Tingalpa Tyre & Mechanical Pty Ltd v Onza Industries Pty Ltd
[2021] QCA 252
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Tingalpa Tyre & Mechanical Pty Ltd v Onza Industries Pty Ltd[2021] QCA 252
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Tingalpa Tyre & Mechanical Pty Ltd v Onza Industries Pty Ltd[2021] QCA 252
Tingalpa Tyre & Mechanical Pty Ltd v Onza Industries Pty Ltd[2021] QCA 252
SUPREME COURT OF QUEENSLAND
CITATION: | Tingalpa Tyre & Mechanical Pty Ltd v Onza Industries Pty Ltd [2021] QCA 252 |
PARTIES: | TINGALPA TYRE & MECHANICAL PTY LTD ACN 091 681 542 (appellant) v ONZA INDUSTRIES PTY LTD ACN 603 227 229 AS TRUSTEE FOR THE PLATH FAMILY DISCRETIONARY TRUST (respondent) |
FILE NO/S: | Appeal No 1079 of 2021 SC No 10492 of 2016 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2021] QSC 1 (Bowskill J) |
DELIVERED ON: | 26 November 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 September 2021 |
JUDGES: | Fraser and Mullins JJA and Freeburn J |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – where the parties to the proceeding were companies associated respectively with two brothers – where the appellant claimed in the amended defence that there was an agreed proposal between the brothers for the appellant to purchase real property on terms that would have resulted in the payment of agreed outlays and with the appellant holding the net proceeds of any sale of the property for the two brothers – where the trial judge found the making of the proposal in the terms pleaded was not proved on the evidence and there was no agreed proposal before the appellant as trustee of a discretionary trust purchased the real property – whether the trial judge erred in concluding that the proposal in the amended defence was not implemented and did not create a constructive trust in favour of the appellant EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – where the appellant as trustee of a discretionary trust purchased real property – where the trial judge rejected the appellant’s claim in the amended defence that there was an agreed proposal between the brothers as to the terms on which the appellant purchased property – where the trial judge ordered that the respondent as the successor trustee of the discretionary trust held the property as the subject to an equitable lien in favour of the appellant for reimbursement of expenses reasonably incurred by the appellant as trustee of the discretionary trust, including funds due to the brother who appeared on behalf of the appellant – whether the trial judge erred in failing to find a constructive trust in favour of the appellant or the brother who appeared on the appellant’s behalf PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where the parties to the proceeding were companies associated respectively with two brothers – where the trial was conducted before the trial judge with one brother as the director of the appellant appearing with leave on behalf of the appellant and a solicitor appearing for the respondent – where in the course of determining the interlocutory application the trial judge raised the issue of the joinder of the director of the appellant as a party – where the trial judge made orders in favour of the respondent that affected the interests of the brother who appeared with leave on behalf of the appellant – where there was no application made to join the brother who appeared with leave on behalf of the appellant as a party to the proceeding – whether the trial should have proceeded without the brother who appeared with leave on behalf of the appellant being joined as a party to the proceeding Civil Proceedings Act 2011 (Qld), s 17 Uniform Civil Procedure Rules 1999 (Qld), r 62 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, cited John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, considered Nathan v Williams & Anor [2020] QCA 138, cited |
COUNSEL: | M Horvath and S F Lamb (pro bono) for the appellant J A S Ford for the respondent |
SOLICITORS: | Jeff Horsey Solicitor (pro bono) for the appellant Lewis & McNamara for the respondent |
- [1]FRASER JA: I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.
- [2]MULLINS JA: This dispute is between entities associated with two brothers, Ira Plath and Ondra Plath. It is convenient to refer to them by their given names. The brothers were in dispute over financial transactions between them and their entities. For the reasons given in Onza Industries Pty Ltd v Tingalpa Tyre & Mechanical Pty Ltd [2021] QSC 1 (the reasons), the first order the learned trial judge made was a vesting order under s 71 and s 78 of the Trustee Act 1925 (NSW) vesting in the respondent as trustee for the Plath Family Discretionary Trust (the trust) the property located at Aberdeen in New South Wales (the property) that was registered in the appellant’s name. The second order made by the trial judge was consequential in nature and directed against the appellant and its sole director Ira that they execute all documents and do all things necessary to give effect to the vesting order, including delivery of the certificate of title to the respondent’s solicitor. A third order was made declaring that the respondent as trustee of the trust holds the property subject to a lien securing the appellant’s equitable right of indemnity for expenses reasonably incurred while it was the trustee of the trust relating to funds contributed by Ira to the acquisition of the property and paid by Ira for renovation work carried out on the property, following accounting between the parties and Ira, as to any rental income received by Ira, or court order.
Background
- [3]The following summary of the background to the dispute is taken from the reasons (at [11]-[46]). Ondra is a qualified mechanic who was working for a business in Tingalpa that went into liquidation in about 1999. Ondra then established his own business called Tingalpa Tyre & Mechanical that operated from the premises his employer had previously occupied. The business name was registered on 10 February 2000. That business was operated as a partnership with Ondra and his wife Anita each having a 50 per cent interest in the business. That registration was cancelled on 3 March 2000 and the business was then operated by the newly incorporated company Tingalpa Tyre & Mechanical Pty Ltd (which is the appellant) that was incorporated on 21 February 2000. Its directors were Ira and Ondra and the secretary was Anita. Although Ondra asserted he was the sole shareholder, the documentary evidence showed that Ondra held one share and a company associated with Ira, International Blend Pty Ltd, held one share. Ondra worked for the appellant as a mechanic and Ira, who was not a mechanic, also worked for the business doing other work.
- [4]In June 2000 Anita was removed as the company secretary and Ira was appointed in her place. There was also a change in shareholding effected at this time. There was documentary evidence that referred to the issue of 98 shares to International Blend Pty Ltd. Ondra said that the change in shareholding was done on the advice of his father “to protect the business in the event of divorce”. There was documentary evidence (referred to at [19] of the reasons) to the effect that at some stage on or prior to 17 March 2020 that International Blend Pty Ltd’s shares were transferred to Ira (as the company search of the appellant that was in evidence showed the processing of the change of shareholding form on 17 March 2020).
- [5]Ira loaned the sum of $37,500 to Ondra to help him set up the business. Ondra’s and Ira’s sisters, Cheyenne and Alexis, also worked for the business. Cheyenne was the bookkeeper for the business from January 2001 and Alexis worked in administrative capacities from early 2002. Ira left working for the business in March 2001 and returned to Childers to assist their parents by refurbishing and operating their commercial fishing vessel which he continued to do until about December 2005. Ira ceased being a director of the appellant on 8 March 2001.
- [6]The brothers gave differing evidence on whether the sum of $37,500 was repaid. Because there was no documentary evidence to assist in resolving that factual dispute, the trial judge was not persuaded (at [36] of the reasons) to accept the evidence of either brother on this issue. The trial judge had noted (at [32]) that it was not essential to make a finding about whether or not that sum had been repaid.
- [7]In January 2006 Ira moved to Scone in New South Wales for work with a friend as earthmovers and for the purpose of that business Ira paid a deposit of $18,000 to purchase the property in March 2006. Ira and his friend could not source funds to complete the purchase. Ira then sought Ondra’s help in respect of the purchase. The trial judge accepted Ondra’s evidence that, because Ira had helped him financially when he set up the business, he considered it was proper to assist Ira to purchase the property, so Ira would not lose his deposit.
Purchase of the property by the trust
- [8]The trust was established on 1 July 2006 for the purpose of purchasing the property. Mr Ward, the accountant who assisted Ondra with the establishment of the trust, gave evidence that the reason for the setting up of the trust was because Ondra was purchasing the property and the trust was to provide protection in the event of a breakdown of Ondra’s marriage. Mr Ward said that Ondra’s existing company (which was the appellant) was appointed trustee of the trust and that he dealt only with Ondra in relation to the trust and not Ira. Ondra was nominated in the trust deed as the appointor of the trust.
- [9]The contract that Ira and his friend had entered into for the purchase of the property was rescinded and a new contract for the appellant in its capacity as trustee of the trust to purchase the property was entered into without losing the deposit that Ira had paid. The deposit of $18,000 was applied to the new contract to purchase the property for $180,000. The balance of $162,000 was funded by a loan from Suncorp. The trial judge found (at [66] of the reasons) that the loan was secured by a mortgage over Ondra’s and Anita’s house, a mortgage over the property and personal guarantees from Ondra and Anita. No additional security was provided by the appellant.
- [10]The loan repayments were made out of the business investment bank account in the name of the trust to the loan account in the name of the appellant. The funds to pay the loan came from rental income received for the property which was between $16,000 to $18,000 per year. The monthly loan repayments were $1,650. The trial judge accepted (at [53] of the reasons) the evidence of Ondra that the mortgage repayments were made from rental income and funds provided by the appellant.
- [11]One of the issues at the trial was the capacity in which the appellant purchased the property. The judge found (at [56] of the reasons) that the property was purchased by the appellant in its capacity as trustee of the trust for the reasons then set out in some detail. These included the evidence of the purpose for which the trust was established in July 2006, the description of the purchaser on the contract, letters from the solicitor who acted in the conveyance dated 4 and 31 August 2006 that confirmed the appellant held the land in its capacity as trustee of the trust, the identification of the appellant as trustee of the trust as the borrower in the loan contract, and payment of rent into the trust’s bank account from which loan repayments were made.
- [12]Another issue at the trial was the appellant’s contention that Ira proposed to Ondra that the appellant purchase the property on the basis set out in paragraph 4(e) of the amended defence that is referred to as the “proposal” and that Ira, Ondra and the appellant agreed with the proposal and the property was purchased in accordance with the terms of the proposal with the money advanced by Suncorp secured over the property and Ondra’s family home. The trial judge was not persuaded (at [63] of the reasons) that the proposal in the terms pleaded in paragraph 4 of the amended defence was put by Ira to Ondra, although the trial judge was inclined (at [69]) to the view there was some arrangement between Ondra and Ira in relation to the property. On the basis of the trial judge’s finding in relation to the proposal never being the subject of agreement between Ira, Ondra and the appellant, the trial judge rejected (at [70]) the appellant’s claim that the appellant holds the property on constructive trust for Ira and Ondra.
Events subsequent to the purchase of the property
- [13]The trial judge found (at [81] of the reasons) that Ira did carry out some renovation work on the property after it was purchased by the appellant as trustee of the trust and concluded (at [82]) that the appellant as trustee of the trust, prior to December 2014, had a liability to reimburse Ira for the work he did in relation to the property in the sum of about $35,000.
- [14]By 2010 Ondra’s marriage had broken down and in 2010 and 2011 he was involved in finalising the property settlement with Anita. Ondra made arrangements for Ira to be reappointed as a director of the appellant on 31 August 2010 and Ondra was removed as a director on that date, but Ondra remained the appointor of the trust. Part of Ondra’s property settlement required him to reduce the debt on the property. On 14 July 2011 Ira paid $87,312.52 towards paying out the Suncorp loan and another $20,000 was lent by Cheyenne to the appellant to pay out the loan.
- [15]It had been an issue in the trial as to whether the payment of $87,312.52 by Ira represented money owed by Ira to Ondra for what Ondra called “family loans”. The trial judge was not persuaded (at [89] of the reasons) of that contention in the absence of any supporting material and therefore found (at [90]) that Ira contributed $87,312 towards the acquisition of the property by the trust through this payment made in paying out the Suncorp loan.
- [16]The trial judge noted (at [93] of the reasons) that Ira was included within the scope of discretionary beneficiaries under the trust and was allocated distributions from time to time. The trial judge found (at [94]) that Ira’s contribution of $105,312 towards the purchase of the property was consistent with what the family did in helping one another out at times financially “in a fairly fluid way in so far as the company and Trust arrangements were concerned”. The trial judge therefore found (at [94]) that it was reasonable to infer that, given the amount of money he paid, there was an agreement that money would be repaid to Ira, given the trust had the benefit of the ownership of the property unencumbered. The trial judge also found (at [95]) that it was reasonable to infer there was an agreement that Ira would be paid or reimbursed for the sum of $35,000 for the renovation work he did on the property. That resulted in the conclusion (at [96]) that prior to December 2014 the trustee of the trust had a liability to reimburse Ira for his contributions to the cost of acquiring the property ($105,312) and the renovations to the property ($35,000).
- [17]After the death of their parents in 2010 and 2011, the relationships among the siblings began to deteriorate due to arguments over their parents’ estate. Ondra was reappointed as a director of the appellant on 21 April 2012, although by that time the appellant had ceased operating its business. On 4 December 2014 Ondra as appointor under the trust removed the appellant as trustee of the trust as of that date and appointed Onza Industries Pty Ltd as the new trustee of the trust. The appellant and Ira did not become aware of the change of trustee until July 2015. Since that time the appellant or Ira personally had asserted that it/he was the rightful owner of the property and Ira refused to deliver up the certificate of title to the respondent’s solicitors. In August 2015 Ondra was removed as a director of the appellant without his knowledge and the subject proceeding commenced in 2016 pursuant to which the respondent as trustee of the trust asserted it was the owner of the property and sought delivery of the certificate title from the appellant and for the appellant to execute all such documents and to all things necessary to cause the transfer of the property to the respondent as trustee to the trust. Ira has been the sole director of the appellant since August 2015. Ira received the rental income from August 2015 and has paid the expenses associated with the property since that time.
- [18]The trial judge therefore made the vesting order in respect of the property in favour of the respondent as trustee of the trust. The trial judge was satisfied (at [117] of the reasons) that it was appropriate to make the consequential orders against both the appellant and Ira as, even though Ira was not a party to the proceeding, he had played a central role in the events since mid-2015 and as the sole director of the appellant. The trial judge considered (at [118] of the reasons) that the appellant has an equitable right of indemnity for expenses reasonably incurred while it was the trustee for the funds contributed by Ira to the acquisition of the property and the amount to be paid for the renovations carried out by Ira on the property. As a practical matter, the trial judge noted (at [119] of the reasons) that there will need to be some accounting between the respondent, the appellant and Ira “in terms of what is owed to Ira, for his contribution to the acquisition and renovation of the property, and what is owed by Ira, for the rental income received (less expenses)”. The trial judge expressly noted (at [119]) that was beyond the scope of the proceeding, having regard to the pleadings and the parties.
Grounds of appeal
- [19]There are three grounds of appeal:
- (a)whether the primary judge erred in concluding that the proposal as pleaded in the amended defence was not implemented and did not create a constructive trust in favour of the appellant, Ira or International Blend Pty Ltd;
- (b)alternatively, whether the trial judge erred in finding that the arrangement as found at [69] and [91]-[97] of the reasons did not amount to a constructive trust in favour of the appellant, Ira or International Blend Pty Ltd;
- (c)whether the trial judge erred in making the orders that affected the rights of Ira and International Blend Pty Ltd when they were not parties to the proceeding.
- (a)
Did the trial judge err in rejecting the defence based on the proposal?
- [20]The terms of the proposal were set out at [60] of the reasons. The proposal can be summarised as Ira proposing to Ondra that the appellant should purchase the property on the basis that Ira would fund the deposit, legal costs and stamp duty, the appellant would borrow funds from Suncorp sufficient to complete the purchase, Ira would undertake works and renovations to make the property more valuable to rent and to increase its overall value, all rent would be applied to pay the outgoings and the balance of the rent would be applied to reduce the loan, the property would be sold after the loan was paid out, the appellant would repay Ira from the sale proceeds the deposit, legal costs and stamp duty and any expenses associated with the works and renovations plus an additional five per cent, and any balance remaining after the sale of the property would then be split evenly between Ondra and Ira.
- [21]The credit of the witnesses and the availability of documentary evidence was critical to the findings of the trial judge. The trial judge made the following general observation about credit (at [7] of the reasons):
“The true factual circumstances of the case are hard to determine. Neither Ira nor Ondra, the central witnesses, impressed as entirely credible or reliable. The dispute is clearly acrimonious … The relevant events occurred many years ago, beginning in 2000 but also significantly in 2006.”
- [22]The evidence-in-chief had been by way of affidavit and the trial judge noted (at [8] of the reasons) that, whereas the respondent was legally represented, the appellant was not and appeared by its director Ira and that neither party took any objection to the other party’s affidavits, although the affidavits on both sides included inadmissible material. The trial judge also noted (at [8]) that there was limited cross-examination of the witnesses which did not assist in resolving the conflicts in the evidence.
- [23]It was also relevant to the assessment of credit that the trial judge observed (at [9] of the reasons):
“It was apparent from the evidence that there was some (perhaps a lot of) misunderstanding – on both sides – about the legal implications of various things that were done, and a tendency to have become entrenched in a factually and legally misconceived view of the circumstances.”
- [24]The trial judge dealt with Ira’s evidence in cross-examination about the proposal at [62] of the reasons and the trial judge’s acceptance of Ondra’s evidence as to why Ondra decided to set in train the steps for the appellant to purchase the property as an investment at [64] of the reasons.
- [25]In view of these findings based on the trial judge’s assessment of the witnesses, the appellant undertook a difficult task in endeavouring to show that it was not open on the evidence for the trial judge to make those findings about Ira’s failure to put the proposal to Ondra and that Ondra did not agree with any such proposal before the appellant contracted to purchase the property. The appellant is unable to show by reference to the evidence adduced at the trial that the relevant findings were contrary to “incontrovertible facts” or were “glaringly improbable” or “contrary to compelling inferences”. See Fox v Percy (2003) 214 CLR 118 at [29].
Did the trial judge err in failing to find a constructive trust?
- [26]The difficulty for the appellant in relation to this ground is the findings that the trial judge made about the circumstances in which the appellant as trustee purchased the property. Those findings again depended on the trial judge’s assessment of the witnesses and were supported by the evidence of the accountant who set up the discretionary trust of which the appellant became the trustee to coincide with the purchase of the property and contemporaneous documents from the time of the purchase. The appellant is unable to challenge the findings on appeal for any of the reasons set out in Fox v Percy at [29].
- [27]There is no issue between the parties as to the law underpinning joint endeavour and common intention constructive trusts. The respondent refers to the observation in the joint judgment of Gleeson CJ and McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (1999) 196 CLR 101 at [10]:
“Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust.” (footnote omitted)
That observation is apt for the process of reasoning undertaken by the trial judge that rejected the appellant’s claim pleaded in the amended defence that Ondra had agreed to Ira’s proposal in respect of the property (that would have supported the imposition of a constructive trust to reflect that arrangement) and qualified the respondent’s title to the property as trustee by reference to the equitable lien in favour of the appellant set out in the third order made by the trial judge. There was a tendency on the appeal for the submissions made on behalf of the appellant to present a case in favour of the imposition of a constructive trust that did not accord with the defences in the amended defence. The appellant’s claim pleaded in the amended defence in support of a constructive trust in favour of Ondra and Ira depended on a case that was rejected by the trial judge that Ira made the proposal to Ondra in the terms pleaded in paragraph 4(e) of the amended defence and Ondra agreed to that proposal.
- [28]The equitable lien over the property in favour of the appellant incorporated in the third order reflected the alternative claim made in the amended defence for a lien over the property, where the respondent had established its entitlement otherwise to a vesting order in its favour in respect of the property.
- [29]This process of reasoning of the trial judge addressed the appellant’s case set out in the amended defence and is consistent with the approach endorsed in Giumelli. The appellant therefore does not succeed on this ground.
Did the trial judge err in making orders that affected Ira and International Blend Pty Ltd when they were not parties to the proceeding?
- [30]The trial was conducted before the trial judge with solicitor Mr Lang appearing for the respondent and Ira as the director of the appellant appearing with leave on behalf of the appellant.
- [31]It is apparent from the orders made by the trial judge that at least Ira’s interests were affected by the rejection of the appellant’s case based on the proposal that the appellant held the property on constructive trust for Ira and Ondra and that Ira’s interests were recognised indirectly only to the extent set out in the third order that any funds contributed by him personally to the appellant as trustee for the acquisition of the property and for renovation work (reduced by any net rental income received by him from the property) for which liabilities incurred as trustee the trial judge found the appellant was entitled to be reimbursed by the respondent as the successor trustee of the property be the subject of an equitable lien in favour of the appellant over the property.
- [32]The appellant submits that Ira was not given procedural fairness as a self-represented litigant in being joined as a party to the proceeding, so that he could be heard on orders that affected his rights. In the alternative, the appellant submits that as Ira was a necessary party and should have been joined as a party to the proceeding, he is now entitled as a non-party to have the orders set aside. The appellant relies on authorities including John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131] and [144] and Nathan v Williams & Anor [2020] QCA 138 at [177]. If the appellant succeeds on this ground, it is seeking a retrial.
- [33]In John Alexander’s Clubs, a third party mortgagee’s proprietary interests as a result of funding the company which purchased certain land and which had been nominated as purchaser as a result of the option holder’s exercise of the option to purchase would have been affected by the imposition of a constructive trust sought in a proceeding against the option holder and nominee purchaser by White City which was a party to an agreement with the option holder. White City was unsuccessful at first instance in its claim for a constructive trust in its favour over the subject land. It was successful in the Court of Appeal of New South Wales. At that stage of the proceeding the third party mortgagee applied to the Court of Appeal to be joined as a respondent and for orders setting aside the court’s earlier orders. That application was dismissed. But for the fact that the High Court allowed the appeal against the constructive trust imposed in favour of White City and reinstated the trial judge’s dismissal of the proceeding, the decision of the Court of Appeal refusing to join the third party mortgagee as a respondent would have been reversed, as the court held (at [138]) the third party mortgagee was a necessary party when White City had claimed a constructive trust over Torrens system of land, when cognisant of a mortgage which would be affected by its claim. Nathan v Williams is an example of the application of John Alexander’s Clubs to a dispute between two parties where the orders made after trial affected the debt owed to the third party bank where the bank had not been joined to the proceeding and therefore did not participate in the trial where it was held (at [179]) the bank could have influenced the outcome at trial in relation to the substantive findings made in respect of its debt that it was not owed to the bank by a specified company.
- [34]John Alexander’s Clubs and Nathan v Williams are distinguishable from this proceeding as the non-parties in this proceeding had a connection with the appellant and one of the non-parties, Ira, was in control at relevant times of both the appellant and the other non-party.
- [35]At various times during the proceeding, the appellant had legal representation. In fact, it is apparent the amended defence which was the basis for discerning the issues in dispute at the trial, though signed by Ira as the defendant (but presumably as the director of the defendant), had been prepared by solicitors who had acted at some stage for the appellant.
- [36]Before the trial, the solicitors for the respondent had applied to the court that certain questions be separately determined. The trial judge heard that application and Ira as a director of the appellant appeared with leave on behalf of the appellant at the hearing. The trial judge dismissed the application on 11 August 2020: Onza Industries Pty Ltd v Tingalpa Tyre & Mechanical Pty Ltd [2020] QSC 244. In the course of that decision the trial judge stated at [44]:
“It would also be preferable for the [appellant] to obtain legal advice and representation, including in relation to the pleadings and whether any amendments are required (for example, to more clearly plead a counterclaim against the [respondent]) or applications for joinder of any other party, such as Ira Plath. Having said that, although the solicitor for the [respondent] contended that Ira Plath is in a position of conflict with the [appellant], given his claim for reimbursement from the [appellant], it is not clear to me that is the case. On the [appellant’s] case, the property is held by it, on constructive trust for Ira and Ondra Plath, in accordance with the ‘proposal’, or alternatively, if held on trust for the Trust, that it has a right of indemnity from the Trust property in order to reimburse Ira Plath for the money he has contributed to the property. The position of the [appellant] and Ira Plath are not in conflict, but are aligned. Ira Plath does not appear to articulate a claim against the [respondent] directly.”
- [37]No counterclaim was ever brought by the appellant in the proceeding and no application was made by the appellant to join Ira, despite the clear indication by the trial judge in that interlocutory judgment given more than three months before the trial commenced that the appellant should obtain legal advice and consider an application to join a party such as Ira.
- [38]There is an irony in the appellant seeking a retrial on the basis that Ira should have been joined as a party, when the appellant which acts on the instructions of Ira did not join Ira as a party to the proceeding before the trial commenced and any re-trial would presumably require Ira to give evidence, when he gave evidence in support of the appellant’s defence before the trial judge by reference to his own conduct.
- [39]There is a suggestion in the appellant’s submissions that the court had power to order that Ira be included as a party pursuant to r 62 of the Uniform Civil Procedure Rules 1999 (Qld), even if an application for joinder was not made by the existing parties to the proceeding. Rule 62 provides:
“(1) Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding.
- (2)The court may order a person to be included as a party whose presence as a party is necessary to enable the court to adjudicate effectually and completely on all issues raised in the proceeding.
- (3)A person who is required under this rule to be included as a plaintiff or applicant and does not consent to be included in this way may be included as a defendant or respondent.
- (4)The court may dispense with a requirement under this rule for a person to be included as a party.”
- [40]The power of court to order a person be included as party in r 62(2) of the UCPR is a power that is exercised on application being made by a party or non-party to be joined as a party to a proceeding. Even where a litigant is self-represented or a corporation is appearing by a director without the assistance of a lawyer, it is not for the court to exercise unilaterally the power under r 62(2) without an application before the court seeking the exercise of that power.
- [41]Section 17 of the Civil Proceedings Act 2011 (Qld) also provides for a procedure to be followed where the court considers a person interested in the subject matter of a proceeding or the relief sought in the proceeding is not before the court and the proceeding ought not to proceed or relief ought not to be given without that person being given notice of the proceeding. This procedure would usually not be invoked without a relevant application being made by a party or non-party. Apart from the procedure under r 62 of the UCPR, s 17 of the Civil Proceedings Act allows the court to stay the proceeding until notice of the proceeding has been given to the interested person and, if that person does not elect to be included as a party to the proceeding, s 17(4) provides that the person is bound by the outcome of the proceeding or the relief in which the person was interested. This procedure under s 17 of the Civil Proceedings Act is a source of power for a court to make binding orders against the non-party upon notice being given to the non-party of the proposal for relief affecting the interests of the non-party where the non-party fails to elect to be included as a party to the proceeding.
- [42]The appellant also relies on Practice Direction No 10 of 2014 (Supervised Case List Involving Self-Represented Parties: Civil Jurisdiction Brisbane) and, in particular, paragraph 5.4 which deals with aspects of what occurs at a review hearing. Paragraph 5.4 states “[t]he Court shall make such orders as are appropriate and shall consider … (a) whether all the parties required to decide the case are parties to the case … .” The purpose of the Practice Direction is to provide supervision by a judge of the court in civil matters where a least one party is a self-represented litigant during the interlocutory stages and the preparation for trial to ensure the case is ready for trial and confined to the real issues in dispute between the parties. The fact that a proceeding involves a self-represented litigant does not change the adversarial nature of litigation and the Practice Direction does not require the court unilaterally to make orders which a party to a proceeding would prudently seek in preparing for trial.
- [43]To the extent that this ground of appeal is based on an allegation that the trial judge did not afford procedural fairness to Ira, it is not made out in the circumstances where Ira was given the opportunity to seek legal advice and consider whether he should be joined as a party to the proceeding and elected not to take the opportunity.
- [44]This ground was also framed in terms that the trial judge erred in making orders that affected International Blend Pty Ltd when it was not a party to the proceeding. By the time Mr Horvath of counsel and Mr Lamb of counsel prepared their written submissions in reply, a company search undertaken of International Blend Pty Ltd showed that it was deregistered on 15 March 2019. No company search of International Blend Pty Ltd had been put in evidence by the parties at the trial. The trial judge’s reference (at [19] of the reasons) to the transfer of 99 shares in the appellant from International Blend Pty Ltd to Ira was taken from the company search of the appellant that was included in the Resolution Bundle that was exhibit 1 at the trial. The change in shareholding form was received by ASIC on 17 March 2020 and processed on that date and the effective date of the change is shown in the company search of the appellant as the date the form was received and processed. The appellant’s reply submissions submit that the trial judge concluded that the transfer of 99 shares occurred on 17 March 2020. That does not reflect the trial judge’s statement (at [19] of the reasons) which recited what was recorded about the lodgement of the change in shareholding form on the company search of the appellant.
- [45]On the basis of the evidence before the trial judge, International Blend Pty Ltd no longer had a shareholding in the appellant, so that the orders made by the trial judge could not have any effect on International Blend Pty Ltd (even if it were not deregistered). In any case, International Blend Pty Ltd was a company under the control of Ira and the appellant cannot succeed on this ground that International Blend Pty Ltd was not a party to the proceeding for the same reasons that it cannot succeed in respect of Ira not being a party to the proceeding.
Order
- [46]It follows that the order which should be made is: Appeal dismissed with costs.
- [47]FREEBURN J: I agree with Mullins JA.