Lex Nominees Pty Ltd (in liq) v. Triscott

[2007] QSC 170

[2007] QSC 170

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 7566 of 2006

LEX NOMINEES PTY LTD (IN LIQUIDATION) (ACN 073 985 903)	Plaintiff
and
PAUL ANTHONY TRISCOTT	Defendant

No 7569 of 2006

LEX NOMINEES PTY LTD (IN LIQUIDATION) (ACN 073 985 903)	Applicant
and
PAUL ANTHONY TRISCOTT	First Respondent
and
ST PAUL TRAVELLERS INSURANCE COMPANY LIMITED	Second Respondent

No 8313 of 2006

LEX NOMINEES PTY LTD (IN LIQUIDATION) (ACN 073 985 903)	Applicant
and
PAUL ANTHONY TRISCOTT	First Respondent
and
ST PAUL TRAVELLERS INSURANCE COMPANY LIMITED	Second Respondent

BRISBANE

..DATE 15/05/2007

ORDER

HER HONOUR:  This application is an application for the joinder of two additional plaintiffs in three matters, 7566 of 06, 7569 of 06 and 8313 of 06.  The plaintiffs sought to be joined as second plaintiffs are Mr Khatri and Mr Peldan, who are the liquidators of the current plaintiff. 

The current plaintiff was the mortgagee in a solicitors' lending scheme.  The first defendant was the former solicitor for the plaintiff and also a director of the plaintiff.  He is now bankrupt, and leave has been granted by the Federal Court to commence proceedings against him.

Proceedings were commenced with the first defendant as the only defendant in September 2006.  The second defendant is the professional indemnity insurer of the first defendant and was joined in this action by consent on 17 April 2007.  On the previous day, 16 April 2007, the second defendant, who is the effective respondent to this application, confirmed its consent to the orders to which I have referred joining it and raising that, in their view, the plaintiff was not the correct plaintiff.

The applicants do not concede that the plaintiff was not the correct plaintiff however, out of an abundance of caution, seek now to be added as plaintiffs.  That application was filed on 1 May 2007, so very promptly upon the joinder of the second defendant and on receipt of the letter questioning the correctness of the identity of the plaintiff.

The respondent concedes that the applicant falls within rule 69(2) and that the proposed plaintiffs are necessary parties to the proceeding.  Rule 69(1) provides that any such person may be included as a party.  It should be noted that that is a discretionary power in the Court.  Ordinarily, of course, a Court would have regard to the utility of joining a party if the limitation period had run and there was therefore no utility in the proceedings continuing with the new parties. 

That matter is dealt with in rule 74, which provides the procedure for amendment of proceedings, once a new party has been added or changed.  Rule 74(4) provides that if an order is made including or substituting a person as a defendant or respondent, the proceedings against the new defendant or respondent starts on the filing of the amended copy of the originating process.

Rule 74(5) was an exception to that rule about the defendant with regard to the limitation period, but was in 2004 amended so that it applies to the joinder of any new party.  It provides that, for a limitation period, a proceeding by or against a new party is taken to have started when the original proceeding started unless the Court orders otherwise.

It is clear from that statement of the rule that the usual case would be that the limitation period is to be taken as having been until the original proceeding started.  The utility of that rule is that, notwithstanding the end of a limitation period if the proceeding were taken to have been started at a later date, the action is determined on the basis that the whole action commenced when the original proceeding started. 

There is a discretion in the Court under sub-rule (5) to order otherwise.  The defendant in this case has argued that I should so order to displace the usual rule because it is arguable that the limitation period ended between the commencement of the proceedings in September 2006 and the joinder of the defendant as a party. 

I note that there was no condition imposed on the joinder of the second defendant as a party with regard to any limitation period.

With regard to the proposed second plaintiffs, the cause of action by them is no different in that they are the liquidators of the plaintiff and, if they have a cause of action, it is because they stand in the shoes of the company, whether as liquidators or, as has been raised, perhaps as trustees.  I have taken that matter into account.  This is not in my view sufficient to displace the usual rule 

The second matter they raise is the lack of adequate explanation for failing to commence the proceedings in the name of the proposed second plaintiffs.  An explanation is given by Mr Khatri as to why the proceedings were started in the name of the plaintiff.  He remains of the view that the first plaintiff, as that party will become, is the appropriate plaintiff.  However, out of an abundance of caution, he wishes, the matter having been raised by the second defendant, to nevertheless join the proposed second plaintiffs.

It does appear to me - and it was not contested - that it is desirable, just and convenient to have the second plaintiffs there to enable the Court to adjudicate effectually and completely on all the matters in dispute connected with the proceeding. 

It seems to me there has been no delay at all in the matter being raised by the second defendant and the plaintiff taking action to join the second plaintiffs.  Further, there has been very little delay since the beginning of the action.  True it is that the proposed second plaintiffs have taken action in other cases in their own names as well as the plaintiff's name, but that does not appear to me to be determinative. 

In my view, taking all the matters into account, it is not appropriate to order otherwise than that, in accordance with rule 74(5), for the limitation period a proceeding by the new plaintiffs is taken to have started when the original proceedings started; that is, in September 2006.  I will make the orders as per the drafts handed up, as amended and initialled by me; that is, the deletion of the condition found in the draft orders in paragraph 1.

...
HER HONOUR:  In each matter, the costs order will be the costs fixed at $1600 be costs in the cause.

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