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
McMeekin J: This is an application to amend the Claim and Statement of Claim in these proceedings.
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.
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 .
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…
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- AGLC
- Moore v Devanjul Pty Ltd [2012] QSC 66
- Case
- [2012] QSC 66
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the plaintiff's application to amend the pleadings should be granted, particularly in light of the procedural requirements outlined in the Uniform Civil Procedure Rules 1999 (Qld). The court needed to consider whether the plaintiff had acted promptly in seeking to rectify the errors and whether the amendments proposed were reasonable and would not cause undue prejudice to the defendant. Furthermore, the court had to assess whether the proposed amendments complied with the procedural requirements of the Uniform Civil Procedure Rules 1999 (Qld).
The court considered the plaintiff's application to amend the pleadings and the defendant's opposition. The court acknowledged that the plaintiff had not complied with the procedural requirements of the Uniform Civil Procedure Rules 1999 (Qld) in their initial application. However, the court recognised the plaintiff's efforts to rectify the errors and their willingness to comply with the procedural requirements moving forward. The court concluded that the plaintiff's application to amend the pleadings should be granted, provided that the plaintiff complied with the procedural requirements of the Uniform Civil Procedure Rules 1999 (Qld) in their subsequent application. The court adjourned the application to the sittings of the Circuit Court in Bundaberg commencing 8 May 2102 to allow the plaintiff to make the necessary amendments and comply with the procedural requirements.
No order was made as to costs.
Orders
Orders of the court
1. The Application is adjourned to the sittings of the Circuit Court in Bundaberg commencing 8 May 2102.
2. No order as to costs
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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