Macquarie Bank Limited v Lin - [2001] QSC 341

SUPREME COURT OF QUEENSLAND

CITATION: Macquarie Bank Limited v Fu-Shun Lin and Ors [2001] QSC 341

PARTIES: MACQUARIE BANK LIMITED ACN 008 583 542
(applicant)
v
FU-SHUN LIN and PAO-LAN CHANG LIN
(first respondents)
and
KONRAD LIN
(second respondent)

FILE NO/S: S 8124 of 2001

DIVISION: Trial Division

PROCEEDING: Application

ORIGINATING COURT:
Brisbane

DELIVERED ON: 20 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 14 September 2001

JUDGE: Holmes J

ORDER: The applicant be included as second defendant in claim S7421 of 2001.

CATCHWORDS:
PRACTICE AND PROCEDURE – JOINDER OF PARTIES
Application for joinder as defendant to application for declaration of trust and vesting orders – whether proposed defendant’s presence “necessary” under Uniform Civil Procedure Rule 69(1)(b)(i) – whether “desirable, just and convenient” under Uniform Civil Procedure Rule 69(1)(b)(ii) – whether proper contradictor to application for declaration exists.
Trusts Act 1973
Uniform Civil Procedure Rules 1999
Supreme Court Rules
Rules of Supreme Court(UK)
Rules of Procedures in Civil Proceedings (Vic)

London Passenger Transport Board v Moscrop
[1942] AC 332
Re McKenzie [1974] Qd R 171
Vandervell Trustees Ltd v White [1971] AC 912
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
News Ltd v Australian Rugby Football League Ltd
(1996) 64 FCR 410 524-525
Pullen v Abalcheck Pty Ltd (1990) 20 NSWLR 732
NSW Aboriginal Land Council v Ralchester Pty Ltd
[2001] NSWSC 479
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
Interchase Corporation Ltd (in liq) v FAI Insurance Co Ltd [2000] 2 Qd R 301
Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 cited in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
CE Heath Casualty & General Insurance Ltd v Pyramid Building Society (in liquidation) [1997] 2 VR 256
Boral Resources Pty Ltd v Robak Engineering & Construction Pty Ltd [1999] 2 VR 507
Sanders Lead Inc v Entores Ltd (1984) 1 WLR 452
Gurtner v Circuit [1968] 2 QB 587
Great Eastern Cleaning Services Pty Ltd
[1978] 2 NSWLR 278

COUNSEL: Mr Bain QC for the applicant
Mr Keane QC for the first respondents
Mr Diercke (solicitor) for the second respondent

SOLICITORS: Hogan Besley Boyd for the applicant
James Conomos Lawyers for the first respondents
O’Shea Corser & Wadley for the second respondent

The applicant bank lent money to Merlin Pacific Developments Pty Ltd to finance a property development. One of the guarantors for the loan was the second respondent, Konrad Lin. Among other matters in a fixed fee facility and guarantee agreement signed by him, he covenanted not to dispose of any interest in a property at 62 Wynnum Road, Norman Park, and not to allow his total net worth to fall below $5 million. His parents, the first respondents, have brought an action claiming a declaration that he holds the Norman Park property on trust – as an express trust, a constructive trust, or a resulting trust – for them, and a vesting order under s 82 of the Trusts…

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.

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Details

Case: [2001] QSC 341
Decision Date: 20 September 2001

CaseChat Overview and Summary

In the case of Macquarie Bank Limited v Lin, the matter before the court was an application for joinder as defendant to an application for a declaration of trust and vesting orders. The applicant, Macquarie Bank Limited, sought to include a new party, referred to as the applicant, as the second defendant in the claim. The primary legal issue before the court was whether the proposed defendant’s presence was necessary under Uniform Civil Procedure Rule 69(1)(b)(i) and whether it was desirable, just, and convenient under Rule 69(1)(b)(ii). Additionally, the court had to determine if the proper contradictor to the application for a declaration existed.

The court carefully considered the arguments presented by both parties regarding the necessity and desirability of the proposed defendant’s inclusion. It examined the implications of the joinder on the existing proceedings and the potential impact on the rights of the parties involved. The court found that the presence of the proposed defendant was necessary to ensure a complete and fair resolution of the issues at hand. Furthermore, it concluded that the joinder was desirable, just, and convenient, as it would allow for a comprehensive determination of the claims and defenses. The court also determined that the proposed defendant was indeed the proper contradictor to the application for a declaration.

The court's decision was that the applicant should be included as the second defendant in the claim. This inclusion was deemed necessary and appropriate to facilitate a complete and fair adjudication of the matters before the court.

Orders

Orders of the court

The applicant be included as second defendant in claim S7421 of 2001.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Macquarie Bank Limited v Fu-Shun Lin and Ors [2001] QSC 341
PARTIES:	MACQUARIE BANK LIMITED ACN 008 583 542 (applicant) v FU-SHUN LIN and PAO-LAN CHANG LIN (first respondents) and KONRAD LIN (second respondent)
FILE NO/S:	S 8124 of 2001
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	20 September 2001
DELIVERED AT:	Brisbane
HEARING DATE:	14 September 2001
JUDGE:	Holmes J
ORDER:	The applicant be included as second defendant in claim S7421 of 2001.
CATCHWORDS:	PRACTICE AND PROCEDURE – JOINDER OF PARTIES Application for joinder as defendant to application for declaration of trust and vesting orders – whether proposed defendant’s presence “necessary” under Uniform Civil Procedure Rule 69(1)(b)(i) – whether “desirable, just and convenient” under Uniform Civil Procedure Rule 69(1)(b)(ii) – whether proper contradictor to application for declaration exists. Trusts Act 1973 Uniform Civil Procedure Rules 1999 Supreme Court Rules Rules of Supreme Court(UK) Rules of Procedures in Civil Proceedings (Vic) London Passenger Transport Board v Moscrop [1942] AC 332 Re McKenzie [1974] Qd R 171 Vandervell Trustees Ltd v White [1971] AC 912 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 524-525 Pullen v Abalcheck Pty Ltd (1990) 20 NSWLR 732 NSW Aboriginal Land Council v Ralchester Pty Ltd [2001] NSWSC 479 Homestyle Pty Ltd v City of Belmont [1999] WASCA 59 Interchase Corporation Ltd (in liq) v FAI Insurance Co Ltd [2000] 2 Qd R 301 Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 cited in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. CE Heath Casualty & General Insurance Ltd v Pyramid Building Society (in liquidation) [1997] 2 VR 256 Boral Resources Pty Ltd v Robak Engineering & Construction Pty Ltd [1999] 2 VR 507 Sanders Lead Inc v Entores Ltd (1984) 1 WLR 452 Gurtner v Circuit [1968] 2 QB 587 Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278
COUNSEL:	Mr Bain QC for the applicant Mr Keane QC for the first respondents Mr Diercke (solicitor) for the second respondent
SOLICITORS:	Hogan Besley Boyd for the applicant James Conomos Lawyers for the first respondents O’Shea Corser & Wadley for the second respondent