL INVESTMENTS PTY LTD

Second Plaintiff

V

CD INTERNATIONAL PTY LTD

First Defendant

And

JONATHAN CHAFFE

Fourth Defendant

And

DAVID DEROOY

Sixth Defendant

And

SVEN BRUGGMANN

Seventh Defendant

And

MATTHEW CHAFFE

Eighth Defendant

And

LYN MARGARET TAYLOR

Ninth Defendant

And

PETER ANTON BRUGGMANN

Tenth Defendant

And

WILLIAM ALAN CASTLE

First Third Party

And

GRAHAM JOHN DONNELLY

Second Third Party

And

MARK LEONARD SEABROOK

Third Third Party

FILE NO/S:

No BD736 of 2004

DIVISION:

Civil

PROCEEDING:

Application in civil claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2005

JUDGE:

Judge Robin QC, DCJ

ORDER:

Application dismissed, the respondents having leave to amend the third party statement of claim, applicant’s costs to be his costs in the third party proceedings in any event

CATCHWORDS:

Uniform Civil Procedure Rules r 171, r 192 – application by third party to strike out third party statement of claim after removal from it of express reliance on Law Reform Act 1995 s 6 – UCPR held procedural only – defendants granted leave to amend to restore the deleted reference

COUNSEL:

Mr Oliver for applicant third third party
Mr Collins for respondent, 4^th and 6^th to 10^th defendants

SOLICITORS:

Hemming & Hart for the applicant
Fitzwalters for the respondents

1. This is an application by the third third party, Mr Seabrook for striking out of the third party statement of claim against him pursuant to rule 171 (1)(a) on the ground that it discloses no reasonable cause of action against him.  It seeks costs on the standard basis, notwithstanding the reference to indemnity costs in sub-rule (2).  The respondents are the fourth and the sixth to tenth defendants.  The plaintiffs are no longer proceeding against the other three, although two of them, Messrs Castle and Donnelly remain in the proceeding as first and second third parties.  Mr Seabrook was never a defendant.  The nature of the application is such that the assumption should be made that the allegations in the third party statement of claim will be established.

1. The current third party statement of claim is dated 4 September 2005.  It is before the court as an exhibit to Ms Whitehouse’s affidavit.  The plaintiffs are claiming in respect of lost capital provided to and lack of expected returns from investments which failed.  The allegations against the present applicant are: -

“AMENDED THIRD PARTY STATEMENT OF CLAIM

The Fourth Defendant, Sixth Defendant, Seventh Defendant, Eighth Defendant, Ninth Defendant and Tenth Defendant rely upon the following facts in support of the claim.

1.          At all material times
  (a)       the Third Third Party, Mark Leonard Seabrook, was:

(i)        the servant or agent of the First Defendant CD International   Pty Ltd;

(ii)       was a director of the Second Plaintiff from 23^rd March 2000;

(iii)      had control of and managed the affairs of Thomas Lewis,   the…