Canekeel Pty Ltd v Francis [1999] QSC 282

370~7 State Reporting 8( 99/;2!6).. ("! \~ Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J lifo 1096 of 1999 CANE KEEL PTY LTD ACN 010 943 129 and TREVOR FRANCIS BRISBANE _) .. DATE 13/08/99 JUDGMENT Flllilr. TIle L:IW COllrts. Geor~e Stred. Brishalle. Q. -tOOO 1 REVISED COPfES ISSUED State Reporting Bureau Oate 3( / fJ / Plaintiff Defendant TdC(lliollc: r(7) JZ-t7 -tJ('O F:I:c ({)7) J2-t7 55.12 -- 1 of 5 -- 130899 T1/MT1 M/T 4245/99 (Williams J) HIS HONOUR: The plaintiff WitS the purchaser of some land - near Gatton _ After settlemellt it took steps to obtain possession from the defendanl:_ The plaintiff's case is that at the time of purchase it was represented to it by the vendors, the vendors solicitor and its own solicitor that the defendant was a monthly tenant. Having commenced the action seeking recovery of possession on that basis it was met with the defence that the defendant or a family company controlled by the defendant vias a lessee for a period of three years. The action has not progressed beyond the pleadings stage as between the plaintiff and the defendant. In the light of the issues raised in the defence the plaintiff now seeks to have joined as defendants firstly the vendors, Shane David Berlin and Jennifer Kay Berlin and a company associated with them, namely, Lockyer Irrigation Pty Ltd. Secondly, the two firms of solicitors, Melrose, King and Emerson and Ken Hooper and Associates, who acted as solicitors for the vendors. Thirdly the firm McNamara and Associates who acted as its solicitor with respect to the transaction. Finally, it is sought to join as a defendant Francisco Pty Ltd which is the company associated with the existing defendant and which is alleged in the defence to be the lessee for a term of three years. The existing defendant does not oppose the joinder of Francisco Pty Ltd 2 JUDGMENT 10 ( 30 40 ::;0 60 -- 2 of 5 -- 130899 T1/MT1 M/T 4245/99 (Williams J) but opposes the joinder of the other parties. The - defendant's argument is that it would be unfair and unjust to him and his company to have a complex costly action involving such a number of defendants when the critical issue between the plaintiff and them is whether the occupation of the existing defendant and/or Francisco Pty Ltd is as monthly tenant or lessee for a term of three years. It is clear that the vendors would be necessary witnesses if the action were to proceed as between the plaintiff on the one hand, the existing defendant and Francisco Pty Ltd on the other. Critical questions of issue estoppel could arise if the vendors were not parties, particularly because if the defendant lost he may well wish to sue the vendors because of their failure to perfect a lease for a term of years. Mr Cowen, who appeared for the vendors and their company, pointed out that whether there was a lease or a tenancy it is likely that someone would sue his clients and his clients in turn would in turn sue their solicitors. Again, at that stage critical issues of issue estoppel could arise. It seems to me that in the long run costs are likely to be saved if all parties are bound by the initial finding made as to whether or not the occupancy in question was a monthly tenancy or pursuant to a lease. 3 JUDGMENT 10 20 . 30 40 50 60 -- 3 of 5 -- 130899 T1/MT1 M/T 4245/99 (Williams J) It is also desirable, in my view, that if the matter is _ referred to al ternati ve dispute resolution all parties be represented so that all the llatters in issue can be resolved at the one time. If the vendors and their solicitors are joined then it seems to me that the plaintiff's solicitors should also be joined, though the issues there may be somewhat different; again at least they would be bound by the finding as to the basis of the defendant's possession. For those reasons I am of the view that the order sought should be made though I am conscious of the valid points made by Mr Peterson in his submissions on behalf of the Francis interests. The parties are agreed that the matter is within the jurisdiction of the District Court and that it should be remitted to that Court. In my view once the pleadings are closed it would be appropriate for an application to be made to have the question as to the nature of the occupancy of the Francis interests determined as a preliminary point. That is the view which I now hold but, of course, such a view may be affected by matters which emerge in the pleadings. So my remarks ought not be taking as binding on any District Court Judge but merely as an indication that it is an issue which I have left open and which probably calls for further consideration once the pleadings are closed. 4 JUDGMENT 10 o 30 c 40 c 50 60 -- 4 of 5 -- 130899 T1/MT1 M/T 4245/99 (Williams J) In those circumstances I am prepared to make an order in - terms of the draft which has been submitted to me. HIS HONOUR: There will be an order as per draft. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 5 --