CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd
[2007] QDC 135
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- Unreported Judgment
- CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd[2007] QDC 135
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CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd[2007] QDC 135
CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd[2007] QDC 135
DISTRICT COURT OF QUEENSLAND
CITATION: | CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd [2007] QDC 135 |
PARTIES: | CB RICHARD ELLIS (C) PTY LTD ACN 003205552 Applicant/plaintiff V WINGATE PROPERTIES PTY LTD ACN 008297023 Respondent/defendant |
FILE NO/S: | BD 2086/2005 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 27 June 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 June 2007 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: | Application dismissed |
CATCHWORDS: | PRACTICE – PRACTICE AND PROCEDURE – ADDITION OF PARTIES – AMENDMENT OF PLEADINGS – assignment of contractual rights – whether necessary to join assignor as plaintiff, even if no relief claimed – claims by trustees UCPR, r 69 Cases considered: Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140 Cooper v Dexter [2003] QDC 31 Kestrel Coal Pty Ltd v Longwall Roof Supports Ltd [2003] QSC 187 Thomas v National Australia Bank Limited [2000] 2 Qd R 448 Weddell v Pearce and Major [1988] Ch 26 at 38-40 |
COUNSEL: | M K Stunden for applicant plaintiff J W Peden for respondent defendant |
SOLICITORS: | Nicol Robinson Halletts for applicant plaintiff Flower and Hart for respondent defendant |
- [1]In this action the plaintiff, CB Richard Ellis (C) Pty Ltd (“C”), alleged[1] that it was engaged by the defendant in June 2000 to source tenants and provide leasing services for a project called the Ipswich River Link Project (“the agency agreement”); that this agreement was later varied in terms which meant the defendant would pay the plaintiff $200,000 as a “walk away” fee (“the varied agency agreement”); that on 29 June 2004 C issued an invoice to the defendant for $220,000 payable pursuant to the varied agency agreement; and that the defendant has, wrongly, failed to pay that sum.
- [2]Subsequently, the plaintiff’s solicitors delivered a substantially amended claim and statement of claim to the defendant. In this amendment C is shown as the third defendant and, CB Richard Ellis (M) Pty Ltd (“M”) is added as a first plaintiff and CB Richard Ellis (B) Pty Ltd (“B”) as a second plaintiff. In the current application C seeks orders under r 69 of the Uniform Civil Procedure Rules (UCPR) to add M and B to these proceedings, and for leave under r 375 to file and serve the amended statement of claim.
- [3]The amended claim, despite the addition of M as first plaintiff and B as second plaintiff, continues to show only a claim or prayer for actual relief by C. The amended statement of claim is a complex document which, relevantly, asserts:
- (a)that at all material times M was trustee of the Milton Unit Trust;
- (b)that B was the trustee of the Richard Ellis Queensland Trust, until 1 March 2002 when it retired from the office of trustee;
- (c)that C was the trustee of the Richard Ellis Queensland Trust after 1 March 2002;
- (d)that in about June 2000 M entered into the agency agreement with the defendant;
- (e)that in or about October 2000 M assigned the benefit of the agency agreement to B; or, in the alternative, that by novation B and the defendant entered into an agency agreement of the kind previously alleged between M and the defendant;
- (f)that in the latter part of 2001 B and the defendant entered into the varied agency agreement, which was recorded in writing on or about 11 February 2002;
- (g)that M and B provided services referable to the agreements;
- (h)that C issued an invoice to the defendant for those services on 29 June 2004;
- (i)that the defendant has failed to pay the amount owing, $220,000, to C pursuant to the varied agency agreement.
- [4]The application was opposed. During the course of oral argument the plaintiff’s counsel indicated a change in his instructions to the effect that the proposed amended claim and statement of claim would be further amended so as to also claim relief by the proposed second plaintiff, B.
- [5]Despite this concession difficulties remain with the pleading. The first concerns the addition of the proposed new first defendant, M. Rule 69(1)(b) permits the addition of parties whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding, or a person whose presence before the court would be desirable, just and convenient for that purpose. But no relief is sought by or on behalf of M. The presence, and pursuit of a cause of action by a party proposed to be added to the proceeding is a logical element associated with the discretion arising under r 69(1)(b)[2].
- [6]Counsel for the existing and proposed new plaintiffs met this submission by pointing to the fact that the new pleading alleges[3] that the first plaintiff assigned the benefit of the agency agreement to the second plaintiff (or, in the alternative, it was novated between the second plaintiff and the defendant) but with an abundance of caution B, the assignee from M would join M as assignor either as an additional plaintiff, or an additional defendant. The authorities cited for this proposition were Weddell v Pearce and Major [1988] Ch 26 at 38-40; and, Thomas v National Australia Bank Limited [2000] 2 Qd R 448.
- [7]The first difficulty with the submission is, however, that the original agency agreement is not sued upon by either B, or C (and certainly not M). The only relief sought is in respect of the latter, varied agency agreement, which was produced in evidence and which clearly records an agreement between B and the defendant. The usual reason for adding an assignor is to avoid the possibility that, notwithstanding the defendant may pay the assignee, it might then be faced with a claim by the assignor[4]. That is not, however, a risk which could arise here because neither B nor C rely upon the original agency agreement as a basis for the claim for indebtedness. It forms part of the relevant background but is not, it appears, critical to the claim which is pursued.
- [8]It is appropriate, too, to briefly mention some other problems with the pleading in connection with M. The first is that it is alleged at all material times to have been a trustee of the Milton Unit Trust but the relevance of that assertion is unclear; B and C are alleged to have been trustees, at all material times, of a quite different trust – the Richard Ellis Queensland Trust. Secondly, in an affidavit from an employee of one of the plaintiff companies, Mr Ott shows he was materially involved in all the transactions, but says nothing about the reason for movement, on the plaintiff’s side of contractual arrangements with the defendant between M, B, and C.
- [9]Another difficulty arises on the face of the pleading also concerns the position of B and C as trustees of the Richard Ellis Queensland Trust. It is not alleged that either B, or C entered into the varied agency agreement as a trustee. That agreement was produced in evidence and, again, on its face simply shows a contract between B and the defendant. C is, then, on the face of the pleading a third party. Presumably, it is intended to allege that C acquired rights under the varied agency agreement (after it replaced B as trustee). None of this is however, presently, pleaded.
- [10]Ordinarily the court would strive, through submissions from and exchanges with the parties in applications of this kind, to repair and reconstruct the pleading so as to minimise excessive delay and complication arising from interlocutory steps. The foregoing analysis of the proposed amended claim and statement of claim shows, however, that it requires substantial reconsideration and, as the defendant’s counsel suggested during oral submissions, the better course would be to prepare a new claim and pleadings and debate it with the defendant’s advisors before the matter is advanced, either by another application or amendments which are not opposed.
- [11]That was a course, the material shows, which had previously been proposed by the defendant’s advisors, but not, taken up. While, as the evidence shows (and the new pleading confirms), the plaintiff/s have some internal difficulties arising, perhaps, from a lack of precision in their internal arrangements so far as negotiations and agreements with the defendant were concerned, the reduction of the legal effect of those transactions to the form of a satisfactory pleading does not seem to present insurmountable difficulties.
- [12]For these reasons I will dismiss C’s application.
Footnotes
[1] Statement of claim filed 13 December 2006
[2] Cooper v Dexter [2003] QDC 31; Kestrel Coal Pty Ltd v Longwall Roof Supports Ltd [2003] QSC 187; Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140 per Helman J at para [6]
[3] In para 2DA
[4] Thomas v National Australia Bank Limited (supra) per Pincus J at 458