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  • Unreported Judgment

Lake Laurel Pty Ltd v Nichols Constructions Pty Ltd

 

[2018] QSC 46

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Lake Laurel Pty Ltd & Anor v Nichols Constructions Pty Ltd & Ors [2018] QSC 46

PARTIES:

LAKE LAUREL PTY LTD ACN 010 702 511

(first plaintiff)

LUTZ BERGER

(second plaintiff)

v

NICHOLS CONSTRUCTIONS PTY LTD

(first defendant)

LESLIE EDWIN NICHOLS AND JUDELLE CHRISTINE NICHOLS

(second defendant)

FILE NO/S:

BS 3368 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers, without oral hearing

JUDGE:

Justice Brown

ORDER:

The Court orders that:

  1. Peter Ryan be joined as the third plaintiff pursuant to rule 69 of the Uniform Civil Procedure Rules 1999 (Qld).
  2. The plaintiffs have leave to amend the Claim and Statement of Claim pursuant to rule 375 of the Uniform Civil Procedure Rules 1999 (Qld) in the form of exhibit PVR3 to the affidavit of Philip Victor Roberts filed on 28 February 2018 identifying the interest of Peter Ryan in respect of the existing claims.
  3. The plaintiffs file and serve the Amended Claim and Statement of Claim by 4:00 pm on 14 March 2018.
  4. The matter be further reviewed by Justice Brown on 23 March 2018.
  5. The costs be costs in the proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where the plaintiffs apply to join a party as a third plaintiff pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants do not oppose the application – where the proposed third plaintiff is the assignee of rights subject of the claim in the proceedings – whether leave pursuant to r 69 should be granted

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the plaintiffs seek leave to amend the statement of claim pursuant to r 375 of the Uniform Civil Procedure Rules 1999 (Qld) to reflect the claims that are made by the plaintiffs and include an additional claim for monies owing – where the defendants do not oppose the grant of leave – whether leave pursuant to r 375 should be granted

Uniform Civil Procedure Rules 1999 (Qld) rr 69, 375

SOLICITORS:

RobertsLaw for the plaintiffs

Parker Simmonds for the defendants

Application

  1. This is an application by the plaintiffs to join Peter Ryan as the third plaintiff to the proceedings pursuant to rule 69 of the Uniform Civil Procedure Rules 1999 (Qld).  They further apply to amend the Claim and Statement of Claim to reflect the claims that are made by the existing plaintiffs and Mr Ryan and include an additional claim for further monies owing under the 2010 Loan Agreement, 2010 Guarantee and 2010 Mortgage. 
  1. The submissions from the plaintiffs state that there are no limitation issues, and the defendants have indicated that they do not oppose the application.  In that regard I note that the evidence shows that the defendants were served with the material and indicates they have no objection to the matter being heard on the papers. The defendants previously had stated that they did not oppose the application to join Mr Ryan or leave to amend the Claim and Statement of Claim to identify the interest of Mr Ryan or the orders sought.

Joinder

  1. Rule 69(1)(b) provides that the Court may at any stage of the proceedings order that a person be included as a party whose presence before the Court is necessary to enable the Court to adjudicate effectually and completely on all matters in dispute in the proceedings or if their presence would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceedings.

Consideration

  1. According to the affidavit of Philip Victor Roberts, since the commencement of the proceedings the first plaintiff assigned its remaining one half interest in a Loan Agreement dated 24 June 2010 and the Mortgage Agreement no. 713361340 to Peter Ryan pursuant to a Deed of Assignment of Debt dated 20 November 2017.  It is the plaintiffs’ contention that as a result of the assignment referred to, many of the claims identified in the plaintiffs’ Statement of Claim now belong to Peter Ryan.  Peter Ryan has consented to being joined as a third plaintiff in the proceedings. 
  2. By the proposed Amended Claim and Statement of Claim[1] the third plaintiff seeks to claim amounts previously being claimed by the first plaintiff under the 2010 Loan Agreement, 2010 Guarantee and the Mortgage which were previously claimed by the First Plaintiff.  The joinder of Mr Ryan pursuant to Rule 69(1)(b) is appropriate.  There is an additional claim being made by the third plaintiff seeking to claim an amount of $3,775,000 from the defendants under the 2010 Loan Agreement and 2010 Guarantee.  That does not appear, at least on the basis of what is pleaded in the Amended Statement of Claim, to significantly enlarge the scope of the proceedings. As stated above, there is no opposition from the defendant and the plaintiffs’ counsel has indicated that there are no limitation issues. In all of the circumstances I consider it appropriate to make the order that leave be given to amend the Claim pursuant to rule 375 of the Uniform Civil Procedure Rules 1999 (Qld) to identify the interest of Peter Ryan in respect of the existing claims as set out in exhibit PVR3 to the affidavit of Philip Victor Roberts. 

Conclusion

  1. I make the following orders:
  2. That Peter Ryan be joined as the third plaintiff pursuant to rule 69 of the Uniform Civil Procedure Rules 1999 (Qld).
  3. That the plaintiffs have leave to amend the Claim and Statement of Claim pursuant to rule 375 of the Uniform Civil Procedure Rules 1999 (Qld) in the form of exhibit PVR3 to the affidavit of Philip Victor Roberts filed on 28 February 2018 identifying the interest of Peter Ryan in respect of the existing claims.
  4. That the plaintiffs file and serve the Amended Claim and Statement of Claim by 4:00 pm on 14 March 2018.
  5. That the matter be further reviewed by Justice Brown on 23 March 2018.
  6. That the costs be costs in the proceedings.

Footnotes

[1] Exhibit PVR3 to the affidavit of Victor Roberts, CFI 56.

Close

Editorial Notes

  • Published Case Name:

    Lake Laurel Pty Ltd & Anor v Nichols Constructions Pty Ltd & Ors

  • Shortened Case Name:

    Lake Laurel Pty Ltd v Nichols Constructions Pty Ltd

  • MNC:

    [2018] QSC 46

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    09 Mar 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 46 09 Mar 2018 -

Appeal Status

No Status