SUPREME COURT OF QUEENSLAND
CITATION:
Menkens & Anor v Wintour & Anor [2009] QSC 206
PARTIES:
LEO IGNATIUS GEORGE MENKENS
(First Applicant)REID MATTHEW MENKENS
(Second Applicant)v
ROBERT DESMOND PETER WINTOUR
(First Respondent)NORTH COAST WOOD PANELS PTY LTD ACN 071 968 771
(Second Respondent)FILE NO/S:
BS 1975 of 2006
DIVISION:
Trial Division
PROCEEDING:
Hearing
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
3 August 2009
DELIVERED AT:
Brisbane
HEARING DATE:
14 and 15 April 2009
JUDGE:
McMurdo J
ORDER:
1. The application to strike out paragraphs 10(a)(ii), 10(a)(iii), 26(e) and 31(e) of the Fourth Amended Defence and Counterclaim is dismissed.
2. It is declared that on or about 25 October 2005, the applicants validly exercised an option to purchase the first respondent’s units in accordance with cl 8.14.2 of the Unitholders Deed between the applicants and the first respondent and that the price payable by the applicants to the respondent for those units is the value of such units determined according to cl 10.1 of that Deed
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – where the first respondent pleads that his role was that of an employee and not that of a trustee – where the first respondent further pleads that he did not receive any distribution in the profits of the business and that he was only remunerated as an employee not trustee – where the first respondent specifies the amount of remuneration in his pleaded capacity as employee – whether the matters pleaded are relevant to the question of the scope of the first respondent’s fiduciary duty to the application – whether the paragraphs should be struck out
EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – LIABILITY FOR BREACH OF TRUST – OTHER MATTERS – where the first respondent pleads that the applicants suffered no loss from any breach by the first respondent of its fiduciary duty to the applicants as a number of the clients of the applicants would have transferred their business to the first respondent in any event – where the applicants plead that this is not relevant to a claim for account of profits or for equitable compensation – whether it is relevant to the claim for account of profits to consider the prospect that at least some of the clients would have taken their business to the respondents at some stage – whether it is relevant to the claim for equitable compensation to consider whether the applicants’ loss would have happened but for the breach
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where a letter was received by the first respondent’s solicitors purporting to exercise option – where cl 21.1 of the Deed states that the provisions of s 257 (now s 347) of the Property Law Act 1974 (Qld) “shall apply” to any notice required to be given – where s 347 is not…
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- AGLC
- Menkens v Wintour [2009] QSC 206
- Case
- [2009] QSC 206
- Decision Date
CaseChat Overview and Summary
The court was tasked with several legal issues, including whether the specific matters pleaded by the first respondent regarding his role and remuneration were relevant to the scope of his fiduciary duty, whether certain paragraphs of the defence should be struck out, and the interpretation of certain clauses in the Unitholders Deed. Additionally, the court had to determine whether the applicants' loss was relevant to the claim for account of profits and equitable compensation, and whether a letter received by the first respondent’s solicitors, purporting to exercise an option, complied with the relevant provisions of the Unitholders Deed.
The court found that the first respondent’s pleadings regarding his role and remuneration were relevant to the scope of his fiduciary duty. The court held that the first respondent’s role as an employee or trustee had implications for the extent of his fiduciary obligations. Regarding the validity of the option to purchase, the court determined that the applicants had validly exercised the option in accordance with the Unitholders Deed, and the price payable was determined according to the specified clause. The court also concluded that the first respondent was a unitholder "wishing to dispose" of his units under the terms of the Deed, as he was removed from his office and thus required to dispose of his units.
The court dismissed the application to strike out the relevant paragraphs of the defence and counterclaim. It declared that the applicants validly exercised the option to purchase the first respondent’s units and that the price payable was determined according to the Unitholders Deed. This decision underscores the importance of precise pleadings and the relevance of fiduciary duties and contractual interpretations in such disputes.
Orders
Orders of the court
1. The application to strike out paragraphs 10(a)(ii), 10(a)(iii), 26(e) and 31(e) of the Fourth Amended Defence and Counterclaim is dismissed.
2. It is declared that on or about 25 October 2005, the applicants validly exercised an option to purchase the first respondent’s units in accordance with cl 8.14.2 of the Unitholders Deed between the applicants and the first respondent and that the price payable by the applicants to the respondent for those units is the value of such units determined according to cl 10.1 of that Deed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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