St George Bank Ltd v McTaggart

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 10157 OF 2002

Brisbane

Before McPherson JA

Davies JA

Philippides J

[St George Bank Ltd v McTaggart & Ors; [2003] QCA 59]

BETWEEN

ST GEORGE BANK LIMITED
ACN 055 513 070

Plaintiff/Applicant

AND

STEPHEN JOHN McTAGGART

First Respondent/First Defendant

AND

SCOTSDALE ENTERPRISES PTY LTD
ACN 074 880 863

Second Defendant/Second Respondent

AND

KELMSCOTT TRUCK SALES (WA) PTY LTD
ACN 075 852 096

Third Defendant/(Not a Party to the application)

Judgment delivered on the 21st day of February 2003

Orders: (1) Leave to appeal granted. Appeal allowed.

(2) Orders made in paras 1 and 3 of the order of the District Court of 9

October 2002 set aside.

(3) Respondent first and second defendants to pay the plaintiff applicant’s costs of and incidental to the application and appeal to this Court and of the application in the District Court resulting in those orders.

1. McPHERSON JA: St George Bank Limited carries on business at various locations throughout Australia but, so far as relevant here, at its office at 345 Queen Street, Brisbane. On 21 June 2002 it filed a statement of claim in proceedings no D2673 of 2002 in the District Court at Brisbane. The other parties to the action are the first defendant Stephen McTaggart, who is alleged to be the principal of the second defendant Scotsdale Enterprises Pty Ltd, and the third defendant Kelmscott Truck Sales (WA) Pty Ltd, of which Noel John Best is a director and alleged personal friend of McTaggart.

2. In the statement of claim filed in those proceedings the plaintiff Bank alleges that it has been the victim of a conspiracy by the defendant to defraud, and claims damages alternatively for fraud, negligence and under s 52 of the Trade Practices Act 1974 (Cth). The Bank carries on business as lender and financier and in about October 1999 was approached with a view to financing the acquisition of a Topstart Triaxle trailer on terms that it would, in return for a payment of $108,000, acquire title to the trailer from the second defendant Scotsdale and then let it out to the third defendant Kelmscott on hire purchase in return for instalments of $22,211.05 per month. The payment was made and the hire purchase agreement was entered into, but Kelmscott defaulted in its payments. When the Bank attempted to repossess the trailer, it discovered that the trailer, or so it is alleged, did not exist.

3. The action was instituted on 21 June 2002 and the statement of claim was filed on the same day. On 28 August 2002 the first and second defendants McTaggart and Scotsdale applied for a transfer of the proceedings to the District Court of Western Australia pursuant to s 5(2)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). On 8 October 2002 those two defendants filed what is entitled a “substituted process application”. The substituted application omitted all reference to transfer under the Cross-vesting Act and instead sought a stay of…