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Moore v Devanjul Pty Ltd (No 3)

Moore v Devanjul Pty Ltd (No 3)

Case [2012] QSC 355 14 November 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

Moore v Devanjul Pty Ltd & Ors (No 3) [2012] QSC 355

PARTIES:

STANLEY GORDON WILLIAM MOORE as TRUSTEE OF THE MOORE INVESTMENT TRUST

(Plaintiff)

v

DEVANJUL PTY LTD

(A.C.N. 117 644 0087) AS TRUSTEE OF THE JADVEK BERTHELSEN FAMILY TRUST

(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)

AND

ROBYN GAIL MOORE

(Defendant added by Counterclaim)

FILE NO/S:

21/2009; 239/12

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Bundaberg

DELIVERED ON:

14 November 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

8 October 2012

JUDGE:

McMeekin J

ORDERS:

1.   Devanjul Pty Ltd is removed as a party to these proceedings;

2.   Kailen Derek Berthelsen, in his capacity as the trustee of the Jadvek Berthelsen Family Trust, is substituted for the fifth defendant;

3.   The plaintiff’s application for judgment in default of appearance is dismissed;

4.   Leave to discontinue the counterclaim brought against the plaintiff and Robyn Gail Moore in proceedings 21 of 2009 is refused and the counterclaim is struck out;

5.   Caveat number 714391590 lodged in respect of land described as Lot 2 on SP 224257 County of Cook Parish of Bundaberg having Title Reference Number 50772873 be removed;

6.   The plaintiff has leave to amend his Claim and Statement of Claim in accordance with exhibit “ADG 2” to the affidavit of Allan Donald Grant filed 31 August 2012 subject to:

a.   The deletion of the reference to Devanjul Pty Ltd as the first defendant;

b.   Consequential amendments being made to properly reflect the removal of Devanjul Pty Ltd as a party;

c.   The further pleading of the assumptions underlying the claim for damages in paragraph 30 of the proposed Second Further Amended Statement of Claim being exhibit “ADG 2” to the affidavit of Allan Donald Grant filed 31 August 2012;

7.   The plaintiff file and serve his Second Further Amended Claim and Statement of Claim on the second, third and fourth defendants on or before 4pm on 21 November 2012;

8.   The plaintiff serve a copy of these reasons and of his Second Further Amended Claim and Statement of Claim personally on Kailen Derek Berthelsen on or before 4pm on 21 November 2012;

9.   The defendants have leave to file and serve any amended Defence or Defence and Counterclaim as they might be advised on or before 4pm on 19 December 2012;

10. The defendants’ applications to strike out the plaintiff’s Claim and Statement of Claim, to join Robyn Gail Moore as a party, for injunctions, and for an order under r 389A are dismissed;

11. The costs incurred by the plaintiff in respect of the application to substitute the fifth defendant are reserved to the trial judge;

12. The defendants pay:

  i.   the costs of Robyn Gail Moore in respect of the application to join her as a party, in respect of the application to strike…

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 (No 3)

Details

AGLC: Moore v Devanjul Pty Ltd (No 3) [2012] QSC 355
Case: [2012] QSC 355
Decision Date: 14 November 2012

CaseChat Overview and Summary

In the case of Moore v Devanjul Pty Ltd (No 3), the plaintiff sought various procedural orders, including the substitution of a party and amendment of the claim. Devanjul Pty Ltd and others sought to have the plaintiff's claim struck out, to join a party, and for various other orders. The court was tasked with deciding whether to permit the plaintiff to amend his claim and statement of claim, to substitute a party, and to grant judgment in default of appearance, as well as whether to strike out the plaintiff's claim and statement of claim, join a party, and grant various other orders sought by the defendants.

The court first considered the plaintiff's application to amend his claim and statement of claim, to substitute a party, and for judgment in default of appearance. The court held that the plaintiff was entitled to amend his claim and statement of claim to substitute the fifth defendant, but the application for judgment in default of appearance was dismissed. The court then considered the defendants' applications to strike out the plaintiff's claim and statement of claim, to join Robyn Gail Moore as a party, for injunctions, and for an order under r 389A UCPR. The court dismissed these applications and struck out the counterclaim brought against the plaintiff and Robyn Gail Moore. The court also ordered that a caveat be removed and set out detailed orders regarding the amendment of the claim and statement of claim, service of documents, and costs.

The final orders of the court included the removal of Devanjul Pty Ltd as a party, the substitution of Kailen Derek Berthelsen, in his capacity as the trustee of the Jadvek Berthelsen Family Trust, for the fifth defendant, the dismissal of the plaintiff's application for judgment in default of appearance, the striking out of the counterclaim, the removal of a caveat, and detailed orders regarding the amendment of the claim and statement of claim, service of documents, and costs. The court reserved the costs incurred by the plaintiff in respect of the application to substitute the fifth defendant to the trial judge and ordered the defendants to pay certain costs.

Orders

Orders of the court

1. Devanjul Pty Ltd is removed as a party to these proceedings;

2. Kailen Derek Berthelsen, in his capacity as the trustee of the Jadvek Berthelsen Family Trust, is substituted for the fifth defendant;

3. The plaintiff’s application for judgment in default of appearance is dismissed;

4. Leave to discontinue the counterclaim brought against the plaintiff and Robyn Gail Moore in proceedings 21 of 2009 is refused and the counterclaim is struck out;

5. Caveat number 714391590 lodged in respect of land described as Lot 2 on SP 224257 County of Cook Parish of Bundaberg having Title Reference Number 50772873 be removed;

6. The plaintiff has leave to amend his Claim and Statement of Claim in accordance with exhibit “ADG 2” to the affidavit of Allan Donald Grant filed 31 August 2012 subject to:

a. The deletion of the reference to Devanjul Pty Ltd as the first defendant;

b. Consequential amendments being made to properly reflect the removal of Devanjul Pty Ltd as a party;

c. The further pleading of the assumptions underlying the claim for damages in paragraph 30 of the proposed Second Further Amended Statement of Claim being exhibit “ADG 2” to the affidavit of Allan Donald Grant filed 31 August 2012;

7. The plaintiff file and serve his Second Further Amended Claim and Statement of Claim on the second, third and fourth defendants on or before 4pm on 21 November 2012;

8. The plaintiff serve a copy of these reasons and of his Second Further Amended Claim and Statement of Claim personally on Kailen Derek Berthelsen on or before 4pm on 21 November 2012;

9. The defendants have leave to file and serve any amended Defence or Defence and Counterclaim as they might be advised on or before 4pm on 19 December 2012;

10. The defendants’ applications to strike out the plaintiff’s Claim and Statement of Claim, to join Robyn Gail Moore as a party, for injunctions, and for an order under r 389A are dismissed;

11. The costs incurred by the plaintiff in respect of the application to substitute the fifth defendant are reserved to the trial judge;

12. The defendants pay:

i. the costs of Robyn Gail Moore in respect of the application to join her as a party, in respect of the application to strike out the counterclaim, and in respect of the application to remove the caveat;

ii. the costs of the plaintiff in respect of the applications for an injunction and for an order under r 389A;

13. No order as to costs:

i. in respect of the plaintiff’s application to amend the Claim and Statement of Claim and for judgment in default of appearance;

ii. in respect of the defendants’ application to strike out the plaintiff’s Claim and Statement of Claim.

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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Citations

Moore v Devanjul Pty Ltd (No 3) [2012] QSC 355

Most Recent Citation

Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd [2017] QDC 238

Cases Citing This Decision

Queensland Police Service v TES [2020] QMC 4
Citation 1 (Para 52)

…(1925) at pp 7-8 ; Concrete Developments v Qld Housing Comm [1961] Qd R 356, at 364-365 per Philp J; Moore v Devanjul Pty Ltd (No 3) [2012] QSC 355, at [52] per McMeekin J.…
Smoothy Cattle Co Pty Ltd v CCS Mining and Civil (WA) Pty Ltd [2019] WADC 134
Citation 2 (Para 21)

…Defendants' Outline of Submissions, filed 19 July 2019, par 2. [8] Corporations Act 2001 (Cth) (CA) s 601AD(1). [9] Moore v Devanjul Pty Ltyd (No 3) [2012] QSC 355 [62] (Meekin J); Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) [2010] NSWSC 239 [15], [22] (Slatttery J). [10] Moore v Devanjul Pty Ltd [63].…
Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd [2017] QDC 238
Citation 3 (Para 1)

…As examined by McMeekin J in Moore v Devanjul Pty Ltd (No 3) [2012] QSC 355, upon deregistration, the former corporate entity ceases to exist: see s 601AD(1) of the Corporations Act 2001 (Commonwealth). As he then noted, it is “not possible to have a non-existent entity as a party to the proceedings”: at [62]. Ac…
Moore v Devanjul Pty Ltd (No 5) [2013] QSC 323
Citation 4 (Para 1)

…tee of the Jadvek Berthelsen Family Trust, a position that she did not then hold. That pleading was struck out: Moore v Devanjul Pty Ltd & Ors (No 3) [2012] QSC 355…
Moore v Devanjul Pty Ltd (No 4) [2013] QSC 291
Citation 5 (Para 1)

…ticularised. I note that I pointed out deficiencies in the defences that I thought were to be relied on in my reasons of 14 November 2012 – see [2012] QSC 355 at [68]. I am confident that Mrs Berthelsen, who I perceive to be the guiding mind on the defence side of the record, has appreciated, at least since those…

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Cases Cited

Moore v Devanjul Pty Ltd [2012] QSC 66
Citation 1 (Para 1)

…volous, vexatious or an abuse of process”. [9]My response to some of the plaintiff’s manoeuvrings can be seen at Moore v Devanjul Pty Ltd [2012] QSC 66…
Moore & Anor v Devanjul Pty Ltd [2010] QDC 353
Citation 2 (Para 1)

…nd contemptuous are sought, and for injury to reputation, for which no rational ground emerges in the pleading. [5] Moore & Anor v Devanjul Pty Ltd [2010] QDC 353 at [49]-[54]; Dodds DCJ recognised the continuing relationship of lessee too: Moore & Anor v Devanjul Pty Ltd [2007] QDC 366 at [3] [6] Moore v Devanju…
Moore v Devanjul Pty Ltd [2010] QSC 250
Citation 3 (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 v Devanjul Pty Ltd [2007] QDC 366
Citation 4 (Para 1)

…eiture. On each occasion the District Court relieved against forfeiture.[2] The re-entries were declared void. [2]Deardon DCJ - 36/06 – 23/10/06; [2007] QDC 366 per Dodds DCJ. McMurdo J pointed out that a more apt order would have been a declaration that there had in fact been no forfeiture given the findings tha…
Hadid v Lenfest Communications Inc [1996] FCA 675
Citation 5 (Para 1)

…Direction No 1 of 2007 are relevant. No grounds are shown to justify any such order. As to those grounds see Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 per Gleeson CJ at 321-2.…
Henry v Henry [1996] HCA 51
Citation 6 (Para 1)

…e counterclaim brought by Mrs Berthelsen, purportedly acting as trustee of the Jadvek Berthelsen Family Trust. The High Court said in Henry v Henry (1995) 185 CLR 571 at 591, “[i]t is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of t…
Henry v Henry [1995] HCATrans 202
Citation 7 (Para 1)

…this Court the counterclaim brought by Mrs Berthelsen, purportedly acting as trustee of the Jadvek Berthelsen Family Trust. The High Court said in Henry v Henry (1995) 185 CLR 571 at 591, “[i]t is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the…
Walton v Gardiner [1993] HCA 77
Citation 8

…ley (1912) 106 LT 591 Re Burman’s Caveat [1994] 1 Qd R 123 TM Fairclough & Sons Limited v Berliner [1931] 1 Ch 60 Walton v Gardiner (1993) 177 CLR 378 COUNSEL: SJ Deaves for the Plaintiff Second and Fifth Defendant in person Third Defendant in person No appearance by the Fourth Defendant RW Haddrick for the Defendant added…
Patterson v BTR Engineering (Aust) Ltd (1989) NSWLR 319
Citation 9

…ty Ltd [2010] QSC 250 Moore & Anor v Devanjul Pty Ltd [2010] QDC 353 Moore & Anor v Devanjul Pty Ltd [2007] QDC 366 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Pennington v Cayley (1912) 106 LT 591 Re Burman’s Caveat [1994] 1 Qd R 123 TM Fairclough & Sons Limited v Berliner [1931] 1 Ch 60 Walton v Gardiner (1993) 177 CLR 378 COU…

Legislation Cited

Uniform Civil Procedure Rules 1999 (Qld) 155, 165, 171, 178, 260A, 292, 3, 304, 3...
17 mentions
Corporations Act 2001 (Cth) 197, 601AD
3 mentions (from Para 1)
Land Title Act 1994 (Qld) 127
3 mentions (from Para 1)
Personal Injuries Proceedings Act 2002 (Qld)
1 mention (from Para 1)
Property Law Act 1974 (Qld)
1 mention (from Para 1)

CITATION:	Moore v Devanjul Pty Ltd & Ors (No 3) [2012] QSC 355
PARTIES:	STANLEY GORDON WILLIAM MOORE as TRUSTEE OF THE MOORE INVESTMENT TRUST (Plaintiff) v DEVANJUL PTY LTD (A.C.N. 117 644 0087) AS TRUSTEE OF THE JADVEK BERTHELSEN FAMILY TRUST (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) AND ROBYN GAIL MOORE (Defendant added by Counterclaim)
FILE NO/S:	21/2009; 239/12
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Bundaberg
DELIVERED ON:	14 November 2012
DELIVERED AT:	Rockhampton
HEARING DATE:	8 October 2012
JUDGE:	McMeekin J
ORDERS:	1. Devanjul Pty Ltd is removed as a party to these proceedings; 2. Kailen Derek Berthelsen, in his capacity as the trustee of the Jadvek Berthelsen Family Trust, is substituted for the fifth defendant; 3. The plaintiff’s application for judgment in default of appearance is dismissed; 4. Leave to discontinue the counterclaim brought against the plaintiff and Robyn Gail Moore in proceedings 21 of 2009 is refused and the counterclaim is struck out; 5. Caveat number 714391590 lodged in respect of land described as Lot 2 on SP 224257 County of Cook Parish of Bundaberg having Title Reference Number 50772873 be removed; 6. The plaintiff has leave to amend his Claim and Statement of Claim in accordance with exhibit “ADG 2” to the affidavit of Allan Donald Grant filed 31 August 2012 subject to: a. The deletion of the reference to Devanjul Pty Ltd as the first defendant; b. Consequential amendments being made to properly reflect the removal of Devanjul Pty Ltd as a party; c. The further pleading of the assumptions underlying the claim for damages in paragraph 30 of the proposed Second Further Amended Statement of Claim being exhibit “ADG 2” to the affidavit of Allan Donald Grant filed 31 August 2012; 7. The plaintiff file and serve his Second Further Amended Claim and Statement of Claim on the second, third and fourth defendants on or before 4pm on 21 November 2012; 8. The plaintiff serve a copy of these reasons and of his Second Further Amended Claim and Statement of Claim personally on Kailen Derek Berthelsen on or before 4pm on 21 November 2012; 9. The defendants have leave to file and serve any amended Defence or Defence and Counterclaim as they might be advised on or before 4pm on 19 December 2012; 10. The defendants’ applications to strike out the plaintiff’s Claim and Statement of Claim, to join Robyn Gail Moore as a party, for injunctions, and for an order under r 389A are dismissed; 11. The costs incurred by the plaintiff in respect of the application to substitute the fifth defendant are reserved to the trial judge; 12. The defendants pay: i. the costs of Robyn Gail Moore in respect of the application to join her as a party, in respect of the application to strike…