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SUPREME COURT OF QUEENSLAND
Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 10)  QSC 297
First Plaintiffs: SANRUS PTY LTD AS TRUSTEE OF THE QC TRUST ACN 097 049 315
Second Plaintiffs: EDGE DEVELOPMENTS PTY LTD AS TRUSTEE OF THE KOWHAI TRUST ABN 26 010 309 529
Third Plaintiffs: H&J ENTERPRISES (QLD) PTY LTD AS TRUSTEE OF THE H&J TRUST ACN 077 333 736
First Defendants: MONTO COAL 2 PTY LTD ACN 098 919 414
Second Defendants: MONTO COAL PTY LTD ACN 098 393 072
Third Defendants: MACARTHUR COAL LIMITED ACN 096 001 955
SC No BS8609/07
DELIVERED EX TEMPORE ON:
29 November 2019
29 November 2019
The orders of the Court are that:
P L O’Shea QC for the plaintiffs
A M Pomerenke QC with A C Stumer for the defendants
Holding Redlich for the plaintiffs
Allens for the defendants
BOND J: By an order I made earlier today, I granted the plaintiffs leave to amend the further amended consolidated statement of claim in this proceeding. The necessity for amending the consolidated statement of claim arose consequent upon certain claims no longer being pressed, as first announced by senior counsel for the plaintiffs in court on 22 November 2019.
Briefly, that which may be characterised as the plaintiff’s primary claim for damages is no longer pressed and amendments have been made to fulfil that. Further, no claim of any nature is being pressed against the third defendant and amendments have been made to fulfil that. Finally, no damages claim is pleaded against the second defendant although allegations that the second defendant breached its contract are still pleaded.
Consequent upon those amendments having been formalised by my granting leave to amend and immediately thereafter allowing the plaintiffs to file in court an amended pleading, oral application was made on behalf of the second and third defendants for judgment.
So far as the third defendant is concerned, the basis of that application is obvious from what I’ve already said.
So far as the second defendant is concerned, technically the proposition is that the pleading now articulates only a claim for relief as against the first defendant. There is no contention that nominal damages are claimed against the second defendant consequent upon the alleged breaches of contract by it. There being no extant claim for relief against the second defendant, the proposition advanced on its behalf was that there now should be judgment in its favour. Senior counsel for the plaintiffs identified that the failure to advance a claim for relief against the second defendant was an oversight. In the present context, I am not minded to give judgment in favour of the second defendant in light of that articulation.
I agree with the submission made by senior counsel for the defendants that it is passing strange that in a case of this nature, a claim is prosecuted only for nominal damages against a party. It is apparent that there will be some further amendment pursued by the plaintiffs in relation to the statement of claim. Quite apart from that, there needs to be amendments to the claim in this proceeding.
The course that I will take in response to the oral application for judgment is as follows. I make these orders:
- (1)The plaintiffs’ claims against the third defendant are dismissed.
- (2)The defendants’ oral application for judgment in respect of the plaintiffs’ claims against the second defendant is adjourned to a date to be fixed.
- (3)The question as to the costs order which should be made in respect of order 1 be dealt with in oral argument commencing 9 December 2019.
- Published Case Name:
Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 10)
- Shortened Case Name:
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 10)
 QSC 297
29 Nov 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 308||19 Dec 2018||Plaintiffs' application for leave to rely on reports delivered outside a Court directed timetable allowed; plaintiffs' application for leave to amend their statement of claim granted; consequential alterations to Court directed timetable allowed; defendants' cross-application for an order that plaintiff not be permitted to rely on certain expert reports refused; plaintiffs' to pay defendants' costs thrown away on the indemnity basis: Bond J.|
|Primary Judgment|| QSC 144||07 Jun 2019||Plaintiffs' application for further disclosure pursuant to r 223(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) on the grounds of waiver of privilege dismissed (with ancillary directions as to document removal and redaction): Flanagan J.|
|Primary Judgment|| QSC 162||26 Jun 2019||Plaintiff's application for leave to adduce further expert evidence (and other ancillary orders) part way through the hearing of a trial refused: Bond J.|
|Primary Judgment|| QSC 185||01 Aug 2019||Defendants' application for leave to rely on two affidavits as lay evidence mid-way through trial granted subject to conditions: Bond J.|
|Primary Judgment|| QSC 199||12 Aug 2019||Plaintiffs' application for leave to rely at trial on new material in the joint expert reports and consequential leave to amend the plaintiffs' statement of claim granted; defendants granted leave to rely at trial on responsive expert reports: Bond J.|
|Primary Judgment|| QSC 210||27 Aug 2019||Provisional rulings on defendants' objections to expert evidence: Bond J.|
|Primary Judgment|| QSC 214||29 Aug 2019||Consequential directions as a result of the Court of Appeal's (majority) decision in  QCA 160: the plaintiffs have leave to produce a further report from Mr Chris Hartley by 3 September 2019 with ancillary directions as to what the evidence is to be directed to: Bond J.|
|Primary Judgment|| QSC 241||27 Sep 2019||Plaintiffs' not permitted to advance an unpleaded advice case; plaintiff's granted leave to rely on an expert report, but not for the plaintiffs' unpleaded advice case; rulings on defendants' objections to plaintiffs' expert evidence (following on from Bond J's provisional rulings in  QSC 210): Bond J.|
|Primary Judgment|| QSC 255||14 Oct 2019||Rulings on plaintiffs' objections to expert evidence: Bond J.|
|Primary Judgment|| QSC 297||29 Nov 2019||Second and third defendants' application for judgment in light of the plaintiffs' amendments to the consolidated statement of claim on 29 November 2019; plaintiffs' claim against the third defendant dismissed; second defendant's application for judgment adjourned to a date to be fixed: Bond J.|
|Primary Judgment|| QSC 5||31 Jan 2020||Upon the parties' settlement: the plaintiffs have leave nunc pro tunc to discontinue the whole of the claim against the first and second defendants (with no order as to costs): Bond J.|
|Notice of Appeal Filed||File Number: Appeal 6710/19||27 Jun 2019||-|
|Appeal Determined (QCA)|| QCA 160||20 Aug 2019||Appeal from  QSC 162 allowed; orders made on 18 June 2019 set aside; appellants permitted to adduce expert evidence in the form of the report of Mr Chris Hartley filed 10 June 2019 (save for certain paragraphs): McMurdo JA and Bradley J (Applegarth J dissenting).|