Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd & Anor [2015] QSC 165

PARTIES:

NICHOLS CONSTRUCTIONS PTY LTD (ACN 010 763 505)

(plaintiff)

v
MT MARLOW PTY LTD (ACN 134 480 354)

(first defendant)
LUTZ BERGER
(second defendant)

FILE NO/S:

5714 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court  at Brisbane

DELIVERED ON:

22 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2015

JUDGE:

Martin J

ORDERS:

1.     The Statement of Claim is struck out.

2.     The plaintiff has leave to replead.

3.     An amended Statement of Claim is to be filed and served within 21 days of the date of this order.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the second defendant seeks to strike out the Statement of Claim – where the second defendant is the sole director of the first defendant – where the second defendant made an undertaking, in his sole capacity and in his capacity as the sole director of the first defendant, to pay the net proceeds from the sale of various lots to the plaintiff – where the plaintiff pleads that the undertaking included express/implied terms, including that the second defendant would not divest his interest in the first defendant – where the plaintiff alleges that the second defendant breached his undertaking – where the second defendant does not have an interest in the first defendant – whether the Statement of Claim tends to prejudice, embarrass, or delay, the fair trial of the action

Uniform Civil Procedure Rules, r 171, r 293

Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53

COUNSEL:

D Thomae for the respondent/plaintiff
P Hackett for the applicant/second defendant

SOLICITORS:

Parker Simmonds for the respondent/plaintiff

Roberts Law for the applicant/second defendant

1. The second defendant (Mr Berger) seeks orders striking out the claim and statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules (‘UCPR’) or, alternatively, that he have judgment pursuant to r 293 of the UCPR or, alternatively that this proceeding be heard with proceeding 3368 of 2014.

2. No application was made by the first defendant and it did not appear on this application.

3. At the hearing, the plaintiff (Nichols Constructions) produced an Amended Statement of Claim (ASOC) which it sought leave to file. Although the second defendant (Mr Berger) had prepared his case on the basis of the original pleading the parties argued the case on the basis of the proposed ASOC.

4. In its ASOC Nichols Constructions seeks declarations and other orders against the first defendant (Mt Marlow) and Mr Berger with respect to a loan from Nichols Constructions to another entity, Lake Laurel Pty Ltd.

5. It will assist in understanding the background to this application if I describe the relationship between the various entities. At the relevant time:

   (a)     Mr Berger was the sole director of:

   ·     Mt Marlow

   ·     Berger Brothers…