DISTRICT COURT OF QUEENSLAND

1. [1]
   In this matter, applications were brought before the court on 17 May 2010 seeking orders that orders obtained in each of these two proceedings^[1] be set aside as they were obtained by fraud, that enforcement of the orders be stayed or other appropriate relief given as facts have arisen and facts have been discovered after the orders were made that if discovered in time would have led to a different outcome, and various consequential orders including an order that the plaintiffs be restrained from commencing further proceedings against the defendant, and that a caveat lodged by the plaintiffs be removed.  On the face of the defendant’s material, the applications were served on the plaintiffs, but there was no appearance by or on behalf of either plaintiff when the applications came on for hearing.  The proceedings have a complex history, and it may be useful to refer to it before giving detailed consideration to the defendant’s applications.

Bundaberg claim 36/06

2. [2]
   By a claim filed in the Bundaberg registry on 22 September 2006 the plaintiffs^[2] claimed a declaration that a Form 7 notice to remedy breach of covenant dated 14 August 2006 and notice of termination of lease supplied 11 September 2006 by the defendant to the plaintiff be dismissed [sic], and a final injunction be granted restraining the defendant from interfering in the peaceful enjoyment of the plaintiffs’ rights in respect of a particular registered lease.  The statement of claim alleged the plaintiffs were trustees of the Moore Investment Trust, and the defendant owned certain land in respect of which the plaintiffs held a registered lease as a result of the plaintiffs’ acquiring a leasehold interest by a contract which settled 12 May 2005.

3. [3]
   The statement of claim alleged that on 11 September 2006 a purported notice of termination was served on the plaintiffs by the defendant, purportedly in reliance on a notice to remedy breach of covenant alleged to have been, but not, served on 14 August 2006.  The plaintiffs further alleged the notice of termination was invalid and unenforceable because a notice to remedy breach of covenant had not been properly served, and because the plaintiffs disputed matters contained in the notice to remedy breach, because the notice of termination sought a sum of money not due and payable in accordance with the lease, and that “any valid matter raised under the notice to remedy breach has not otherwise been remedied” [sic].  The only relief sought was a declaration and an injunction.  There was no allegation that the defendant had instituted or threatened to institute proceedings in the District Court to recover possession of the relevant land, nor was relief against forfeiture under the Property Law Act expressly sought.

4. [4]
   With the claim and statement of claim there was filed an application seeking an injunction to restrain the defendant from entering or interfering in any way with the business of the plaintiffs pending the determination of the plaintiffs’ claim. That came on for hearing before another judge^[3] on 22 September 2009, when a solicitor appeared for the plaintiffs and Mrs Berthelsen appeared for the defendant; the plaintiffs were granted leave to read and file the claim and statement of claim and the application and an affidavit of Mr Moore, all dated 22 September 2006.  That affidavit exhibited a copy of the lease which had been granted by a previous owner of the land, a deed of assignment executed by the plaintiffs and the previous lessee, a copy of the notice to remedy breach of covenant, a copy of a letter dated 14 August 2006 from the defendant, a copy of the notice to terminate and copies of letters from the plaintiffs’ solicitor to the defendant dated 11 September and 14 September 2006.  The affidavit said the business carried on on the leased premises was acquired for $60,000 “and is within the jurisdiction of this court”.  It also alleged that certain threatening language was used by Mrs Berthelsen on a particular occasion.

5. [5]
   That judge on that day made a temporary order restraining the defendant from entering or interfering in any way with the business of the plaintiffs, and adjourned the application to 23 October, reserving the costs.  On 20 October 2006 an amended application was filed, which also sought relief from forfeiture pursuant to s 124 of the Property Law Act, and an order that the defendant cause the re‑registration of the lease with the registrar of freehold land title, or in the alternative a further order restraining the defendant in various ways until trial.  With the application was filed an affidavit by Mr Moore in which he deposed that he and the other plaintiff were trustees and “I am authorised to make this affidavit on behalf of Robyn” (para 1).  The affidavit responded to the specific matters referred to in the notice to remedy breach of covenant.  It also exhibited a copy of a further letter from the solicitors dated 4 October 2006, a copy of the certificate of insurance, copies of a cheque and cheque butts, a further letter from the solicitors for the plaintiffs dated 12 October 2006 and a title search for the land which showed that on 11 April 2006, after the benefit of the lease was transferred to the plaintiffs, the land was transferred to the defendant.  However, a current title search later the same day did not include reference to the lease in favour of the defendants.  The affidavit said that a request to terminate the lease had been registered after being filed by the defendant, and a copy was exhibited of a declaration dated 11 September 2006 by Mrs Berthelsen that the notice to terminate, a copy of which was attached, was given personally to Mr Moore on 11 September 2006.

6. [6]
   There was a further affidavit by Mr Moore also filed 20 October 2006, which again stated that he was authorised to make the affidavit on behalf of Mrs Moore.  The affidavit referred to the income he made from the business he operated, and that there were no other premises from which he could operate that business, and that this was his sole source of income.  Otherwise, the affidavit referred to matters in a defence and counterclaim of the defendant seen on 20 October 2006.

7. [7]
   On 23 October 2006 a notice of intention to defend and defence and counterclaim were filed on behalf of the defendant.  The defence admitted a number of the facts alleged in the statement of claim, alleged that a notice to remedy breach of covenant was served on Mr Moore on 14 August 2006, and alleged that there were breaches of the lease and that those breaches remained unremedied and that the defendant was owed the money referred to in the notice of termination, and denied that the plaintiffs were entitled to the relief they sought.  No point was made about the jurisdiction of the District Court.  The counterclaim alleged various provisions of the lease, that the lease had been breached in various ways, that the defendant was owed money for an increase in rent as a result of a CPI rental adjustment, and claimed judgment of possession of the land the subject of the lease, and damages for breach of the lease.

8. [8]
   Once that counterclaim was filed, there were proceedings instituted by the defendant to recover possession of the land under s 68(1)(b)(xi) of the District Court of Queensland Act 1967, so that under s 70 of that Act the District Court had power to relieve against forfeiture under s 124 of the Property Law Act 1974.  Up to this point it does not seem clear that the District Court had any jurisdiction in this matter.  There is no general jurisdiction conferred by s 68 to make declarations or to grant injunctions, nor any general jurisdiction in relation to disputes between landlord and tenant.  There is jurisdiction to restrain any actual threatened or apprehended trespass or nuisance to land, and jurisdiction for the determination of any question of construction arising under a deed, will or other written instrument and for a declaration of the rights of the persons interested, but in the present case the issue raised in the plaintiffs’ pleadings was not in relation to either of these matters, but in relation to the factual issue of whether there had been a breach by the defendant, whether various notices had been given, and whether the lease had been validly terminated.  Even the application for relief against forfeiture seems to me to have been premature, since it was not until proceedings were instituted or threatened in the District Court to recover possession of the land that s 70 of the Act was activated.  There is no evidence of threats to institute the proceedings prior to the filing of the notice of intention to defend and defence on 23 October.  At that point, however, it does seem to me that the effect of s 70 was that this court had jurisdiction under s 124 of the Property Law Act.  It follows that the provisions of s 69, to make orders including by way of declaration or injunction “for the purposes of exercising the jurisdiction conferred by this part” were thereby activated.

9. [9]
   The defendant filed with the notice of intention to defend and defence an application seeking judgment for possession of the land and damages, in substance summary judgment on the counterclaim. In support of this application and in response to the plaintiffs’ application, the defendant filed an affidavit by Mrs Berthelsen.  The affidavit verified the defendant’s case in relation to the alleged breaches of the lease, and gave the defendant’s version of what happened on 14 August 2006, at which time it was said that a notice to remedy breach of covenant was left on the premises.  It also exhibited correspondence between the solicitors for the parties, and contained evidence about various other factual matters in relation to the behaviour of the plaintiffs and the state of the leased premises.^[4]

10. [10]
    The affidavit referred to the fact that the defendant has claimed that, as a result of the use of the premises by Mr Moore for residential purposes outside business hours, the defendant was entitled to compensation for that usage and had claimed compensation equal to the amount of the rent payable under the lease, so that the amount payable was in substance double rent.  The affidavit contained further details of the defendant’s claim for rent and other moneys payable under the lease.  In the affidavit Mrs Berthelsen also admitted that she took steps to arrange for the removal of the registered lease on 11 September 2006, when she lodged a general request to register the re‑entry by the lessor pursuant to the Land Title Act s 68, a copy of which was exhibited.  This occurred prior to receiving any legal advice and prior to receiving a letter from the plaintiffs’ solicitors.  Also filed on 23 October 2006 were an affidavit from Mr Derek Berthelsen contradicting a factual allegation made by Mr Moore in relation to the removal of some trees, and making some allegations in relation to the behaviour of Mr Moore as lessee, and an affidavit of Justyn Berthelsen, the son of the other deponents, as to what occurred on 14 August 2006.  In an affidavit by Mr Moore filed 23 October 2006, again said to be made with the authority of Robyn Moore, he gave his version in relation to a number of matters referred to in the affidavits of the Berthelsens.

11. [11]
    The applications came before another judge on 23 October 2006, who made the following orders:

“1. The plaintiffs be relieved from forfeiture of the lease referred to in the statement of claim pursuant to s 124(2) of the Property Law Act.

2. All further steps in this proceeding (including the defendant’s counterclaim) be stayed permanently.

3. On or before 25 October 2006 the defendant do all things, sign all documents and pay all costs (including any costs incurred by the plaintiffs) necessary to register the lease referred to in the statement of claim in a register of freehold land title.

4. Pending compliance with all the three above, the defendant is restrained from granting a [inconsistent] lease … to any person.

5. The application for summary judgment by the defendant is dismissed.

6. The defendant pay the applicant’s costs on a standard basis for the entirety of the proceedings.”

12. [12]
    There was no appeal against that order. I have not located any reasons for the order in the file; oral reasons were given at the time and I have obtained from that judge a copy of the transcript of them. A costs statement in respect of the costs order was filed on 4 October 2007 claiming $9,816.49; on 4 December 2007 the costs were allowed as claimed pursuant to r 709; the defendant had filed an objection to the costs statement, but it was directed to the merits of the plaintiffs’ claim rather than the substance of the costs statement.

13. [13]
    On 29 February 2008 an enforcement warrant for the seizure and sale of property to enforce the costs order was issued, but on 4 August 2008 the plaintiffs filed an application “that the respondent in all court documentation issued under the file number 36/06 including the order made 23 October 2006 be amended to Devanjul Pty Ltd as trustees for Jadvek Berthelsen Family Trust”.  An affidavit of Mr Moore filed 4 August 2008 in support of that application revealed that on 14 March 2008 the plaintiffs had attempted to registered the enforcement warrant against the defendant’s land, part of which was leased to the plaintiffs.  The Titles Office had rejected the warrant, raising two issues.  The first was that the land was held in a representative capacity, whereas the warrant on the face of it was against the company in its individual capacity.  The second was that the request on the face of it had only been signed by one applicant (apparently Mr Moore) and the Titles Office required both trustees to execute it.  The request had merely said “the applicant Stanley Gordon William Moore is authorised to execute the request on behalf of the trust.”

14. [14]
    As to the former issue, the affidavit exhibited a copy of the contract dated 31 January 2006 by which Coral Isles Holdings Pty Ltd sold the land to “Devanjul Pty Ltd ATF Jadvek Berthelsen Family Trust”.  It also exhibited a copy of the transfer to the defendant “as trustee”, a copy of the trust deed (presumably obtained from the Titles Office) and a copy of the Titles Office search showing that the defendant held the land as trustee.

15. [15]
    The affidavit also referred to later proceedings in the District Court, following a further attempt, by a notice to remedy breach of covenant dated 24 April 2007 and a notice to terminate dated 25 May 2007, by the defendant to terminate the lease.  As a result the plaintiffs commenced proceedings by originating application in the District Court at Bundaberg No. 46/07 summarised below.  According to the affidavit, following a two‑day hearing on 6 November 2007 another judge made an order giving relief from forfeiture, and an order that the respondent pay costs.  Those costs were said to have been assessed at $33,162.03.  The plaintiffs sought to amend the orders, particularly the orders for costs, against the defendant by making it applicable to the defendant as trustee of that trust.

16. [16]
    As to the other matter, Mr Moore deposed to the fact that, although the lease was assigned to himself and his wife as trustees, on or about 26 August 2005 his wife retired as a trustee of the investment trust.  He exhibited a copy of a deed executed by the two trustees at that time.  Mrs Moore by the deed purported to consent to the amendment of the trust and delete herself as a trustee as and from the date of the deed, and to appoint her husband “first appointer and first guardian under the trust”.  Mrs Moore retired as trustee of the trust and consented to Mr Moore continuing to act as trustee of the trust.  The clause purported to discharge her from performance of obligations and duties as trustee, and offered her an indemnity from Mr Moore against all debts which had been incurred and unpaid at the date of the deed.  Nothing appears in the deed in relation to the fact that the trustees were registered as lessees, nor does it appear that anything was done to transfer the lessee’s interest as trustee to Mr Moore as sole continuing trustee.  On 3 October 2008 that application came before another judge who ordered that all orders on this file, including the order of 23 October 2006, be amended by deleting “Devanjul Pty Ltd” and substituting “Devanjul Pty Ltd as trustee for the Jadvek Berthelsen Family Trust”.

17. [17]
    The next document on the file has a strange title which is not in accordance with the requirements of the rules. It was an application filed on 3 December 2008 by the defendant seeking an order under r 667 that the orders in file 36/06 (and the other file) be set aside on the ground that they were obtained by fraud and do not reflect the court’s intention at the time they were made, or that they be stayed under r 668 on the ground that facts had arisen and facts had been discovered since the orders were made that would have led to a different result if known in time.  In an affidavit filed in support of the application, Mrs Berthelsen referred to the issue about the identity of the lessees referred to below, alleged that the plaintiffs had concealed breaches of the lease, and had damaged and destroyed the property, complained about a failure of the registrar when assessing costs to refer the matter to a judge as requested under r 982, and made some other very generalised assertions against the plaintiffs and their solicitor.  That application was returnable on 5 December 2008.  In the meantime, the plaintiffs filed an application for an enforcement warrant seeking a warrant in the amended name of the defendant, which issued on 4 March 2009.  However, due to a typing error, the enforcement debtor was identified as “Devanjul Pty Ltd … as trustee for the Moore Investment Trust”, although the correct trust was identified in the name of the defendant in the title.  An amended enforcement warrant which overcame this deficiency was issued the same day.

18. [18]
    The next document on the file, which again does not have the correct title, is a “notice of discontinuance” of a somewhat puzzling nature; it seems to me that it is in substance a notice by Devanjul Pty Ltd discontinuing the application filed 3 December 2008 against Robyn Ann Moore.  It seems to have been filed by solicitors acting for her.  On 19 December 2008 the application filed 3 December 2008 came on for hearing before another judge, who dismissed the application, and ordered that the applicant pay the respondent’s costs to be assessed.  Since the application filed 3 December 2008 identified four different respondents, the interpretation of this part of the order strikes me as somewhat obscure.  He also ordered that an application in file 46/07 be adjourned to a date to be fixed.  Mr Moore filed on 5 August 2009 a notice that he was acting in person.

19. [19]
    On 27 August 2009 there was filed an affidavit by a person purporting to be the solicitor for the plaintiffs (though no notice of appointment of solicitor, or notice of change of solicitors, had been filed) exhibiting what was said to be a true copy of an enforcement warrant for the seizure and sale of property issued by the District Court at Bundaberg on 4 March 2009.  What is exhibited does not match what is on the file:  it purports to be an enforcement warrant against “Vanessa Ruth Berthelsen as trustee of the Jadvek Berthelsen Family Trust” as enforcement debtor.  The second enforcement warrant dated 4 March 2009 on the file was in those terms but the words “Vanessa Ruth Berthelsen” had been crossed out and the name “Devanjul Pty Ltd” inserted in their place.  The affidavit says that the enforcement warrant was lodged for registration on 4 March 2009; a title search on 27 August 2009 reveals that the warrant was registered on 4 March 2009, but in the name of “Stanley Gordon William Moore as trustee”.  Both the warrant exhibited and the warrant on the court file have the enforcement creditor as “Stanley Gordon William Moore and Robyn Gail Moore as trustees …”.

20. [20]
    On 16 October 2009 an application for an enforcement hearing was filed seeking an order that Devanjul Pty Ltd (as trustee) attend and be questioned; it was supported by an affidavit of Mr Moore deposing to the fact that he was one of the enforcement creditors.  What issued, however, on 16 October 2009 was an order that “Vanessa Ruth Berthelsen as trustee of the Jadvek Berthelsen Family Trust” attend and be examined on 19 November 2009.  On 16 November 2009 an application on behalf of the plaintiffs was filed in the District Court at Bundaberg seeking an order that “any property registered in the name of Vanessa Ruth Berthelsen as trustee … is the same legal entity as the defendant”, and an order that a lease which had been registered in favour of Mr Berthelsen be deregistered “and an order be made to be of no legal force of effect”.  That was supported by an affidavit by Mr Moore deposing to the fact that he was one of the plaintiffs “and am duly authorised to swear this affidavit”.  He deposed to the fact that the searches in the Titles Office suggested that the land was transferred to Mrs Berthelsen as trustee of the same trust on 25 February 2009.  He also sought an order that the lease to Mr Berthelsen, lodged on 25 February 2009, of the whole of the land for a period of 10 years “be deemed to be void and of no legal force of effect as it has been entered into to avoid the judgments made by this honourable court.”  There is nothing in the application to indicate whether it was to be served on Mr Berthelsen, who obviously should have been made a respondent given the nature of the relief sought as against him.^[5] A further affidavit by Mr Moore filed 16 November 2009 exhibited a copy of the lease.

21. [21]
    On 12 November 2009 the enforcement hearing summons had come before a registrar, who found that the enforcement hearing summons was issued for the wrong party and by consent discharged the order.

22. [22]
    The application filed 16 November 2009 came before another judge in Bundaberg on 20 November 2009 and was dismissed, at the same time as an application by Devanjul Pty Ltd^[6] for an order restraining the plaintiffs from enforcing the order was dismissed, and another application, apparently by Mr and Mrs Berthelsen personally against Mr Moore, was also dismissed.  That was the end of the matter before the defendant’s application filed 12 May 2010.

Originating application 2189/07 (subsequently Bundaberg D46/07)

23. [23]
    On 2 August 2007 an originating application was filed in the District Court at Brisbane by Mr and Mrs Moore as trustees against Devanjul Pty Ltd.  The applicants sought relief from forfeiture of the lease pursuant to s 124 of the Property Law Act, that the respondent be restrained permanently from relying on matters listed in a purported notice to remedy breach of covenant dated 24 April 2007, recovery of possession of the leased land, that the respondent be permanently restrained from interfering with the applicants’ right to possession and quiet enjoyment of the land, or from entering the land, or from interfering in any way with the business that “the plaintiff” conducted on the land, or from approaching, threatening or occasioning any physical harm to the respondent [sic].  Interim orders were also sought.

24. [24]
    In an affidavit in support of the application, Mr Moore said that the business was acquired “by my ex-wife and I” under a contract, and continued that his ex-wife was “no longer a trustee of the Moore Investment Trust (having resigned approximately 12 months ago) and I remain the sole trustee.”^[7] The affidavit exhibited a copy of the lease, and referred to the previous dispute between the parties and the result of the court proceedings in Bundaberg.  Mr Moore alleged that in November 2006 he had been assaulted by someone, that he was away from the premises in April and May 2007, and was subsequently away from Bundaberg while he was receiving treatment for cancer, and then away from the premises while he was recovering from that treatment, and that on 14 July 2007 he was shown what purported to be a notice to remedy breach of covenant dated 24 April 2007 and a notice to terminate dated 25 May 2007.  He responded to the allegations made in the notices in some detail, and sought relief from forfeiture.  He said there was a degree of urgency because work needed to be done on the premises in order to make them operational in the forthcoming school holidays. He also alleged that locked parts of the leased premises had been broken into and his property had been removed.

25. [25]
    The application was also supported by an affidavit from an employee who had been managing the site for a time in the early part of 2007; she denied any knowledge of an inspection notice dated 10 April 2007 being left on the premises, nor was she aware of Mrs Berthelsen attending the premises in April 2007. She also said she had not seen either the notice to remedy breach of covenant or the notice to terminate. She gave some evidence in relation to factual matters. There was also an affidavit from the plaintiffs’ solicitor of his observation at the premises (on a date not specified) and as to a telephone conversation with Mrs Berthelsen on 1 August 2007. There was also an affidavit of service on the respondent company, and of a copy of certain affidavits and a covering letter being served on Mrs Berthelsen.

26. [26]
    The application came before another judge on 2 August 2007. There was no appearance for the respondent. The application was adjourned to 17 August 2007, and an interim order was made, which included provision for what I assume was to be an inspection of the premises on a particular date. Costs were reserved.

27. [27]
    On 16 August 2007 there was filed a further affidavit by Mr Moore referring to the site inspection on 10 August 2007. He listed a number of things that had been done, presumably by the defendant. He said the water park was unusable in its current state,^[8] and that he did not have funds to remedy the damage. On the same day there was filed an affidavit by Robyn Moore in which she stated that she remained as lessee on the title to the lease, “however, I have no active role in the business … . I have never been served with any documents regarding alleged breaches or termination of the lease. I have not had any contact with the landlord or its representatives regarding the current dispute.”

28. [28]
    The matter came before another judge on 17 August 2007. Mrs Berthelsen appeared for the respondent. She was given leave to file an affidavit but that judge subsequently ordered that the affidavit which she filed be placed in a sealed envelope not to be opened save by order of a judge. It is still on the file in that state. I have not opened it. Apart from that, his Honour made a temporary order restraining the respondent from removing, disposing of, or in any way dealing with goods or chattels in or removed from the leased land, dealing with the land or any improvements thereon or disposing of the land or taking any further action consequent on the purported notice to remedy breach of covenant and notice to terminate. The application was transferred to the Bundaberg registry, and was listed for a speedy trial in the October sittings of the court. The applicants were to file and serve an amended application on or before 23 August, and further directions in relation to the matter were given. In addition, a mediation order was made. The costs were again reserved.

29. [29]
    On 30 August 2007 an amended originating application was filed in the District Court at Bundaberg, in the same proceeding which following the transfer was given Bundaberg file no. 46/07. The applicants now sought a declaration that the respondent’s re‑entry on the leased land was void, recovery of possession of the leased land, relief from forfeiture of the lease, and restraining orders in relation to the matters referred to in the notice to remedy breach of covenant, and orders restraining the respondent from entering the land, interfering with the applicant’s right to possession and quiet enjoyment of the land, and other relief sought in the application as originally filed.

30. [30]
    By an affidavit filed on 6 September 2007 Mr Berthelsen said that he was a director of the defendant “as trustee for the Jadvek Berthelsen Family Trust” and the lessor of the premises pertaining to the matter. He referred to the history of the dispute between the parties and as to what had happened in relation to various notices, and alleged that it was Mr Moore who had been threatening members of his family, and alleged various deficiencies in the leased premises.

31. [31]
    With the file, but not stamped as filed although it does have the seal of the court on the bottom left-hand corner, is an affidavit by Mrs Berthelsen affirmed 6 September 2007. This was the substantial affidavit for the respondent at the hearing, if it was used at the hearing; the reasons for the reserved judgment do not make clear whether or not this particular affidavit was read, but presumably it was. The affidavit referred to the fact that she was managing director of the defendant “as trustee for the Jadvek Berthelsen Family Trust”, and said that at the time they purchased the freehold the lessee was Mr and Mrs Moore as trustees for the Moore Investment Trust. She continued in paragraph 4:

“I recently became aware that the applicant is a non-existent entity which has no valid lease with the respondent, and the application was made by them with full knowledge of such, thus falsely pretending to the court and to the respondent.”

32. [32]
    The affidavit went on to allege a large number of deficiencies and things that the applicants had done wrong, including providing false and misleading information to the courts, and alleged various breaches of legislative restrictions and obligations, extending to tax evasion. It alleged that there had been lies in affidavits and unserved evidence. The affidavit stated (as argument) that the effect of the “retirement” of Mrs Moore as trustee was to negate the lease automatically, because they had never entered into a lease to Mr Moore as trustee for the investment trust:  paragraphs 13, 14. She alleged that an inspection notice was placed on the premises on 10 April 2007, and that she saw Mr Moore arrive that day. On 24 April 2007 she inspected the premises and was unhappy with what she found and as a result completed a notice to remedy breach of covenant which was put in the waterslide mailbox, with a copy being left on the doorstep of Mr Moore’s unit, on 24 April 2007. Nothing was done to remedy the deficiencies so on 25 May 2007 she prepared a notice to terminate and pasted it in a prominent position on the premises and gave a neighbour of Mr Moore a copy to pass on to Mr Moore.

33. [33]
    She referred to what happened subsequently including a confrontation on 8 July 2007, and problems subsequently caused by water leaking from the leased area onto the part of the land where the defendant operated a go‑kart track. The affidavit alleged that Mr Moore had been deliberately damaging and destroying the property, with a view to alleging that the defendant had done that and claiming damages for it. She said that on 1 August 2007 she was served with court documents to appear in Brisbane the following day, which was impossible, and that the documents which were served on her were different from the documents that had been used in the court. She alleged that rent was unpaid in an amount, as at the end of August 2007, of over $4,000; she also alleged that the premises could not now be operated because various permits required from the local authority had expired. Various other complaints were made about Mr Moore and the way in which the premises were operating or not operating. There was also a response to the factual allegations made by him in relation to various breaches which had been alleged. There were various other matters referred to in the affidavit, but these are I think the matters of major relevance.

34. [34]
    An affidavit by Mr Moore was filed 21 September 2007, which responded in some detail to what was alleged in the affidavits of Mr and Mrs Berthelsen. He also alleged that various documents exhibited to the affidavit of Mrs Berthelsen had been removed from the premises or his home without his consent. He exhibited some photographs of the premises said to have been taken in February 2007 or on the inspection of 10 August 2007. The photographs dated February 2007 generally show a business which is attractive and presentable, while those dated August 2007 show what is essentially a mess. A further affidavit from the plaintiffs’ employee was filed 21 September 2007 responding to Mrs Berthelsen’s affidavit, and a further affidavit of Mr Moore filed 26 September 2007 exhibiting an improvement notice from the Queensland Department of Industrial Relations dated 3 January 2007.

35. [35]
    The application was heard by another judge at Bundaberg on 16 and 17 October 2007; counsel appeared for the applicants while Mr and Mrs Berthelsen appeared for the respondent. That judge prepared a written judgment which was signed and sent to the registrar at Bundaberg on 2 November 2007, with a direction that it be delivered in accordance with UCPR rr 663 and 664. Apparently that direction was not complied with, but the parties were simply sent copies of the reasons. On 5 February 2008 when the judge was in Bundaberg and had become aware of what had happened, he formally made the orders in court and published the written reasons. It follows that the true date of his Honour’s order is 5 February 2008.

36. [36]
    His Honour declared that the respondent’s re-entry to the lease was void; relieved the applicants from forfeiture of the lease pursuant to s 124; ordered the respondent to vacate the land and deliver up all keys to the premises and do all things which may be necessary to enable the applicants to re-enter the premises; except as provided for by the lease, restrained the respondent from entering the leased land, interfering in any way with the business of the applicants conducted on the land, and interfering with the applicants’ right to possession and quiet enjoyment of the land. The respondent was ordered to pay the applicants’ costs of and incidental to the proceedings.^[9]

37. [37]
    Paragraph 3 of his reasons sets out the details of what had happened in relation to the trust; Mr and Mrs Moore had been divorced, Mrs Moore had resigned as a trustee, but she was still one of the lessees. His Honour was obviously well aware that she took no active part in the business. His Honour referred to, but generally does not appear to have resolved, the conflict in evidence between the two sides, which was substantial. His Honour noted that a large number of photographs had been put in evidence, and his impression overall was that most of what appeared in the photographs would be typically attended to by maintenance from time to time:  [18]. He also said that some of the matters relied on in the notice as breaches of covenant were insufficient to identify the covenant alleged to have been broken and the manner in which it had been broken, and that some matters relied on as breaches of covenant were not in fact breaches.

38. [38]
    His Honour addressed the question of whether the obligations on the lessee in relation to insurance had been met, and said that it was not clear that insurance as required by the lease existed, although he did not find expressly that the applicants were in breach of the lease in this respect:  [25]. He held that the notice to remedy under s 124 was not served on Mr Moore. He accepted that leaving the notice in the kitchen of the waterslide and under the screen door of his premises did not result in the notice coming to the attention of Mr Moore or his other witnesses, and that Mr and Mrs Berthelsen were aware at the time the notice under s 124 was given that Mr Moore was overseas or in Brisbane for cancer treatment, so that the requirements of s 257 had not been satisfied in relation to service. To this extent at least a conflict of testimony was resolved in favour of the applicants.

39. [39]
    Otherwise, however, his Honour does not seem to have resolved any of the conflicts of evidence, because the matter was decided on the basis that the notice to remedy breach of covenant was defective in that it did not comply with the requirements of s 124,^[10] and that both this notice and the notice of inspection were defective in that they had not been served on both lessees, so they could not be relied upon.^[11] For those reasons, he made the orders referred to earlier.

40. [40]
    Did the court have jurisdiction to deal with this application? In circumstances where no proceedings had been instituted in the District Court to recover possession of the leased land, and where there was no evidence that the defendant had threatened any such proceeding, the requirements of s 70 of the District Court Act had not been satisfied. It follows that there was no jurisdiction under that section to give relief under s 124 of the Property Law Act. Most of the other relief sought by way of final relief in paragraph 2 of the originating application does not come within s 68 of the District Court Act. Paragraph 2(c), however, sought in substance the recovery of possession of the leased land, and in the light of the evidence as to the value of the business acquired by the defendants it was reasonable to conclude that the value of the lease of the land (which is not the value of the freehold land) was within the monetary limit, that is, not above $250,000. Accordingly, paragraph 2(c) sought relief which fell within s 68(1)(b)(xi) of the District Court Act. In addition, relief was sought in paragraph 2(e) restraining the respondent from entering onto the land. That falls within s 68(1)(e)(xii), which covers a proceeding to restrain an actual threatened or apprehended trespass to land again where the value of the land does not exceed the monetary limit. These two aspects of the relief sought did fall within s 68, and it follows that the District Court had jurisdiction to entertain the application to that extent.

41. [41]
    In these circumstances, the District Court also had jurisdiction under s 69 of the District Court Act to grant such relief or remedy as the Supreme Court might have granted for the purposes of exercising the jurisdiction conferred by s 68. In order to obtain possession of the land it was necessary for the plaintiffs to show that the lease had not been validly terminated, or to obtain relief from forfeiture, so that a determination of those issues was therefore within the jurisdiction of the court under s 69. By a similar process of reasoning, the other orders made in paragraph 4 of the judgment on 5 February 2008 can be seen to be within the jurisdiction of the District Court pursuant to s 69 of the Act. At the time when the application was argued, I had some concern as to whether the District Court had jurisdiction in relation to this application, and indeed in relation to the previous action; I have already dealt with the question of the jurisdiction in relation to the previous action, and having considered the matter carefully I am satisfied that on this basis there was jurisdiction in this way in respect of this proceeding.

42. [42]
    An application for assessment of a costs statement was filed on 7 March 2008. The defendant filed a notice of objection on 23 April 2008 objecting to all of the costs sought on the ground that the proceedings were commenced and pursued by deceit, false pretences and fraud and the judgment was obtained by fraud. There was also a detailed response in relation to a number of the items in the costs statement. This included an allegation that the proceedings had been commenced with Mrs Moore as an applicant without her knowledge or consent. On 2 April 2008 the acting registrar appointed an approved costs assessor to assess the costs. By a certificate filed 3 July 2008 that costs assessor assessed the costs at $33,162.03. Pursuant to that certificate on 23 July 2008 the registrar in Bundaberg ordered the defendant to pay the plaintiff [sic] costs in that amount.

43. [43]
    On 4 August 2008 an application was filed seeking an order that the respondent’s identity be amended to “Devanjul Pty Ltd as trustee for Jadvek Berthelsen Family Trust”. This was supported by an affidavit of Mr Moore which was filed on 4 August 2008 and was in similar terms to the affidavit in support of the similar application in file 36/06. The applications came on before a judge in Bundaberg on 3 October 2008; that judge made an order in terms of the draft. There is on file no. 46/07 the original draft order initialled by his Honour which refers to file no. 36/06, and the original order as drawn up by the registrar and filed on 3 October 2008, also referring to file 36/06.^[12] There is no reference to file 46/07. I have not seen an order of that date referring to file 46/07 on either files, and it seems that the order in relation to file 36/06 was the only order that his Honour made that day.

44. [44]
    On 3 December 2008 Devanjul Pty Ltd made the application referred to already in relation to file 36/06. The original application and affidavit in support are on file 46/07, and both file numbers are present on the documents.^[13] On 19 December 2008 the judge gave the defendant leave to file an amended application; that was filed that day. The application was dismissed by the judge on 19 December 2008.

45. [45]
    On 15 December 2008 another application was filed seeking to amend the respondent to “Devanjul Pty Ltd as trustee for Jadvek Berthelsen Family Trust”. That application was filed in Brisbane, and was returnable the day before the defendant’s application was dealt with, but I cannot find on the file any reference to what happened on 18 December 2008.^[14] The application was supported by an affidavit indicating that an application to this effect was inadvertently not dealt with on 3 October 2008 in Bundaberg.

46. [46]
    It appears that there as a further application by Devanjul Pty Ltd filed in OA2189/07 which came before another judge on 13 January 2009, when the matter was adjourned to the civil list and costs were reserved. I cannot identify that application; a submission on behalf of Mrs Moore filed 13 January 2009 has an inappropriate title and refers to an application filed 3 December 2008, which I thought was the application dismissed on 19 December 2008. Something was mentioned at a callover before the Chief Judge on 17 February 2009 when whatever it was was set down for hearing on 16 April 2009. This seems to have been an application by Devanjul Pty Ltd against Robyn Gail Moore; in any event, there was a notice of discontinuance filed on 20 April 2009 which has a note on it to the effect that on 3 April 2009 the hearing on 16 April 2009 was delisted.

47. [47]
    On 16 November 2009 an application was filed purportedly on behalf of the “plaintiff” in Bundaberg file 46/07, seeking an order that “any property registered in the name of Vanessa Ruth Berthelsen as trustee under a particular instrument … is the same legal entity as the defendant” and that a particular lease to Mr Berthelsen be deregistered and to be made of no force or effect. In support of this application two affidavits were filed 16 November 2009, similar to the affidavits filed in 36/06 on that date. On 20 November 2009 Mr and Mrs Berthelsen applied for an order that steps against them in their personal capacities as trustees be stayed permanently, and that Mr Moore be restrained permanently from commencing any proceedings against them in their personal capacity as trustee in relation to any matter involving Devanjul Pty Ltd. Both applications came on 20 November 2009 before the judge who conducted the trial in October 2007. His Honour referred to the fact that the judgment was given against Devanjul Pty Ltd, and “as the name has been amended, as trustee of the Jadvek Berthelsen Family Trust”. I must say that I have not found any reference to any order being made in file 46/07 to that effect, though it may be that an order has been made at some stage to which I have not found a reference. In any event, his Honour went on to say that “the plaintiff in that proceeding is entitled to proceed to execution in any way he may and it is not appropriate for this court to make any sort of restraining order.”  The application by Mr and Mrs Berthelsen was dismissed, but the application filed 16 November 2009 by Mr Moore was also dismissed.

The application before me—the principal argument

48. [48]
    The defendant filed in support of the application an affidavit by Mrs Berthelsen which exhibits what is in substance a submission, although from the way in which it has been verified and incorporates a number of evidentiary documents can be seen as combining the functions of submissions in writing and evidence in support. A number of matters were relied on in the course of this submission, some of which are expressed in tendentious and inflammatory language.

49. [49]
    One difficulty facing the defendant is that much of these submissions is based on a misconception as to the legal position. It is fundamental to them that on the retirement of Mrs Moore as a trustee of the Moore Investment Trust the “entity” which was the lessee ceased to exist, so that the lease became defunct and non‑existent. There are two problems with this argument. The first is that, as is apparent from the affidavit material referred to earlier in relation to the second proceeding, this point was before the judge who heard that application, so that it is not a new point or a point which was discovered only after that application had been determined. The only thing that is new is that there is information in the costs statement which throws some light on when the lawyer acting for the plaintiffs in the matter was aware of the situation, but that does not alter the fact that the respondent’s argument that the lease had come to an end as a result of that retirement and the consequent non-existence of the “entity” was advanced before that judge and rejected.

50. [50]
    The other and more fundamental difficulty with the argument is that it is clearly wrong in law. It appears to assume that a trust is a legal entity recognised as having legal personality, that is to say, as being in law a person or the equivalent of a person. A company upon incorporation achieves a legal identity distinct from the individuals who are the owners of the shares in the company (if it is a company limited by shares) or the individuals who otherwise constitute the corporation.^[15] There is no equivalent doctrine in relation to a trust.^[16] A trust is simply a bundle of rights and obligations which exist in relation to particular property held by particular people, called trustees.^[17] Where one is dealing with any property held on trust, one deals with the trustee or trustees, who may be a company or companies or one or more natural persons. If litigation arises in relation to these matters, the litigation is carried on by or against the trustees, not the trust as such, because the law does not recognise a trust as something that can sue or be sued.

51. [51]
    The relevant relationship here was one of landlord and tenant. It is apparent from an examination of the Titles Office records that at the time when the defendant company acquired the freehold there was a registered lease where the lessees were Mr and Mrs Moore as trustees for a particular trust. The system of title to land under the Land Titles Act is a system of title by registration, rather than a system of registration of title:  what matters is what is on the register, and at all material times until the registration of the lease was removed, initially by the defendant and subsequently after the second order as a result of the tenant abandoning the lease, the lessees were Mr and Mrs Moore.

52. [52]
    The fact that Mrs Moore had executed a document by which she purported to retire as trustee does not matter. Under the Trusts Act, a trustee may retire without any order of the Supreme Court, so long as there are at least two trustees, or one trustee who is a corporation, left;^[18] that does not seem to have been the position here, so there must be some doubt as to the validity of that document anyway.^[19] But even assuming that it was valid and had the effect that Mrs Moore was no longer a trustee, she remained a lessee,^[20] and having become a lessee in her capacity as a trustee she continued to hold her interest in the lease on the same trust until she had performed and discharged that trust, that is, for practical purposes, until the interest she held in the premises as lessee was transferred to someone else or came to an end. The former never happened. Whether or not the deed that was executed under which she purported to retire as a trustee was of some effect in terms of the structure of the trust, it had no effect whatever on her position as lessee, and the situation remained that Mr and Mrs Moore were the lessees, and they held their interest as lessees on those particular trusts.

53. [53]
    That would be the case even if the trust itself ceased to exist. It was said by Mrs Berthelsen that on or about 14 July 2006 Mr Moore transferred the former trust’s ABN to a different trust and did various other things which had the effect of bringing the trust to an end. Whether or not that occurred, and what effect it had in terms of the validity and operation of the Moore Investment Trust, are irrelevant; so long as the register in the Titles Office showed both Mr and Mrs Moore as lessees as trustees then they remained in law lessees under a lease which continued, and the interest they held as lessees was subject to the obligations imposed in respect of that trust. Trustees cannot free themselves from their obligations in respect of trusts of property as readily as Mrs Berthelsen’s argument assumes.

54. [54]
    It follows that, insofar as the defendant’s argument is based on the proposition that the Moore Investment Trust ceased to exist when the deed of Mrs Moore’s retirement as a trustee was executed, or when Mr Moore subsequently did the various things relied on by her, and that that had some effect on the validity of the lease or the identity of the lessees, then those arguments are wrong in law. It follows that all of the consequences that she alleges flowed from that state of affairs, such as the allegations of knowingly making of false statements by Mr Moore and by the solicitor handling the matter for him, are also all incorrect. Mr and Mrs Moore were the lessees at the time when each of the proceedings was commenced, and were the people who were entitled to apply for relief under s 124. Indeed, they were the people who had to take any action in relation to protecting their interest as lessees under the lease.^[21] Mrs Moore was therefore a necessary party, and an appropriate plaintiff or applicant in each proceeding.^[22]

—authority to commence proceeding

55. [55]
    There is, however, a related issue which is relied upon by Mrs Berthelsen; that Mrs Moore at no time gave instructions or authorised the solicitor to issue proceedings in her name. There is no affidavit evidence to that effect from Mrs Moore, but included in the material put forward by Mrs Berthelsen is a certified copy of a statutory declaration apparently made by Mrs Moore on 2 April 2009 before a Justice of the Peace which among other things stated that at no time was she asked or informed by Mr Moore or his legal representatives about any proceedings brought against Devanjul Pty Ltd before those proceedings were commenced. The declaration also says that she was informed by the solicitor handling the matter for Mr Moore that she was not involved, that he would handle the matter, and that she was not a party to the action. She did not instruct him to commence proceedings against Devanjul Pty Ltd and her only involvement was that she was subpoenaed to appear as a witness at the hearing. On the face of it, that statutory declaration amounts to evidence that the solicitor who commenced both proceedings on behalf of both Mr and Mrs Moore did not have the authority of Mrs Moore to commence either proceeding on her behalf as a plaintiff.^[23]

56. [56]
    It is I think clear that Mrs Moore was a necessary plaintiff. She was a lessee at all material times, and insofar as any interest in the land as lessee was to be defended or vindicated, that was to be done by both lessees; both lessees were necessary parties. That applied also to the application for relief under s 124 of the Property Law Act. The fact that she was a necessary party, however, does not mean that a solicitor was authorised to issue proceedings in her name without her authority. It simply means that, if she were not prepared to authorise proceedings to be issued in her name, the appropriate course was for Mr Moore to issue the proceedings with himself as sole plaintiff or applicant, and to join Mrs Moore as a defendant or respondent.^[24] That, however, was not done in this matter. On the face of it, it looks like what happened was that the solicitor commenced proceedings in the name of both Mr and Mrs Moore but acting only on the instructions of Mr Moore.

57. [57]
    The fact that Mr Moore was one of the trustees, or for that matter one of the lessees, did not in itself authorise him to give instructions for proceedings to be commenced in the name of the other trustee or lessee. The general rule in relation to trustees is that they must act unanimously.^[25] Whether or not Mrs Moore had validly retired as a trustee, so long as she remained a lessee she held her interest as lessee on the same trust, so that the position continued in respect of her trust obligations in respect of her interest as lessee. What should have been done, of course, is that the interest of Mr and Mrs Moore as lessees should have been transferred to Mr Moore as lessee, but that was not done. Because that step was not taken, Mrs Moore remained a lessee. She remained a necessary party but it was necessary for her to give the instructions herself.

58. [58]
    The point that the proceedings were commenced by the solicitor without the authority of the plaintiff is a point which can be taken at any stage of the proceedings, even after final judgment.^[26] In matters where there is only one party, the appropriate course is to dismiss the proceeding, and order the solicitor to pay the costs personally.^[27] It may be that there is an exception to that if the person under whose name the proceeding has been commenced is prepared to ratify what has been done by the solicitor, in which case the action of the solicitor in commencing the proceeding without authority will be ratified, so the objection will be overcome, and in an appropriate case a matter may be adjourned to give the party the opportunity to ratify.^[28]

59. [59]
    The position may be different where a necessary party was joined as a plaintiff without that party’s authority, in circumstances where the solicitor had the authority of the other party to commence a proceeding, and could have commenced a proceeding by the authorising party alone, joining the other party as a defendant or respondent.^[29] I am prepared to hear argument in relation to what should be done in the present matter, and apart from that I have not heard submissions on behalf of the solicitor, who may well be able to show that in fact he had the authority of Mrs Moore. In the circumstances, I consider that the appropriate course is to adjourn the application for a further hearing date, and give notice to both Mr Moore and to the solicitor who commenced each of the proceedings of the preliminary views set out in these reasons, to give the solicitor the opportunity to be heard in relation to the matter, and to give Mr Moore a further opportunity to be heard.^[30]

—other matters raised

60. [60]
    Apart from the matters to which I have already referred, or which are consequential on those matters, there are a large number of other complaints raised in the material by Mrs Berthelsen. She complains that the proceedings were supported by false affidavits made by Mr Moore, on the basis that his statements in various affidavits to which I have referred that he was authorised by Mrs Moore to make the affidavits were false. If as appears in fact he was not authorised to make the affidavit on her behalf, that was a false statement, but I cannot see that those statements in any way affected the final outcome of either proceeding. The matter in 2007 turned on the fact that notices had not been served on Mrs Moore, and there was an affidavit by Mrs Moore to that effect. It does not appear anywhere that the defendant asserts that any notices were in fact served on Mrs Moore. The outcome of the proceedings in 2007 therefore turned on undisputed facts.

61. [61]
    In relation to the earlier proceedings in 2006, the reasons for the orders that were made were not in the material, but I have obtained from the judge the transcript of his reasons. These depended on the terms of the notice to remedy breach of covenant in Form 7, which was held to be inadequate and ineffective, because of a failure to particularise properly the breaches and what had to be done in order to rectify them. In respect of one matter, the breach of using the premises as residence by Mr Moore, the matter had been rectified. In relation to some palm trees, the notice did not identify what had to be done in order to remedy the breach. There was also a problem with the timing of the notice to terminate, which was given one day too early. Essentially, on that occasion the matter was resolved on the basis of deficiencies in the notice in Form 7, and by granting relief from forfeiture, without determining any of the disputed issues of fact. The judge on that occasion proceeded on the basis that the parties should attempt to resolve their differences, and if that proved impossible, a fresh notice to remedy in Form 7 could be given.

62. [62]
    In any case, the allegations in the various affidavits that they were made on behalf of Mrs Moore were in my opinion surplusage. The function of an affidavit is to depose to matters of fact, and where a witness is deposing to matters within the knowledge of that witness, the witness is not giving evidence on behalf of anyone else. In some circumstances, a statement in an affidavit may be made on behalf of someone other than the deponent, for example, if an affidavit in an interlocutory proceeding offers an undertaking as to damages. But that was not the case here. The statement may well have served to conceal the fact that the proceedings were not commenced with the knowledge and consent of Mrs Moore, but otherwise it does not seem to me that, if these propositions were in fact false, that in itself is of any consequence in terms of the outcome of either proceeding. In those circumstances, they do not provide a basis for setting aside either order.

63. [63]
    Mrs Berthelsen also alleged that in various respects the lessees were in breach of the lease. Again, this did not matter in terms of the basis upon which each of the proceedings was decided. For example, reference was made to the insurance required not having been taken out, and it did appear that the judge who heard the matter in 2007 was inclined to agree with that proposition, though there was not an express finding that there was a breach of the lease on that basis. Nevertheless, the proceeding succeeded for other reasons, reasons which really had nothing to do with the question of whether there were in fact any breaches of the lease by the lessees. In those circumstances, it is unhelpful for the defendant to seek to show now that there really were breaches of the lease, or for that matter that things that were said by Mr Moore or other witnesses on that subject were in fact not true.

64. [64]
    To set aside an order made on the ground of fraud, it is necessary to show not only that there was some fraudulent conduct by the party who obtained the order, but that the fraud was in relation to a material matter, that is, that the fraud was in relation to a matter where, if the true facts had been known at the time, it is reasonably probable that the outcome would have been different.^[31] In my opinion, given the basis upon which both matters were determined, even if what was contained in the affidavits in this way was fraudulent, it was not material and therefore is of no consequence in relation in terms of the applications now being made. The same applies to setting aside under r 668; it is necessary to show that the additional facts discovered would have made a difference,^[32] and that is not the case here.

65. [65]
    Mrs Berthelsen also complained about various steps which have been taken in an attempt to execute the orders for costs which were made in the two proceedings. Initially a warrant to seize and sell property was obtained, but in an attempt to register the warrant against the land owned by the company was unsuccessful because that land was held by the defendant as trustee. The land has now been transferred to Mrs Berthelsen as a new trustee of the same trust. Attempts have been made to obtain execution against the land, and at one stage an enforcement summons was issued against Mrs Berthelsen as the new trustee, but that was subsequently discharged. She complained about a warrant being executed being issued against “an unrelated party when the unrelated party was not named as defendant on the order for costs … and the unrelated party has never had any such order against it … .”

66. [66]
    The position about enforcing an order for costs against a trustee is a little complicated, but ultimately the basic principles are clear enough. The starting point is that a trustee is personally liable for all liabilities incurred as trustee, so far as the other party is concerned, and the liability is not confined to the trust assets as such.^[33] A trustee who incurs such liability properly while acting as trustee is, however, to be indemnified out of the trust assets, a right recognised in Queensland by the Trusts Act 1973 s 72; by s 65 this right cannot be excluded by a provision of the trust instrument.^[34] Apart from that, the trustee also has a right to personal indemnity from a beneficiary, at least in certain circumstances.^[35] The right of indemnity may be more difficult to enforce against a beneficiary personally than against the trustee property, but in some circumstances the former right can be enforced, for example where the trust property has been distributed to the beneficiaries.^[36] The mere fact that the trust assets have been transferred to a different trustee, or even transferred away more completely than that, would not defeat the trustee’s right to indemnity so long as the assets could be traced in equity, that is identified as being still the same assets, or the product of the same assets.^[37]

67. [67]
    Although the right of indemnity from the trust assets, or from the beneficiaries, is a right of the trustee, there is no doubt that a creditor of the trustee is entitled in ordinary circumstances to be subrogated to the trustee’s indemnity in order to enforce payment of a claim by the creditor to which the indemnity relates.^[38] Ordinarily the trustee should still be involved as a party to ensure that the trustee was bound by the determination, but at least in some circumstances the creditor is able to enforce the right of subrogation directly, either against the trust property or against the beneficiary personally.^[39] At the very least, the plaintiffs or applicants having the benefit of the cost order could wind up the company, and the liquidators of the company could then pursue the right of indemnity against the current holder of the trust property, or any beneficiary. In principle, therefore, the costs orders can be executed against the land as trust property even though it is in the hands of a new trustee, although the appropriate steps must be taken. What matters is whether the plaintiffs or applicants have been subrogated to the defendant trustee’s right of indemnity from that trust property. It may be that there needs to be some further proceeding taken to enforce that, but the mere fact that the order is made against Devanjul Pty Ltd as trustee rather than the current trustee of the same trust is, in theory at least, a matter of little or no consequence.

68. [68]
    It may be that the attempts to enforce the costs orders so far have met with some procedural difficulties, but that I suspect has more to do with some deficiencies in the way they have been pursued, rather than any deficiency in principle such as that on which Mrs Berthelsen seeks to rely. She cannot therefore complain that the attempts by the plaintiffs or applicants to enforce their costs orders have extended to proceedings against her as the current trustee of the property formerly held on the same trust by Devanjul Pty Ltd, even if there have been some procedural deficiencies in the way in which those attempts have been conducted up until now. This aspect of her complaint is therefore misconceived and unjustified.

69. [69]
    She also complained that the enforcement warrants were issued without notice to her. It is commonplace that enforcement warrants are issued without notice to the enforcement debtor. There are policy reasons why that should be the case: giving the enforcement debtor notice prior to execution of an enforcement warrant would enable the enforcement debtor to take steps to conceal property which would otherwise be available for execution. This does sometimes have the consequence that the party against whom the judgment is obtained knows nothing about execution until a bailiff turns up to take possession of the property. However, it does not follow that there has been any improper application of court process.

70. [70]
    There have been various errors in documents which have been produced from time to time; for example, the original statement of claim in D36/06 had as defendant “Derek Burnett Berthelsen and Vanessa Ruth Berthelsen T/AS Devanjul Pty Ltd”. That was wrong in two respects. First, it did not match the name on the claim, and second, a proceeding can be brought against one or more natural persons or against a company, but it is not appropriate to bring a proceeding against natural persons “trading as” a company. Such an approach does not reflect the fact that an incorporated company has legal personality and can be sued in its own name. There is no reason to think, however, that this was other than a mistaken in the preparation of the documents. I certainly would not attribute any sinister significance to this.

71. [71]
    Mrs Berthelsen has also submitted that there was, for the purposes of the lease, a subletting assignment transferor parting with possession of the premises because Mrs Moore had retired as a trustee, so that the trust business on the leased land was presumably being carried on only by Mr Moore. But Mr and Mrs Moore were both lessees, and that does not amount to an assignment subletting a transfer or a parting with possession. There was nothing to indicate that Mr Moore ever sought to exclude Mrs Moore from the premises. The fact that only one of two lessees in fact exercises the lessee’s right to possession of particular leased premises does not activate such a clause. There is therefore no argument available to the defendant that the lessees were in breach of an essential term of the lease in this respect.

72. [72]
    There is an argument that, if there was a breach by the tenant of a term which by the lease was made an essential term of the lease, a lessor is entitled to terminate the lease and re-enter without first complying with the requirements of s 124 of the Property Law Act. This argument depends on the application of a general statement in a recent decision of the High Court^[40] applying general principles of contract law to leases, but without considering expressly the effect of a legislative provision such as s 124 of the Property Law Act, and has some support from a decision in Victoria,^[41] although there is a recent decision in the New South Wales Court of Appeal^[42] which casts some doubt on this proposition, and the ability in this way to avoid the application of a provision such as s 124.

73. [73]
    It would have been open to the defendant to have advanced an argument on this basis before the hearing in October 2007. The fundamental factual matter, that Mrs Moore had retired as a trustee and was no longer involved with the business, was a matter which was known to the defendant at that stage. It is referred to in Mrs Berthelsen’s affidavit, and there was before the court an affidavit by Mrs Moore to the effect that she was not involved with the business. The terms of the lease were obviously known to, or at least available to, the defendant at that time. Accordingly, there is no new factual matter which has been discovered since the hearing which could be the basis of an order under r 668; that rule is not available merely because later decisions of, for example, the High Court, suggest that the earlier decision was wrong in law, even assuming in the defendant’s favour that that is so in the present case.

74. [74]
    In these circumstances it is not now open to the defendant to seek to set aside the decision in 2007 on the basis of this argument, which is an argument which could have been advanced before the judge who heard that matter in 2007, but was not. Rule 668 does not permit a further argument to be advanced after the judgment which was not advanced at the time, whether because of a party’s lack of familiarity with the relevant law, or for any other reason other than the particular matters referred to in that rule.

75. [75]
    Mrs Berthelsen also raised what she submitted was some inconsistency between the amount of $60,000, which Mr Moore had said in affidavits was the amount that was paid for the business in connection with which the lease was assigned to Mr and Mrs Moore, and the fact that the transfer of the lease was stamped in the amount of $30,000, and the balance sheet of the Moore Investment Trust as at 30 June 2006 showed a figure of $30,000 for “goodwill” as an intangible asset. The only thing shown in the material is an extract from the balance sheet, and it is not clear whether the explanation for this apparent inconsistency is that $30,000 was paid for the assignment of the lease and $30,000 was paid for goodwill, or simply, that $30,000 was paid for something which was not subject to stamp duty. An alternative possible explanation is simply that the value of the business was understated for the purpose of minimising stamp duty.

76. [76]
    This material in itself does not demonstrate that Mr Moore’s statements as to what was paid for the business was fraudulent. Even if it did, however, that would not be grounds for setting aside either order. As I have said earlier, it is not enough to show that there was some fraud in connection with the proceedings, it is necessary to show that the fraud was material, that is, it was fraud which affected the outcome of the proceedings.^[43] The only significance of the amount paid for the business was as showing that the value of the lease was not greater than $250,000, so that the District Court had jurisdiction, and to show that the business was of some value, so as to show that it was something worth preserving and therefore justifying the exercise of the discretion to give relief from forfeiture under s 124.

77. [77]
    Given that ultimately it seems to me that each of the matters turned on the fact that there had not been a proper notice under s 124 given by the defendant, arguably the question of relief against forfeiture never arose, because there was no valid basis for a forfeiture from which relief could be granted. But in any case, there is no reason to think that it would have made the slightest difference to either of the orders that were made if the judge making the order had been aware that the amount paid for the business was in fact $30,000 rather than $60,000, assuming that that was the case. It follows therefore that, even if this statement was fraudulent (and I do not find that that was the case on the evidence that I have seen), it was not fraudulent in some material respect and therefore provides no basis for setting aside either order.

78. [78]
    There was a similar argument advanced on the basis of statements made in Mr Moore’s affidavits in relation to the  business being profitable, which was said to be inconsistent with statements in the 2006 tax return for the Moore Investment Trust. For reasons analogous to the reasons that I have just given, even if these statements were fraudulent, and I am by no means persuaded that that has been shown, they were not fraudulent in any material respect, so that provides no basis for setting aside either order.

79. [79]
    Mrs Berthelsen was also critical of a disparity between the material which was served on her in relation to the second originating application and the material that was filed and read in court, on the basis that the material served on her had Mr Moore as the only applicant, whereas the material filed in the court had Mr and Mrs Moore as applicants, she was served with an affidavit of the solicitor dated 31 July 2007 whereas the affidavit read was dated 1 August 2007, and an affidavit of Mr Moore sworn 2 August 2007 was read but had not been served. She also complained about inadequate notice. Certainly she was not given notice specified in the UCPR for an application, and very little, and not proper, notice at all of the application, but the judge before whom the application initially came on was obviously well aware of that, and only made a limited temporary order, essentially designed to preserve the status quo, adjourning the matter for about two weeks to enable the defendant to be properly served and have the opportunity to respond properly to the application.^[44]

80. [80]
    The affidavit of the solicitor which was read by leave on 2 August says in paragraph 4 “I caused to be served the originating application and supporting affidavits on the registered office of the respondent and Mrs Berthelsen, a director, today.”  That affidavit was sworn on 1 August 2007, and obviously did not assert that a copy of that affidavit had been served. It would also have been apparent that what was served were not copies of filed documents, because leave was given to read and file the documents for that judge on 2 August. The fact that the affidavit of Mr Moore was not served was apparent from the affidavit of Mr Highland, the commercial agent, which was also read by leave on 2 August, which referred only to three affidavits not including one of Mr Moore.

81. [81]
    That judge may have been curious about the terms of the affidavit of the solicitor which was served, but in circumstances where it was not suggested that the major affidavit on which the application relied had been served, and where it was obvious that there had not been the notice required under the rules, I consider that there is no reason to think that that judge was misled in any material respect by the documents put before the court. In any case, this is a matter which could have been raised on 17 August, when the matter came before another judge, or if it came to that, when the matter came on for hearing later in 2007. Again, there is nothing in this material which indicates that anything new arose after judgment was given in February 2008. There is therefore nothing arising from these circumstances which would justify setting aside that judgment and order.

82. [82]
    There is a complaint that after the conclusion of the hearing in October 2007 some further written submissions were sent by counsel to the judge but copy was not provided to the defendant. The applicants’ position appears to be that a copy was faxed to the respondent on 19 October 2007 at the same time as the material was provided to the judge. That would have been appropriate. Mrs Berthelsen maintains that no such copy was ever received by her. It is of course possible that a document was apparently sent by fax, but was not in fact received by the respondent. One of the difficulties with communication by fax is that the fact that a document has been sent does not necessarily prove that it has been received. Mrs Berthelsen suggests that the document was deliberately not sent to her, and that this amounted to fraud on the part of the applicants’ representatives. I would not be prepared to draw that inference just on the basis of this material. In any case, she did ultimately see the further submissions, and complained only of the fact that they reinforced a submission which had already been made, namely that it was necessary for Mrs Moore to have been served with the notice under s 124. She does not allege that a submission was made in this way to which she could have made a good answer had she had the opportunity to do so, but lost that opportunity because the submission was not in fact received by her at that time. This therefore does not provide a basis for setting aside the order that was made.

83. [83]
    There was also a complaint that at least the second proceeding was not carried on bona fide because there was no intention to go back into possession of the premises. It certainly did appear that at the time the matter went to a hearing in 2007 as a result of things that somebody had done to the premises they were effectively unusable. That would necessarily have been obvious to the judge who heard those proceedings, as a result of the evidence that was put before him by way of photographs at that time. Nevertheless, the matter was ultimately resolved on the basis that there had been no proper notice under s 124 of the Property Law Act served because it had not been served on Mrs Moore. That point was independent of the state of the premises, or for that matter any desire on the part of the applicants to resume possession or to continue to operate a business on the premises.

84. [84]
    The position was simply that the respondent had not satisfied the requirements of s 124 of the Property Law Act, and as a result various consequential orders were made. It does not seem to me that the outcome in relation to that matter would have been any different even if the applicants had admitted that they did not want to continue to operate the business. In these circumstances, therefore, even if a failure to reveal this can be characterised as fraud on the part of the applicants (which I do not find), the requirement that the fraud be material to the outcome has not been satisfied in this matter, and so this does not provide any basis for setting aside the orders made in February 2008.

85. [85]
    Overall therefore I am of the view, having considered the various matters raised in the material, that there is only one matter raised which is of any consequence; that is the question of whether the solicitor who commenced each of the proceedings had the authority of Mrs Moore to bring a proceeding in her name. On the face of the material that I have seen, there is reason to believe that that may well not have been the case. In those circumstances, I think it is reasonable for the matter to be investigated further, and for Mr Moore, and the solicitor, to be given an opportunity or a further opportunity to be heard in relation to that point.

86. [86]
    If it be the case that the solicitor did not have her authority to commence the proceeding in her name, it may well be appropriate to set aside the order that was made in each of the proceedings, which would (importantly) mean that the costs orders would be set aside. For that reason, until the matter is finally resolved, I stay enforcement of each of the costs orders, that is the costs order made in claim D36/06 on 23 October 2006, and the costs order made in D46/07 on 5 February 2008. My associate will provide a copy of these reasons to each of Mr Moore and the solicitor acting at the time when each proceeding was commenced, and arrangements will be made to have the matter come on for further hearing on a date which can be arranged to meet the convenience of all parties. Unless some other date is arranged, however, I fix a default date of 15 November 2010.

87. [87]
    Accordingly, the orders that I make at this time are simply:

1. Further hearing of these applications adjourned to 15 November 2010.

2. Until the further hearing and determination of these applications, the enforcement of the costs orders made on 23 October 2006 in D36/06 and on 5 February 2008 in D46/07 be stayed.