Sinclair v Archerfield Kart Hire Pty Ltd - [2024] QDC 183

DISTRICT COURT OF QUEENSLAND

CITATION:

Sinclair v Archerfield Kart Hire Pty Ltd [2024] QDC 183

PARTIES:

KATHLEEN SINCLAIR

(Plaintiff)

V

ARCHERFIELD KART HIRE PTY LTD (ACN 151 617 471)

(Defendant)

TOKIO MARINE KILN GROUP LIMITED

(Respondent)

FILE NO/S:

4399/18

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court

DELIVERED ON:

11 September 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2024

JUDGE:

Porter KC DCJ

ORDERS:

1.   LEAVE IS GRANTED TO THE APPLICANT PLAINTIFF TO AMEND THE APPLICATION FILED ON 21 AUGUST 2024 TO SUBSTITUTE, FOR THE PRESENT RESPONDENT, THE COMPANY TOKIO MARINE KILN GROUP LIMITED.

2.   THE PLAINTIFF’S APPLICATION FILED 21 AUGUST 2024 IS DISMISSED.

3.   THE PLAINTIFF PAY THE COSTS OF STERLING INSURANCE PTY LTD AND TOKIO MARINE KILN GROUP LIMITED ON THE STANDARD BASIS.

CATCHWORDS:

PROCEDURE – Civil proceedings in State and Territory courts – Joinder of causes of action and of parties – Parties – Generally – where the plaintiff applies to join, as a party in the proceeding, an insurance company – where the plaintiff sought to advance a cause of action created by s. 601AG of the Corporations Act2001 (Cth) – where the defendant company was deregistered in 2019, having been re-registered for purposes to do with this litigation – where the respondent insurers submitted there was difficulty in adjoining the insurers into a proceeding in circumstances where the proceeding is abated by deregistration, and there is no defendant – where the plaintiff submitted the court had power in the case of s. 601AG specifically, because the purpose of that provision, particularly, is to avoid the need to re-register – where the plaintiff submitted that where a cause of action arose – whether the insurers be adjoined to the proceeding.

CASES:

Amcus Pty Ltd v Hertz Rentals Pty Ltd (2010) 77 ACSR 550

Pagnon v WorkCover Queensland [2001] 2 Qd R 492

RGM Graphic Services Pty Ltd v Moon [2001] FCA 1799

LEGISLATION:

Corporations Act2001 (Cth) ss. 601AG, 601AH(2) and (3)

Uniform Civil Procedure Rules 1999 (Qld) rr. 69(1), 375

COUNSEL:

A Taylor for the plaintiff

K Holyoak for the defendant, the respondent and Sterling Insurance Pty Ltd (ABN 12 084 296 168)

SOLICITORS:

Hall Payne Lawyers for the plaintiff

Barry Nilsson Lawyers for the defendant, the respondent and Sterling Insurance Pty Ltd (ABN 12 084 296 168)

Introduction

This is an application by the plaintiff, Kathleen Sinclair to join, as a party in the proceeding, an insurance company identified, sufficiently for this, as Sterling Insurance under rule 69(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR); and leave to be granted under r. 375 UCPR to amend her claim and statement of claim to include a claim against Sterling Insurance.

A couple of preliminary points arose. One was whether the statutory stay under r. 389(2) UCPR had arisen. With some time for both parties to reflect on the evidence that was assembled late in the piece, that point was not pressed, and it looks to me that…

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

Case: [2024] QDC 183
Decision Date: 11 September 2024 (ex tempore)

CaseChat Overview and Summary

The case of Sinclair v Archerfield Kart Hire Pty Ltd involved a plaintiff seeking to join an insurance company as a party in the proceeding. The dispute arose from a cause of action created by section 601AG of the Corporations Act 2001 (Cth). The defendant company had been deregistered in 2019 but was subsequently re-registered for the purposes of this litigation. The plaintiff sought to amend the application to substitute the current respondent, Sterling Insurance Pty Ltd, with Tokio Marine Kiln Group Limited. The insurers opposed the application, arguing that there was difficulty in joining them into a proceeding that was abated by the deregistration of the defendant and that there was no defendant in the proceeding. The plaintiff countered that the court had the power to join the insurers due to the specific purpose of section 601AG, which was to avoid the need to re-register the company. The plaintiff submitted that once a cause of action arose, the insurers could be joined to the proceeding.

The court had to determine whether it had the jurisdiction to join the insurance company as a party in the proceeding, despite the deregistration of the defendant company, and whether the plaintiff's cause of action under section 601AG of the Corporations Act 2001 (Cth) could proceed. The court also had to consider the argument that the purpose of section 601AG was to avoid the need to re-register the company, and whether this meant that the insurers could be joined to the proceeding.

The court held that leave should be granted to the plaintiff to amend the application to substitute the respondent. However, the application to join the insurance company as a party was dismissed. The court found that there was difficulty in joining the insurers due to the deregistration of the defendant company and the absence of a defendant in the proceeding. The court also held that the plaintiff's cause of action under section 601AG of the Corporations Act 2001 (Cth) could not proceed against the insurance company as it was not a party to the proceeding. The court further found that the purpose of section 601AG was not to avoid the need to re-register the company, and therefore, the insurers could not be joined to the proceeding. The plaintiff was ordered to pay the costs of the respondents on the standard basis.

In summary, the court granted the plaintiff leave to amend the application to substitute the respondent but dismissed the application to join the insurance company as a party in the proceeding. The court held that there was difficulty in joining the insurers due to the deregistration of the defendant company and the absence of a defendant in the proceeding. The court also held that the plaintiff's cause of action under section 601AG of the Corporations Act 2001 (Cth) could not proceed against the insurance company as it was not a party to the proceeding. The plaintiff was ordered to pay the costs of the respondents on the standard basis.

Orders

Orders of the court

1. LEAVE IS GRANTED TO THE APPLICANT PLAINTIFF TO AMEND THE APPLICATION FILED ON 21 AUGUST 2024 TO SUBSTITUTE, FOR THE PRESENT RESPONDENT, THE COMPANY TOKIO MARINE KILN GROUP LIMITED.

2. THE PLAINTIFF’S APPLICATION FILED 21 AUGUST 2024 IS DISMISSED.

3. THE PLAINTIFF PAY THE COSTS OF STERLING INSURANCE PTY LTD AND TOKIO MARINE KILN GROUP LIMITED ON THE STANDARD BASIS.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sinclair v Archerfield Kart Hire Pty Ltd [2024] QDC 183
PARTIES:	KATHLEEN SINCLAIR (Plaintiff) V ARCHERFIELD KART HIRE PTY LTD (ACN 151 617 471) (Defendant) TOKIO MARINE KILN GROUP LIMITED (Respondent)
FILE NO/S:	4399/18
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court
DELIVERED ON:	11 September 2024 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	11 September 2024
JUDGE:	Porter KC DCJ
ORDERS:	1. LEAVE IS GRANTED TO THE APPLICANT PLAINTIFF TO AMEND THE APPLICATION FILED ON 21 AUGUST 2024 TO SUBSTITUTE, FOR THE PRESENT RESPONDENT, THE COMPANY TOKIO MARINE KILN GROUP LIMITED. 2. THE PLAINTIFF’S APPLICATION FILED 21 AUGUST 2024 IS DISMISSED. 3. THE PLAINTIFF PAY THE COSTS OF STERLING INSURANCE PTY LTD AND TOKIO MARINE KILN GROUP LIMITED ON THE STANDARD BASIS.
CATCHWORDS:	PROCEDURE – Civil proceedings in State and Territory courts – Joinder of causes of action and of parties – Parties – Generally – where the plaintiff applies to join, as a party in the proceeding, an insurance company – where the plaintiff sought to advance a cause of action created by s. 601AG of the Corporations Act2001 (Cth) – where the defendant company was deregistered in 2019, having been re-registered for purposes to do with this litigation – where the respondent insurers submitted there was difficulty in adjoining the insurers into a proceeding in circumstances where the proceeding is abated by deregistration, and there is no defendant – where the plaintiff submitted the court had power in the case of s. 601AG specifically, because the purpose of that provision, particularly, is to avoid the need to re-register – where the plaintiff submitted that where a cause of action arose – whether the insurers be adjoined to the proceeding.
CASES:	Amcus Pty Ltd v Hertz Rentals Pty Ltd (2010) 77 ACSR 550 Pagnon v WorkCover Queensland [2001] 2 Qd R 492 RGM Graphic Services Pty Ltd v Moon [2001] FCA 1799
LEGISLATION:	Corporations Act2001 (Cth) ss. 601AG, 601AH(2) and (3) Uniform Civil Procedure Rules 1999 (Qld) rr. 69(1), 375
COUNSEL:	A Taylor for the plaintiff K Holyoak for the defendant, the respondent and Sterling Insurance Pty Ltd (ABN 12 084 296 168)
SOLICITORS:	Hall Payne Lawyers for the plaintiff Barry Nilsson Lawyers for the defendant, the respondent and Sterling Insurance Pty Ltd (ABN 12 084 296 168)