Deasy v Stewart & Anor [1993] QSC 40

~ Se. 93/oit' o ,~ ~f' State Reporting BUI"eau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold \\ithout the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 598 of 1992 BRIAN DANIEL DEASY and NEVILLE STEWART and KAY SKEEHAN No 1659 of 1992 B.I.D. PTY LTD and NEVILLE STEWART BRISBANE .. DATE 04/03/93 JUDGMENT 1 Fi::\f'-- ·-~. <~'~.:··:~~-:: ~3s~=o S~c:~ = ~ ·~c;=;cftl: ~s F~J~·2;::u Plaintiff Defendants Plaintiff Defendant -- 1 of 10 -- 040393 sgb (Ryan J) HIS HONOUR: In relation to action number 598 of 1992 I give leave to amend the writ and to deliver the amended Statement of Claim. I dismiss the application by the defendants that the Statement of Claim in its ultimate form be amended or struck out and that in the meantime all further proceedings in the action be stayed. I di-smiss the application for security for costs and I reserve the costs of these applications. In relation to action number 1659 of 1992 I refuse the application by the plaintiff for leave to amend the writ of summons and to deliver the amended Statement of Claim. I dismiss the application by the plaintiff that the defendant give security for costs. I order that the Statement of Claim be struck out and that the plaintiff pay the defendant's costs of this application, including reserved costs, to be taxed. I give liberty to apply. I publish my reasons. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 10 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr. Justice Ryan [Deasy v. Stewart and Skeehan] BETWEEN: BRIAN DANIEL DEASY AND: NEVILLE STEWART KAY SKEEHAN AND BETWEEN: No. 598 of 1992 No. 1659 of 1992 Plaintiff Sued as Proprietor of Oakland Stud in the State of Queensland Sued as Manager of Oakland Stud in the State of Queensland Defendants B.I.D. PTY. LTD. (ASC 009982058) AND: NEVILLE STEWART Plaintiff Sued as Proprietor of Oakland Stud in the State of Queensland Defendant REASONS FOR JUDGMENT - RYAN J. Judgment delivered 04/03/1993. Counsel: Plaintiff in person McGhee for the Defendants Solicitors: Greenhow & Yeates for the Defendant Hearing Date: 15 February 1993 -- 3 of 10 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr. Justice Ryan [Deasy v. Stewart and Skeehan] BETWEEN: BRIAN DANIEL DEASY AND: NEVILLE STEWART AND: KAY SKEEHAN AND BETWEEN: No. 598 of 1992 No. 1659 of 1992 Plaintiff Sued as Proprietor of Oakland Stud in theState of Queensland Sued as Manager of Oakland Stud in theState of Queensland Defendants B.I.D. PTY. LTD. (ASC 009982058) AND: NEVILLE STEWART Plaintiff Sued as Proprietor of Oakland Stud in the State of Queensland Defendant REASONS FOR JUDGMENT - RYAN J. Judgment delivered 04/03/1993. By a plaint issued in the Magistrates Court by Neville Clyde Stewart, he claimed from the defendant Brian Daniel Deasy the sum of $8,673 representing monies owing for agistment services rendered and goods provided by the plaintiff to the defendant at the defendant's request, together with interest and costs. -- 4 of 10 -- 2 On 25 March 1992, the Magistrate gave judgment for Stewart against Deasy in the sum of $13,377.90. On 3 April 1992, the judgment was entered against Deasy. In his judgment, the Magistrate said that he accepted the evidence of Stewart that he received a phone call from the defendant that he wanted two mares, "Truden" and "Windy Top" shifted and put to a stallion and that the defendant told him he was the owner and would pay the bills. He held that a third party, Dennis Brian Schofield was responsible for any fees relating to a horse "Abiding Miss" while Mr. Deasy was responsible for the fees in relation to the Mares "Truden" and "Windy Top". On 23 April 1992, Deasy commenced an action by writ number 598 of 1992 against Stewart and one Kay Sheehan, alleging inter alia that they had obtained the judgment through conspiracy and fraud. The defendants entered a conditional appearance, denying the jurisdiction of the court to entertain the action against them without their consent. A statement of claim was delivered on 4 June 1992. A defence was delivered on 2 July 1992. Stewart took out garnishee summonses in respect of the Magistrates Court judgment. The first was directed to the Ipswich Turf Club (Inc), the second to the Queensland Turf Club, the third to the Brisbane Amateur Turf Club, and the fourth to the Queensland Turf Club. On 14 September 1992, Deasy filed an application to the Magistrates Court, seeking that execution of judgment be stayed until the Supreme Court Action 598 of 1992 was determined by the Court as it related partly to conspiracy and fraud by the -- 5 of 10 -- 3 plaintiff, and that the plaintiff pay to the Court all garnished monies which he had obtained through execution of the judgment. The grounds given were that (1) the monies garnished were prize money earnings of "My Minister" which was owned and leased by the Deasy Family Trust and the plaintiff had no judgment against the Deasy Family Trust; and (2) the Supreme Court Action was not an appeal, it related to ownership of the horses "Windy Top" and "Truden", which Stewart sold on behalf of B. I. D. Pty. Ltd. eleven months prior to the proceedings in which the Magistrate found Deasy responsible, not B.I.D. Pty. Ltd. On 1 October 1992 this application was dismissed. The statement of claim was struck out by an order of Williams J. on 4 November 1992, but leave was granted to deliver a fresh statement of claim. On 17 November a fresh statement of claim was delivered. The defendants have applied for an order that the statement of claim be amended or struck out, and that in the meantime all further proceedings in the action be stayed. They have also applied for orders that the plaintiff give security for the defendants' costs, and that in the meantime the proceedings be stayed. On 18 December 1992 Lee J. had adjourned an application to strike out the statement of claim, and the plaintiff was given leave to deliver a third statement of claim. The plaintiff has deposed that he is a director of the trustee company, B.I.D. Pty. Ltd., which is the trustee of his family trust, "The Deasy Family Trust". He has set out a new writ of summons and statement of claim. He seeks to amend the -- 6 of 10 -- 4 writ so that the plaintiffs are himself and B.I.D. Pty. Ltd., and he claims:- (a) A declaration that at the relevant times the second plaintiff was the owner as to 50% of "Abiding Miss", "Windy Top", "Truden" and the foals; (b) In the alternative a declaration that at all relevant times the first plaintiff was the owner as to 50% of "Abiding Miss", "Windy Top", "Truden" and the foals; (c) Damages, costs and interest. By the amended statement of claim he sets out allegations to support the claims in the writ. An examination of the amended writ and statement of claim shows that, the issue is now very different from that stated in the original documents. It raises an issue as to the ownership of five racehorses and as to the right of the defendants to sell these horses, and it claims damages for the wrongful sale of the horses by the defendants. It does not seek to litigate again any issue decided in the Magistrates Court. I consider that leave should be given to amend the writ and to deliver the amended statement of claim. I dismiss the application by the defendants that the statement of claim in its ultimate form be amended or struck out, and that in the meantime all further proceedings in the action be stayed. In relation to the defendants' application for security for costs, there is uncontested evidence that Mr. Deasy has no funds (he stated this in my presence) but he said that the Deasy Family Trust has ample assets. There is no credible testimony which gives reason to believe that the second plaintiff will be unable -- 7 of 10 -- 5 to pay the costs of the defendants if successful in their defence. I can see no basis for ordering that the first plaintiff provide security for costs. There is nothing to suggest that he is ordinarily resident out of the jurisdiction. Accordingly I dismiss that application. I reserve the costs of these applications. On 10 November 1992, B.I.D. Pty. Ltd. as trustee for the Deasy Family Trust issued writ no 1659 of 1992 against Stewart, seeking inter alia declarations that Stewart has no claim on the assets and earnings of the Deasy Family Trust, and that the racehorse "My Minister" is jointly owned and leased by the Deasy Family trust. The defendants entered a conditional entry of appearance. A statement of claim was delivered on 30 November 1992. The plaintiff sought orders by a summons returnahle on 15 December 1992: (a) That Neville Stewart has no claims over the prize money earnings of the racehorse "My Minister"; (b) This Court in relation to this matter brought by the trustee B.I.D. Pty. Ltd must determine whether Neville Stewart has a claim over the earnings of the said horse, the joint property of the trust; (c) That until the Court decides this matter, the defendant be denied any claims from the earnings of the horse "My Minister". The application was dismissed, and the applicant was ordered to pay the respondents' costs to be taxed. -- 8 of 10 -- 6 On 18 December, leave was given to the plaintiff to deliver an amended statement of claim. The defendant has applied for orders that the plaintiff give security for the defendants' costs and that in the meantime all proceedings be stayed. It has applied also for orders that the statement of claim be amended or struck out. The plaintiff has applied for leave to amend the writ of summons and to deliver an amended statement of claim and that the defendant give security for costs. In the draft amended writ, the plaintiff claims: (a) A declaration that the plaintiff is the owner and lessee of "My Minister" in the shares held by B. D. Deasy, Brian Daniel Deasy and Irmtraud Therese Deasy; (b) A declaration that the plaintiff was and is entitled to any prize money earned by "My Minister" pursuant to the shares held in the names of Brian Daniel Deasy and Irmtraud Therese Deasy, and B.D. Deasy respectively; (c) Damages, costs and interest. The submission for Stewart was that the statement of claim is wrongly directed at him, and that it was against the garnishee that any declaration should be made. The draft statement of claim alleges that on 25 March 1992 the defendant obtained a money judgment in the Brisbane Magistrates Court against Deasy in the sum of $13,377.90. Pursuant to the judgment the defendant has on a number of occasions issued garnishee summonses in the Magistrates Court addressed respectively to the racing bodies where "My Minister" races. Pursuant to the said garnishee summonses the defendant has wrongfully received payment from such -- 9 of 10 -- 7 racing bodies of the prize money earned by "My Minister" which is due to the plaintiff. There is nothing in the draft amended statement of claim that gives a basis for claiming any remedy in these proceedings against the defendant. Accordingly, I refuse the application by the plaintiff for leave to amend the writ of summons and to deliver the amended statement of claim. I dismiss the application by the plaintiff that the defendant give security for costs. There is no basis which would justify such an order. I order that the statement of claim be struck out. I order the plaintiff to pay the defendants costs of this application including reserved costs to be taxed. -- 10 of 10 --