Montgomery v Pickard - [2006] QSC 373

SUPREME COURT OF QUEENSLAND

CITATION:

Montgomery v Pickard & Ors [2006] QSC 373

PARTIES:

WILLIAM FRASER MONTGOMERY

(Plaintiff)

AND

KEN PICKARD

(First Defendant)

and

MTW NO 2 PTY LTD (ACN 070 017 391)

(Second Defendant)

and

MTW NO 1 PTY LTD (ACN 070 321 372)

FILE NO/S:

S184/03

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Townsville

DELIVERED ON:

8 December 2006

DELIVERED AT:

Townsville

HEARING DATE:

5 December 2006

JUDGES:

Cullinane J

ORDER:

That William Fraser Montgomery and Sally Teoh Motgomery as trustees in the Montgomery Superannuation Fund and Nan-Frae Holdings Pty Ltd be added as parties to the action.

The action by the trustees and Nan-Frae Holdings Pty Ltd be taken to have started when the amended statement of claim is filed.

The applicants pay the respondents’ costs of and incidental to the application to be assessed.

CATCHWORDS:

JOINDER OF PARTIES – Applicants claim to have made certain payments claimed in present action by existing plaintiff – Whether Rule 69 (2)(iii) applicable – Whether evidence is prejudice to Defendants.

Rule 69 and Rule 376(3) Uniform Civil Procedure Rules
Althaus v Australia Meat Holdings Pty Limited [2006] QCA 412, cited
Bridge Shipping Ltd v Grand Shipping SIE (1991) 173 CLR 231, cited
Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541, adopted.

COUNSEL:

Mr Michael Jonsson for the Applicant

Mr Farrell for the Respondent

SOLICITORS:

Boulton, Cleary and Kern for the Applicant

Brian Bartley & Associates for the Respondent

This is an application pursuant to both Rule 69 and Rule 376(3) of the Uniform Civil Procedure Rules to add two parties, namely Sally Teoh Montgomery as trustee of the Montgomery Superannuation Fund and Nan-Frae Holdings Pty Ltd as second and third plaintiffs respectively. It is also an application to add the existing plaintiff, William Fraser Montgomery as a second plaintiff in the capacity of trustee of the Montgomery Superannuation Fund with Sally Teoh Montgomery.

When the action was commenced it was commenced solely in the name of William Fraser Montgomery in his personal capacity.

The statement of claim as it was delivered alleges that the first defendant was the plaintiff's accountant as well as a director and shareholder of the second and third defendant and a unit holder in the unit trust of which the third defendant was the trustee.

It alleged that the first defendant made certain representations to and gave certain advice to the first plaintiff as a result of which monies were invested by the plaintiff in acquiring 700 units in the unit trust which monies have been lost.

It is also alleged that further representations were made by the first defendant (who it is alleged was at all material times acting on behalf of himself and the other defendants) as a result of which further monies were invested described as payments on behalf of the business which is described as Motor Traders Warranty Association whose assets were held by the unit trust.

A number of causes of action were…

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.

Keep reading for free

Create a free CaseChat account to read Montgomery v Pickard and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] QSC 373
Decision Date: 8 December 2006

CaseChat Overview and Summary

The matter before the court involved an application to add parties to an existing proceeding. The original plaintiff sought to recover certain payments, and the applicants, who claim to have made these payments, sought to be joined as parties to the action. The applicants argued that they should be added under Rule 69 (2)(iii) of the relevant procedural rules. The defendants, however, opposed the application, claiming that the addition of the applicants as parties would be prejudicial and that the evidence provided was insufficient.

The legal issues before the court centred on the interpretation and application of Rule 69 (2)(iii) and whether the addition of the applicants as parties would prejudice the defendants. The court had to determine whether the applicants had a legitimate claim to be joined as parties and whether the evidence provided was sufficient to support this claim. Additionally, the court had to assess whether the addition of the applicants as parties would cause prejudice to the defendants, as claimed.

The court found that the applicants had a legitimate claim to be joined as parties under Rule 69 (2)(iii), as they had made the payments in question. The evidence provided by the applicants was deemed sufficient to support their claim. However, the court also found that the addition of the applicants as parties would not prejudice the defendants, as the defendants had already been aware of the applicants' involvement in the matter. The court therefore granted the application and ordered that the applicants be added as parties to the action, with the action by the trustees and Nan-Frae Holdings Pty Ltd to be taken as starting when the amended statement of claim is filed.

The court also ordered that the applicants pay the respondents’ costs of and incidental to the application to be assessed. The decision highlights the importance of properly joining parties in legal proceedings and the court's willingness to consider applications to add parties where appropriate.

Orders

Orders of the court

That William Fraser Montgomery and Sally Teoh Motgomery as trustees in the Montgomery Superannuation Fund and Nan-Frae Holdings Pty Ltd be added as parties to the action.

The action by the trustees and Nan-Frae Holdings Pty Ltd be taken to have started when the amended statement of claim is filed.

The applicants pay the respondents’ costs of and incidental to the application to be assessed.

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:	Montgomery v Pickard & Ors [2006] QSC 373
PARTIES:	WILLIAM FRASER MONTGOMERY (Plaintiff) AND KEN PICKARD (First Defendant) and MTW NO 2 PTY LTD (ACN 070 017 391) (Second Defendant) and MTW NO 1 PTY LTD (ACN 070 321 372)
FILE NO/S:	S184/03
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Townsville
DELIVERED ON:	8 December 2006
DELIVERED AT:	Townsville
HEARING DATE:	5 December 2006
JUDGES:	Cullinane J
ORDER:	That William Fraser Montgomery and Sally Teoh Motgomery as trustees in the Montgomery Superannuation Fund and Nan-Frae Holdings Pty Ltd be added as parties to the action. The action by the trustees and Nan-Frae Holdings Pty Ltd be taken to have started when the amended statement of claim is filed. The applicants pay the respondents’ costs of and incidental to the application to be assessed.
CATCHWORDS:	JOINDER OF PARTIES – Applicants claim to have made certain payments claimed in present action by existing plaintiff – Whether Rule 69 (2)(iii) applicable – Whether evidence is prejudice to Defendants. Rule 69 and Rule 376(3) Uniform Civil Procedure Rules Althaus v Australia Meat Holdings Pty Limited [2006] QCA 412, cited Bridge Shipping Ltd v Grand Shipping SIE (1991) 173 CLR 231, cited Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541, adopted.
COUNSEL:	Mr Michael Jonsson for the Applicant Mr Farrell for the Respondent
SOLICITORS:	Boulton, Cleary and Kern for the Applicant Brian Bartley & Associates for the Respondent