Moore v Devanjul Pty Ltd (No 4)

[2013] QSC 291

SUPREME COURT OF QUEENSLAND

CITATION:

Moore v Devanjul Pty Ltd & Ors (No 4) [2013] QSC 291

PARTIES:

STANLEY GORDON WILLIAM MOORE as TRUSTEE OF THE MOORE INVESTMENT TRUST

(Plaintiff)

v

DEVANJUL PTY LTD

(A.C.N. 117 644 087) 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

KAILEN DEREK BERTHELSEN as TRUSTEE of the JADVEK BERTHELSEN FAMILY TRUST

(Fifth Defendant)

FILE NO/S:

21/2009; 239/12

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Bundaberg

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2013

JUDGE:

McMeekin J

ORDERS:

1. The application is refused.
2. The second defendant pay the costs of the plaintiff.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – where the trial has been heard – where second and fifth defendants failed to appear – where judgment was reserved – whether the hearing should be reopened

Uniform Civil Procedure Rules 1999

Cook v D A Manufacturing Pty Ltd & Anor [2004] QCA 52 cited

Surfers Paradise International Convention Centre Pty Ltd vNational Mutual Life Association of Australasia Limited [1984] 2 Qd R 447 cited

Wilson v Orreal [2012] QSC 315 cited

COUNSEL:

SJ Deaves for the Plaintiff

Second Defendant appeared on her own behalf

SOLICITORS:

Carswell & Company for the Plaintiff

Second Defendant appeared on her own behalf

1. McMeekin J: This is an application by the second defendant, Mrs Vanessa Berthelsen, to reopen the hearing of the matter. She appears, as usual, unrepresented. I have had long experience with this matter.

1. On 30 September, I heard the trial in this proceeding. The second and fifth defendants, the only remaining defendants with a possible interest in the matter,[1] did not appear. The fifth defendant had not filed a defence.

   [1]The first defendant has been de-registered, the  third defendant made bankrupt and no leave has been sought, and the fourth defendant has settled with the plaintiff

1. I was satisfied that the plaintiff had complied with the rules relating to service and had taken steps to notify the defendants of the trial dates. As well the Registrar had issued notices advising of the trial date not only to Mrs Berthelsen’s address for service but at another address that he thought, accurately as it turns out, might have become her residential address in the meantime.

1. The plaintiff proceeded under r 476 Uniform Civil Procedure Rules (UCPR).  I reserved my decision and have not yet delivered it.

1. Two days after that trial the second defendant says that she learnt from her sister that there had been a hearing. Her sister had been reading the electronic records of the Court and noticed the matter had been set for trial. Mrs Berthelsen promptly rang the Registrar of the Court and claims that for the first time she learnt that the matter had been set down for hearing. The matter was brought to my attention. I directed…