Moore v Devanjul Pty Ltd

[2012] QSC 66

SUPREME COURT OF QUEENSLAND

CITATION:

Moore v Devanjul Pty Ltd & Ors  [2012] QSC 66

PARTIES:

STANLEY WILLIAM GORDON MOORE

(Plaintiff)

v

DEVANJUL PTY LTD

A.C.N. 117 644 0087 AS TRUSTEE

(First Defendant)

AND

VANESSA RUTH BERTHELSEN

(Second Defendant)

AND

DEREK BURNETT BERTHELSEN

(Third Defendant)

AND

DAVID EDGAR WILSON

(Fourth Defendant)

AND

VANESSA RUTH BERTHELSEN AS TRUSTEE of the JADVEK BERTHELSEN FAMILY TRUST

(Fifth Defendant)

FILE NO/S:

21/2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Bundaberg

DELIVERED ON:

22 March 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

9 March 2012

JUDGE:

McMeekin J

ORDER:

1.   The Application is adjourned to the sittings of the Circuit Court in Bundaberg commencing 8 May 2102.

2.   No order as to costs

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT - where application to amend Claim and Statement of Claim - where errors in pleadings - whether paragraphs of pleadings should be struck out - where Uniform Civil Procedure Rules 1999 have not been complied with

Uniform Civil Procedure Rules 1999 (Qld) rr18, 22, 150, 155

Corporations Act 2001 (C’th) ss197, 601AH

COUNSEL:

R Clutterbuck for the applicant

Second Defendant in person

No appearance by the third and fourth defendants

SOLICITORS:

Carswell & Company for the applicant

Second Defendant in person

1. McMeekin J: This is an application to amend the Claim and Statement of Claim in these proceedings.

1. As the Claim presently stands it shows the plaintiff as one Stanley Gordon William Moore. He claims damages in the sum of $200,000 together with exemplary damages, interest and costs against each of five defendants. There is no further identification of the cause of action in the Claim. While the Claim is admirably brief and plainly identifies the remedy sought it does not identify the “nature of the claim made” as I think r 22 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) intended. While not entirely clear I think the claim is for damages for breach of the covenants in a lease, trespass, and conversion of property.

1. In the course of submissions it became apparent that the plaintiff is misdescribed – he sues not in his personal capacity but rather as trustee of the Moore Investment Trust. That he acted as trustee is pleaded in paragraph 1 of the Statement of Claim. Rule 18 UCPR requires that the representative capacity be stated on the originating process. It is not. The proposed amendments do not correct the error .

1. There are further problems with the Claim. The first defendant is identified as “Devanjul Pty Ltd as Trustee”. What the company might be trustee of is not explained in the heading and indeed not entirely clear from the facts pleaded either. It is alleged in paragraph 1(b) of the Statement of Claim that the company is “capable of being sued both in its own name and as trustee for the Jadvek Berthelsen Family Trust” yet nowhere is it alleged that it was, at any material time, the…