Dalrance Pty Ltd v Vullers & Ors [2003] QDC 41

State Reporting Bureau Transcript of Proceedings 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 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. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. DISTRICT COURT [2003] QDC 041 CIVIL JURISDICTION JUDGE ROBIN QC No 5044 of 1997 DALRANCE PTY LTD (ACN 010 927 992) AS TRUSTEE FOR THE CESNAR TRUST Plaintiff and HENDRIKUS J VULLERS and H & CT VULLERS PTY LTD (ACN 009 729 677) AS TRUSTEE UNDER NOMINATION OF TRUSTEE NO.K7567720 and C FREDERIKS PTY LTD (ACN 009 884 057) First Defendant Second Defendant Third Party BRISBANE ..DATE 20/03/2003 ORDER REVISED COPIES ISSUED State Reporting Bureau Date: 7 April, 2003 -- 1 of 7 -- 20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: Before the Court are cross-applications which originally came on for hearing before his Honour Judge McLauchlan QC on 6 December 2002. The defendant's application is for the striking out of the claim. The plaintiff's application is for leave to file amended pleadings. As the title of the proceedings indicates, the plaintiff is a trustee. The basis of the defendant's application is that as regards the plaintiff's claim for breach of contract tort, which I would understand to be misrepresentation and Trade Practices Act type relief, the relevant causes of action belong to and ought to be pursued by the beneficiaries under the trust arrangements. That contention was the issue before Judge McLauchlan and he expressed a clear view on it saying at page 13 of the transcript that he was "inclined to think that it should be struck out" which seems to me to involve a resort to tentative language not consistent with the definite view that I think his Honour reached. He said at the foot of page 14, "The alternatives seem to me to be to strike it out or, alternatively, grant some time to the plaintiff to see if it could put the proceedings in order in some way for the benefit of the beneficiaries. I think that as things stand the claim should be struck out but if you wanted to then, of course, you could commence other proceedings no doubt properly formulated or, alternatively, you might be able to do something about amending these proceedings." -- 2 of 7 -- 20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 Mr Stone, who was counsel for the plaintiff, which is represented today by Mr Looney, asked for a week to consider what ought to happen. What his Honour did was adjourn the applications to 20 December. In the end they have come on today before me. Mr Lilley, who appeared before his Honour, and again today appears for the defendants, on 6th December attempted to preserve for his clients the benefit of their victory, saying at page 20: "Your Honour, just to save reargument can it be indicated in the order the purpose of the adjournment because if your Honour's not sitting on the 20th I don’t want to come back and have to argue the strike out point again." His Honour said, "The adjournment and the record can show the adjournment being granted because it appears to me that on the pleadings as they stand the defendants have established that they ought to be struck out because the plaintiff doesn't have a cause of action and it's being adjourned so that the plaintiff's legal representatives can consider what they should do or may do by way of repleading with particular reference to the beneficiaries of the trust so it's left broadly so that they can consider and take such action as I (sic) think is appropriate." There are undoubtedly situations in which the Applications Judge may express views, even strong ones, about the merits of litigants' legal situations, which have no ultimate effect or, indeed, relevance. An example may be a summary judgment application which fails accompanied by strong intimations from the Judge who hears it that the plaintiff's claim is completely hopeless. Such in intimation is not in any way -- 3 of 7 -- 20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 binding on a trial Judge subsequently who may see things entirely differently. Another instance that I have mentioned in argument concerns situations in which leave to appeal is granted by an appellate Court, perhaps accompanied by strong intimations that the decision appealed is wrong, whereas the ultimate determination by the appellate court when the appeal itself comes on for hearing may be that the decision appealed was entirely correct. In the present circumstances, as I said at the outset, I have before me exactly the same applications as Judge McLauchlan considered. No new applications have been filed. I think it would bring the system into disrepute if I were to reach or even entertain reaching a contrary view to that expressed by his Honour. Mr Looney says that he has come armed today with additional arguments that were not made on the 6th of December. I am willing to accept that it might be open to Judge McLauchlan, he having made no formal order, to reopen the matter. I consider I am not so favourably placed and that considerations of comity and the integrity of the Court's procedures preclude my doing so. -- 4 of 7 -- 20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 My firm attitude is that I ought to perfect what Judge McLauchlan did by making the order sought in the defendant's strike out application, and that I ought not to revisit arguments he resolved. I have indicated, however, in light of Mr Looney's last minute application, that I adjourn the matter to Judge McLauchlan; that I will withhold making any formal order so that his Honour can be approached by me or by Mr Looney's instructing solicitors to ascertain whether he is prepared to entertain it. I would not wish to create any impediment to that happening. It might be noted that matters have not advanced beyond the 6th of December situation so far as the possibility of beneficiaries being brought in as substituted or new parties goes. I understand one of Judge McLauchlan's concerns to have been to preserve an advantageous date of commencement of proceedings with a view to sparing the plaintiff limitations difficulties. Mr Looney is in no better a position than was Mr Stone last year to apply for any particular orders about parties. The one exception to that situation is that on the other side of the record there appears to have been a misnomer of the first-named defendant in that there has been some confusion of father and son. Mr Lilley has indicated to the Court that he does not wish to say anything in relation to, what, a substitution or correction of name? Was is it, Mr Lilley? -- 5 of 7 -- 20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 MR LILLEY: I think it is a substitution, your Honour. HIS HONOUR: Can you identify the substitution? MR LILLEY: I think instead of Hendrikus J Vullers I think it becomes Hendricus Vullers - it becomes Hendricus Vullers with a "C" in Hendricus, not a "K". HIS HONOUR: So to the substitution of Hendricus, with a "C", Vullers for the present first-named defendant, Hendrikus, with a "K" Vullers. MR LILLEY: And a "J", initial "J" as well, your Honour. HIS HONOUR: The new one has got a "J"? MR LILLEY: No, the new one does not have a "J". The present one has a "J". HIS HONOUR: Well, it doesn't in the short heading that I've got. So in lieu of Hendrikus, with a "K" and the middle initial J, we substitute "Hendricus", with a "C". ... HIS HONOUR: I will order that you have the costs of your application, Mr Lilley, and make no costs order on the other one. ... ----- -- 6 of 7 -- 20032003 T09/NW1 M/T CMS32/2003 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 -- 7 of 7 --