Drake v PKF (Gold Coast) Pty Ltd & Anor [2020] QSC 401

SUPREME COURT OF QUEENSLAND CITATION: Drake v PKF (Gold Coast) Pty Ltd & Anor [2020] QSC 401 PARTIES: PETER CHARLES DRAKE (plaintiff) v PKF (GOLD COAST) PTY LTD & ANOR (defendants) FILE NO/S: 2822 of 2019 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 26 August 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 26 August 2020 JUDGE: Dalton J ORDER: 1. Proceeding dismissed. 2. Plaintiff to pay defendant’s costs of and incidental to this proceeding, including reserved costs, on a standard basis, to be assessed or agreed. COUNSEL: P Drake appeared in person M Jones for the defendants SOLICITORS: P Drake appeared in person Hall & Wilcox for the defendants HER HONOUR: This hearing today is the resumed date of a hearing which began on 11 February 2020. That was the return date for an application by the Plaintiff for leave to amend his statement of claim. That application had been filed on the 12 th of September 2019. On the 11th of February I indicated that I would not give leave, and raised various matters as to the pleading, which I considered to be completely 5 unsatisfactory. I gave the Plaintiff six months to get its house – or get his house in order in relation to this matter, and as I say, this is the return of that application for the adjourned hearing. The material shows that the Plaintiff first consulted solicitors Lillas & Loel on 1 June 10 2017, and first met with them on the 28th of June 2017. The version of the statement of claim which I looked at on the 11th of February 2020 was the fourth version. Court document 32 is a document which Mr Drake has filed, acting on his own behalf, and it is headed Draft Statement of Claim, but, in effect, I think what he is doing is seeking leave to file a statement of claim, not in that form, but in an 15 improved form which he hopes that he will be able to bring about. -- 1 of 3 -- 2 The Defendants say what is noticeable in Mr Drake’s affidavit, which is Court document 33, is a lack of explanation as to what has happened between 11 February and now. It seems that it was not until 25 May 2020 that the Plaintiff asked to collect his files from Lillas & Loel. He has explained to me orally that by this time he felt let down by his lawyers. He has been trying to find a new solicitor. There is no 5 convincing material that he has found a new solicitor, much less a solicitor who would be capable of taking this matter on and somehow performing the legal task of pleading what would be a very complicated legal claim, a claim that would take experienced counsel hundreds of hours to plead. 10 The draft pleading, which is Court document 32, as I say, is not propounded by Mr Drake as the pleading he wants to run with. It is just his best effort to date. It really still suffers from many of the faults – well, probably all the faults which I identified on the 11th of February 2020. There is still no sensible pleading of causation. I see that Mr Drake still asserts, for example, that he would have prevented the other 15 directors appointing administrators to LMIM, but gives no information as to how he would have brought that result about. I see that the pleading still contains concepts such as “unhedging”, but there is no proper pleading of what would have happened by reference to the contracts and other documents involved showing that LMIM would have had a right to do anything of the sort it describes. 20 The pleading of loss, I think, is largely unchanged, and there are real problems with the way that is pleaded. There is the problem that, at least in part, Mr Drake claims loss which belongs to the company, and really, outside that, simply asserts that if the companies had continued to trade, he would still continue to have received profits of 25 the company by way of loan advances from one of the corporate group. There is just no pleading of the legal framework in terms of entitlements, obligations, rights, to make that claim good. I warned on the 11th of February that, unless there was something extraordinary 30 presented today, there would not be another chance for the Plaintiff, so far as pleading its case. In my view, there is nothing extraordinary shown today. In fact, what Mr Drake says, really, is that the matter is no further progressed than it was in June 2017. Mr Drake does not have the documents he says he needs to plead. He has been aware that he needs those documents since 2017. He has not obtained 35 them. He blames his lawyer. I am not interested in the rights and wrongs of that. If his lawyer was not doing a proper job for him, he ought to have got a new lawyer well before now. So the first thing Mr Drake would need to do is find a lawyer. Then he would need 40 to somehow get hold of the documents he says he needs to plead, and after all of that had happened, he could make another attempt, or his lawyer could make another attempt to plead what would be, as I say, a very complicated cause of action. I just cannot see that there is a realistic chance of that happening, and I think that, given the history of this matter, and the warnings that Mr Drake has had in relation to what 45 would be required today, there is no justification for this proceeding continuing. So the order that I will make today is that the proceeding is dismissed. 50 -- 2 of 3 -- 3 … HER HONOUR: I will order that the Plaintiff pay the Defendant’s costs of and incidental to this proceeding, including reserve costs, on a standard basis, to be 5 assessed or agreed. Thank you both. Thanks, Madam Bailiff. -- 3 of 3 --