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Moore v Devanjul Pty Ltd

Moore v Devanjul Pty Ltd

Case [2010] QSC 250 14 July 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

Moore v Devanjul Pty Ltd as Trustee & Ors [2010] QSC 250

PARTIES:

STANLEY GORDON WILLIAM MOORE

(Plaintiff)

v

DEVANJUL PTY LTD (ACN 117 644 087) 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

(Fifth defendant)

and

GEOFFREY PAUL EBERT OF/AND FINEMORE WALTERS & STORY

(Defendant by counterclaim)

FILE NOS:

1890 of 2010

21 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

Bundaberg

DELIVERED ON:

14 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2010

JUDGE:

McMurdo J

ORDER:

The counterclaim filed by the fifth defendant on 2 February 2010 against Geoffrey Paul Ebert and Finemore Walters & Story be struck out.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – APPLICATION TO STRIKE OUT COUNTERCLAIM – where the fifth defendant owns the subject land which she holds as trustee of her family trust –where the plaintiff and his former wife were registered as lessees, holding as trustees, of the subject land – where the plaintiff and his former wife subsequently divorced and she resigned as a trustee but remained registered as a lessee of the subject land – where the defendant by counterclaim has commenced earlier proceedings involving the subject land in the names of the plaintiff and his former wife – where the fifth defendant filed a counterclaim in the current proceedings alleging that the defendant by counterclaim fraudulently concealed the fact that the plaintiff’s former wife had resigned as a trustee and purported to act on her behalf in the earlier proceedings without her instructions, resulting in miscarriages of justice – where the counterclaim also makes serious allegations about the conduct of the defendant by counterclaim – whether the counterclaim should be struck out as disclosing no reasonable cause of action and as scandalous, frivolous or vexatious.

Personal Injuries Proceedings Act 2002 (Qld)
Property Law Act 1974 (Qld) ss 124, 127

Uniform Civil Procedure Rules 1999 (Qld) rr 62, 63, 67, 171

Australian Retail Enterprises Pty Ltd v ND Cowan Nominees Pty Ltd [2000] VSC 538
Business Computers International Ltd v Registrar of Companies & Ors [1988] Ch 229
Conde v Burchill & Horsey Lawyers & Anor [2009] QSC 291
Cran v State of New South Wales & Anor [2004] NSWCA 92
Equus Financial Services Limited v Glengallen Investments Pty Ltd [1994] QCA 157
Ex parte Taylor [1980] Qd R 253
Hill v Van Erp (1997) 188 CLR 159
Kemtron Industries Pty Ltd v Commissioner of Stamp Duties [1984] 1 Qd R 576
Moore & Anor v Devanjul Pty Ltd [2007] QDC 366
Nashvying Pty Ltd & Ors v Giacomi [2007] QCA 454
Orchard v South Eastern Electricity Board [1987] QB 565
Pukeroa v Berkeley Challenge Pty Ltd [2005] 2 Qd R 46
Re Riggs; Ex parte Lovell [1901] 2 KB 16
TM Fairclough & Sons Limited…

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.

Continue reading Moore v Devanjul Pty Ltd

Details

AGLC: Moore v Devanjul Pty Ltd [2010] QSC 250
Case: [2010] QSC 250
Decision Date: 14 July 2010

CaseChat Overview and Summary

In the matter of Moore v Devanjul Pty Ltd, the dispute arose from complex land ownership and leasing arrangements involving multiple parties. The case was heard in the Supreme Court of Queensland, where the plaintiff, Moore, was engaged in litigation against Devanjul Pty Ltd and others, including the fifth defendant, who owns the subject land as trustee of a family trust. Moore and his former wife were registered as lessees of the land, holding it as trustees. Following their divorce, Moore's former wife resigned as a trustee but remained registered as a lessee. The defendant by counterclaim had initiated earlier proceedings involving the same land in the names of Moore and his former wife. The fifth defendant filed a counterclaim alleging that the defendant by counterclaim had fraudulently concealed the fact that Moore's former wife had resigned as a trustee and acted on her behalf without her instructions in the earlier proceedings, causing miscarriages of justice. The counterclaim also contained serious allegations about the conduct of the defendant by counterclaim.

The legal issues before the court included whether the counterclaim should be struck out as it was considered to disclose no reasonable cause of action and whether it was scandalous, frivolous, or vexatious. The court was required to consider the nature and substance of the allegations made in the counterclaim and whether they were legally tenable. Additionally, the court had to determine whether the counterclaim, by its nature, was so improper or scandalous as to warrant being struck out.

The court ruled that the counterclaim should be struck out. The reasoning was based on the determination that the counterclaim did not disclose any reasonable cause of action as it was predicated on the assumption that Moore's former wife had the authority to act on behalf of the trustees in the earlier proceedings, which was not the case. Furthermore, the court found that the counterclaim was scandalous, frivolous, or vexatious as it contained serious allegations that were not substantiated by the facts presented. The court found that the counterclaim was an abuse of the judicial process and did not meet the necessary legal standards.

As a result, the court made an order that the counterclaim filed by the fifth defendant on 2 February 2010 against Geoffrey Paul Ebert and Finemore Walters & Story be struck out.

Orders

Orders of the court

The counterclaim filed by the fifth defendant on 2 February 2010 against Geoffrey Paul Ebert and Finemore Walters & Story be struck out.

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.

Citations

AGLC Citation

Moore v Devanjul Pty Ltd [2010] QSC 250

Most Recent Citation

Moore & Anor v Devanjul Pty Ltd [2010] QDC 353

Cases citing this decision · 6 of 6 shown

DSDJ and Secretary, Department of Social Services (Social services second review)
[2024] AATA 1532

…tatement of Facts, Issues and Contentions 20/02/2024 R3. 3 x NewsMail articles (6 pages) - 20/03/2024 R4. Moore v Devanjul Pty Ltd as Trustee & Ors [2010] QSC 250 - R5. Moore v Devanjul Pty Ltd as Trustee & Ors [2012] QSC 66 - R6. Respondent’s closing submissions 10/04/2024 10/04/2024 A1. Applicant Bundle of Mate…
Hilchrist Pty Ltd v Visual Integrity Pty Ltd
[2018] QDC 97

…B [1947] AC 196 – cited. Moore v Devanjul Pty Ltd [2010] QSC 250 – followed. Noakes v J Harvy Holmes and Son (1979) 37 FLR 5 – cited. Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2010] 1 WLR 1803 – cited. Olsson v Dyson (1969) 120 CLR 365 – cited. Park & McIntosh v Lanray Industries Pty Ltd [2010] QCA 257 – ap…
Dipic v Bunning
[2014] QDC 180 Para 1

…of the UCPR gives discretion to the court to give judgment when parties are incorrectly included or not included: Moon v Devanjul Pty Ltd as Trustee [2010] QSC 250 at [7]. However, that provision refers to additional persons or entities that may have an interesting the outcome of a case, not to the principal par…
Moore v Devanjul Pty Ltd (No 5)
[2013] QSC 323 Para 1

…declaration that there had in fact been no forfeiture given the findings that the purported notice was fatally flawed: Moore v Devanjul Pty Ltd [2010] QSC 250…
Moore v Devanjul Pty Ltd (No 3)
[2012] QSC 355 Para 1

…a declaration that there had in fact been no forfeiture given the findings that the purported notice was fatally flawed: Moore v Devanjul Pty Ltd [2010] QSC 250…
Moore & Anor v Devanjul Pty Ltd
[2010] QDC 353 Para 2

…ge (supra) ; Geilinger v Gibbs [1897] 1 Ch 479. [30] This point was mentioned in related proceedings in the Supreme Court, Moore v Devanjul Pty Ltd [2010] QSC 250 at 21. In that matter the question was different, as to whether there was a valid claim against the solicitors, and the authorities I have cited were n…

View all 6 citing cases →

Cases cited in this decision · 10 of 10 shown

Conde v Burchill and Horsey Lawyers
[2009] QSC 291

…usiness Computers International Ltd v Registrar of Companies & Ors [1988] Ch 229 Conde v Burchill & Horsey Lawyers & Anor [2009] QSC 291 Cran v State of New South Wales & Anor [2004] NSWCA 92 Equus Financial Services Limited v Glengallen Investments Pty Ltd [1994] QCA 157 Ex parte Taylor [1980] Qd R 253 Hill v Va…
Giacomi v Nashvying P/L
[2007] QCA 454 Para 1

…e applicants, appears to have been a deliberate reference to Mr Moore alone. [8][1980] Qd R 253; see also Nashvying Pty Ltd & Ors v Giacomi [2007] QCA 454 at [63].…
Moore v Devanjul Pty Ltd
[2007] QDC 366 Para 1

…s judgment was a reference to Mr Moore alone. This explains then his making orders in favour of “the applicant”. [13] Moore & Anor v Devanjul [2007] QDC 366 at [3].…
Cran v State of New South Wales
[2004] NSWCA 92 Para 1

…he respective positions of the landlord and tenants. [14] Hill v Van Erp (1997) 188 CLR 159 at 187, 237; Cran v State of New South Wales & Anor [2004] NSWCA 92 at [57]. [15] Orchard v South Eastern Electricity Board [1987] QB 565 at 571 per Sir John Donaldson MR; Business Computers International Ltd v Registrar of…
Australian Retail Enterprises Pty Ltd v N D Cowan Nominees Pty Ltd
[2000] VSC 538 Para 1

…e proceedings in the name of Mr Moore alone. [3][1931] 1 Ch 60 at 66. [4]See also Australian Retail Enterprises Pty Ltd v ND Cowan Nominees Pty Ltd [2000] VSC 538 at [34]. [5]Order 3, r 11 of the previous rules of this Court. [6][1994] QCA 157. [7]Citing what was said by Lord Macnaghten in William Brandt’s Sons &…
Hill v Van Erp
[1997] HCA 9 Para 1

…ed the outcome of the District Court proceeding or otherwise affected the respective positions of the landlord and tenants. [14] Hill v Van Erp (1997) 188 CLR 159 at 187, 237; Cran v State of New South Wales & Anor [2004] NSWCA 92 at [57]. [15] Orchard v South Eastern Electricity Board [1987] QB 565 at 571 per Sir Jo…
Equus v. Glengallan
[1994] QCA 157 Para 1

…Australian Retail Enterprises Pty Ltd v ND Cowan Nominees Pty Ltd [2000] VSC 538 at [34]. [5]Order 3, r 11 of the previous rules of this Court. [6][1994] QCA 157. [7]Citing what was said by Lord Macnaghten in William Brandt’s Sons & Co v Dunlop Rubber Company Limited [1905] AC 454 at 462.…
[1905] AC 454
[1905] AC 454 Para 1

…rules of this Court. [6][1994] QCA 157. [7]Citing what was said by Lord Macnaghten in William Brandt’s Sons & Co v Dunlop Rubber Company Limited [1905] AC 454 at 462.…
[1987] QB 565
[1987] QB 565 Para 1

…(1997) 188 CLR 159 at 187, 237; Cran v State of New South Wales & Anor [2004] NSWCA 92 at [57]. [15] Orchard v South Eastern Electricity Board [1987] QB 565 at 571 per Sir John Donaldson MR; Business Computers International Ltd v Registrar of Companies & Ors [1988] 1 Ch 229 at 240.…
[1901] 2 KB 16
[1901] 2 KB 16 Para 1

…not apt. The appropriate relief would have been a declaration to the effect that the lease had not been forfeited. [2] Re Riggs; Ex parte Lovell [1901] 2 KB 16 at 20.…

Legislation cited in this decision · 4

Uniform Civil Procedure Rules 1999 (Qld)
171, 62, 63, 67 4 mentions
Property Law Act 1974 (Qld)
124, 127 2 mentions
Personal Injuries Proceedings Act 2002 (Qld)
1 mention
Properly Law Act 1974 (Qld)
1 mention (from Para 1)

CITATION:	Moore v Devanjul Pty Ltd as Trustee & Ors [2010] QSC 250
PARTIES:	STANLEY GORDON WILLIAM MOORE (Plaintiff) v DEVANJUL PTY LTD (ACN 117 644 087) 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 (Fifth defendant) and GEOFFREY PAUL EBERT OF/AND FINEMORE WALTERS & STORY (Defendant by counterclaim)
FILE NOS:	1890 of 2010 21 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane Bundaberg
DELIVERED ON:	14 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2010
JUDGE:	McMurdo J
ORDER:	The counterclaim filed by the fifth defendant on 2 February 2010 against Geoffrey Paul Ebert and Finemore Walters & Story be struck out.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – APPLICATION TO STRIKE OUT COUNTERCLAIM – where the fifth defendant owns the subject land which she holds as trustee of her family trust –where the plaintiff and his former wife were registered as lessees, holding as trustees, of the subject land – where the plaintiff and his former wife subsequently divorced and she resigned as a trustee but remained registered as a lessee of the subject land – where the defendant by counterclaim has commenced earlier proceedings involving the subject land in the names of the plaintiff and his former wife – where the fifth defendant filed a counterclaim in the current proceedings alleging that the defendant by counterclaim fraudulently concealed the fact that the plaintiff’s former wife had resigned as a trustee and purported to act on her behalf in the earlier proceedings without her instructions, resulting in miscarriages of justice – where the counterclaim also makes serious allegations about the conduct of the defendant by counterclaim – whether the counterclaim should be struck out as disclosing no reasonable cause of action and as scandalous, frivolous or vexatious. Personal Injuries Proceedings Act 2002 (Qld) Property Law Act 1974 (Qld) ss 124, 127 Uniform Civil Procedure Rules 1999 (Qld) rr 62, 63, 67, 171 Australian Retail Enterprises Pty Ltd v ND Cowan Nominees Pty Ltd [2000] VSC 538 Business Computers International Ltd v Registrar of Companies & Ors [1988] Ch 229 Conde v Burchill & Horsey Lawyers & Anor [2009] QSC 291 Cran v State of New South Wales & Anor [2004] NSWCA 92 Equus Financial Services Limited v Glengallen Investments Pty Ltd [1994] QCA 157 Ex parte Taylor [1980] Qd R 253 Hill v Van Erp (1997) 188 CLR 159 Kemtron Industries Pty Ltd v Commissioner of Stamp Duties [1984] 1 Qd R 576 Moore & Anor v Devanjul Pty Ltd [2007] QDC 366 Nashvying Pty Ltd & Ors v Giacomi [2007] QCA 454 Orchard v South Eastern Electricity Board [1987] QB 565 Pukeroa v Berkeley Challenge Pty Ltd [2005] 2 Qd R 46 Re Riggs; Ex parte Lovell [1901] 2 KB 16 TM Fairclough & Sons Limited…