SUPREME COURT OF QUEENSLAND
CITATION:
Murdoch v Lake [2014] QCA 216
PARTIES:
MALCOLM ALEXANDER STEPHEN MURDOCH
(appellant)
v
STEPHEN MAURICE LINTON LAKE
(respondent)FILE NO/S:
Appeal No 10070 of 2013
SC No 9994 of 2010DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
29 August 2014
DELIVERED AT:
Brisbane
HEARING DATE:
23 April 2014
JUDGES:
Morrison JA and Peter Lyons and Boddice JJ
Separate reasons for judgment of each member of the Court, Morrison JA and Peter Lyons J concurring as to the orders made, Boddice J dissenting in partORDERS:
The appeal is allowed.1.
Orders 1, 2 and 3 made on 2 October 2013 are set aside.2.
If, within seven (7) days of the publication of these reasons, the parties are able to agree on the form of order to be made for the amendment of the claim and statement of claim, and otherwise give effect to these reasons, those orders will be made.3.
If the parties cannot agree on the form of order, the applications are remitted to the Trial Division.4.
If either party seeks an order for costs, his written submissions are to be filed within seven (7) days after publication of these reasons; and any submissions in reply within a further seven (7) days.5.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where the appellant filed an application to amend his claim and statement of claim – where the primary judge refused the appellant’s application and dismissed the proceeding for want of prosecution – where the proposed pleading introduced a new entity, CapX – where the proposed pleading pleaded the respondent had obtained a beneficial interest in shares through CapX – where the proposed pleading pleaded the respondent, on behalf of himself and CapX, made an agreement with others, some of whom acted on behalf of CapX, that a company of which the appellant was formerly a director and shareholder would pursue an initial public offering – where the appellant alleged the respondent’s conduct was misleading because he did not disclose his interest in the shares nor the agreement regarding the initial public offering – where this is the same allegation as in previous versions of the pleading – whether the introduction of CapX pleaded new causes of action and, if so, whether those causes of action arose out of the same or substantially the same facts as those previously pleaded
Trade Practices Act 1974 (Cth), s 52, s 87
Uniform Civil Procedure Rules 1999 (Qld), r 376Bruce v Odhams Press Ltd [1936] 1 KB 697, followed
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17, cited
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; [1999] FCA 1101, applied
Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, citedCOUNSEL:
R G…
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- Murdoch v Lake [2014] QCA 216
- Case
- [2014] QCA 216
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the introduction of CapX pleaded new causes of action, and if so, whether those causes of action arose out of the same or substantially the same facts as those previously pleaded. The court held that the introduction of CapX did indeed plead new causes of action, but that those causes of action did arise out of the same or substantially the same facts as those previously pleaded. The court found that the primary judge erred in dismissing the proceeding for want of prosecution, and that the appellant's application to amend his claim and statement of claim should have been granted. The court also held that the parties should be given an opportunity to agree on the form of order to be made for the amendment of the claim and statement of claim, and that if they were unable to agree, the applications should be remitted to the Trial Division.
The appeal is allowed. Orders 1, 2 and 3 made on 2 October 2013 are set aside. If the parties are able to agree on the form of order to be made for the amendment of the claim and statement of claim, and otherwise give effect to these reasons, those orders will be made. If the parties cannot agree on the form of order, the applications are remitted to the Trial Division. If either party seeks an order for costs, his written submissions are to be filed within seven (7) days after publication of these reasons; and any submissions in reply within a further seven (7) days.
Orders
Orders of the court
The appeal is allowed.1.
Orders 1, 2 and 3 made on 2 October 2013 are set aside.2.
If, within seven (7) days of the publication of these reasons, the parties are able to agree on the form of order to be made for the amendment of the claim and statement of claim, and otherwise give effect to these reasons, those orders will be made.3.
If the parties cannot agree on the form of order, the applications are remitted to the Trial Division.4.
If either party seeks an order for costs, his written submissions are to be filed within seven (7) days after publication of these reasons; and any submissions in reply within a further seven (7) days.5.
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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