Moore v Devanjul Pty Ltd & Ors (No 5) [2013] QSC 323
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:
Trial
ORIGINATING COURT:
Supreme Court Bundaberg
DELIVERED ON:
22 November 2013
DELIVERED AT:
Rockhampton
HEARING DATE:
30 September 2013
JUDGE:
McMeekin J
ORDERS:
The second defendant pay to the plaintiff the sum of $297,561 including interest in the sum of $62,561 to this day;1.
The second defendant pay the plaintiff's costs of and incidental to the proceedings (including reserved costs) to be assessed.2.
It is declared that:3.
Devanjul Pty Ltd in its capacity as trustee of the Jadvek Berthelsen Family Trust properly and reasonably incurred a liability to the plaintiff in the sum of $297,561 including interest in the sum of $62,561 to this day together with the plaintiff’s costs of and incidental to these proceedings (including reserved costs) assessed on the standard basis;i)
the assets both present and future, real and personal, of the Jadvek Berthelsen Family Trust do stand charged with the payment to Stanley Gordon William Moore as trustee of the Moore Investment Trust of the sum of $297,561 together with the plaintiff’s costs of and incidental to these proceedings (including reserved costs) assessed on the standard basis;ii)
4. That Jadvek Berthelsen Family Trust, or such other person who may be trustee of the Jadvek Berthelsen Family Trust, be authorised to sell such of the assets of the Jadvek Berthelsen Family Trust as is necessary to discharge the said charge of the plaintiff and to apply such proceeds to discharge the said charge. Kailen Derek Berthelsen, as trustee of the
CATCHWORDS:
TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS TO REAL PROPERTY – LIABIITY OF PARTICULAR PERSONS – where plaintiff alleges the first and second defendant committed trespass – where the second defendant was a director of the first defendant – where plaintiff had a right as lessee to property owned by first defendant as trustee – where second defendant effected entry to the property as an agent of the first defendant probably under the apprehension that she was entitled to enter by reason of valid notices – where notices were found to be invalid – whether second defendant is personally liable for trespass – whether the first defendant is liable for the trespass of second defendant
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – BREACH OF CONTRACT – where plaintiff had a contract of lease with the first defendant – where contract included a clause for quiet enjoyment and a clause that the lessor would be under the same liability to the lessee as…
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.
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Details
AGLC
Moore v Devanjul Pty Ltd & Ors (No 5) [2013] QSC 323
Case
[2013] QSC 323
Decision Date
CaseChat Overview and Summary
The plaintiff, Stanley Gordon William Moore, brought an action against Devanjul Pty Ltd and others for trespass to land, breach of contract, and other related matters. The plaintiff claimed that the first and second defendants, who were connected to Devanjul Pty Ltd as either the company or a director, trespassed on his property. The plaintiff had a lease with Devanjul Pty Ltd as trustee of the Jadvek Berthelsen Family Trust, and the defendants' actions included changing locks, destroying property, and removing amenities. The plaintiff also alleged breaches of contract based on clauses in the lease agreement and sought damages for both trespass and breach of contract.
The court needed to determine whether the second defendant, who entered the property as an agent of Devanjul Pty Ltd, was personally liable for trespass. The court also had to consider whether Devanjul Pty Ltd could be held liable for the actions of the second defendant. Additionally, the court needed to decide if Devanjul Pty Ltd breached the lease agreement and whether the claimed damages were appropriate for the breaches found. Finally, the court had to examine whether the plaintiff could seek equitable remedies against the assets of the Jadvek Berthelsen Family Trust.
The court found that the second defendant was personally liable for trespass, as the notices used to justify entry were invalid. Devanjul Pty Ltd was held liable for the trespass committed by the second defendant as it was acting within the scope of its agency. The court determined that Devanjul Pty Ltd breached the lease agreement by altering the property and interfering with the plaintiff's quiet enjoyment. The damages claimed were considered appropriate given the nature and extent of the breaches. Finally, the court ruled that the plaintiff could pursue remedies against the assets of the Jadvek Berthelsen Family Trust, including authorising the sale of necessary assets to satisfy the debt.
The court ordered the second defendant to pay the plaintiff $297,561 plus interest of $62,561, along with the plaintiff's costs. It was declared that Devanjul Pty Ltd, as trustee of the Jadvek Berthelsen Family Trust, owed the plaintiff this amount, and the trust assets were charged to satisfy this debt. The Jadvek Berthelsen Family Trust or its trustee was authorised to sell assets to pay the plaintiff, including costs.
Orders
Orders of the court
The second defendant pay to the plaintiff the sum of $297,561 including interest in the sum of $62,561 to this day;1.
The second defendant pay the plaintiff's costs of and incidental to the proceedings (including reserved costs) to be assessed.2.
It is declared that:3.
Devanjul Pty Ltd in its capacity as trustee of the Jadvek Berthelsen Family Trust properly and reasonably incurred a liability to the plaintiff in the sum of $297,561 including interest in the sum of $62,561 to this day together with the plaintiff’s costs of and incidental to these proceedings (including reserved costs) assessed on the standard basis;i)
the assets both present and future, real and personal, of the Jadvek Berthelsen Family Trust do stand charged with the payment to Stanley Gordon William Moore as trustee of the Moore Investment Trust of the sum of $297,561 together with the plaintiff’s costs of and incidental to these proceedings (including reserved costs) assessed on the standard basis;ii)
4. That Jadvek Berthelsen Family Trust, or such other person who may be trustee of the Jadvek Berthelsen Family Trust, be authorised to sell such of the assets of the Jadvek Berthelsen Family Trust as is necessary to discharge the said charge of the plaintiff and to apply such proceeds to discharge the said charge. Kailen Derek Berthelsen, as trustee of the