Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2021
  4. Cardillo v Moreton Bay Trailer Boat Club Incorporated - [2021] QDC 75

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Cardillo v Moreton Bay Trailer Boat Club Incorporated[2021] QDC 75

Cardillo v Moreton Bay Trailer Boat Club Incorporated[2021] QDC 75

DISTRICT COURT OF QUEENSLAND

CITATION:

Cardillo v Moreton Bay Trailer Boat Club Incorporated & Anor [2021] QDC 75

PARTIES:

PAUL ANTHONY CARDILLO

(plaintiff)

v

MORETON BAY TRAILER BOAT CLUB INCORPORATED

(defendant)

and

JOHN CARDILLO

(defendant by counterclaim)

FILE NO:

BD2243/2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

5 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2021

JUDGE:

Muir DCJ

ORDER:

  1. The respondent/defendant’s oral application for a declaration of informal service made on 17 March 2021 is dismissed.
  2. The application by the defendant by counterclaim to set aside the order for renewal of the counterclaim made by this court on 17 August 2020 is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ORDER FOR RENEWAL OF COUNTERCLAIM – APPLICATION TO SET ASIDE ORDER FOR RENEWAL – DECLARATION OF INFORMAL SERVICE – BREACH OF CONTRACT – LOSS OF RENTAL INCOME – where the respondent filed a counterclaim against the applicant – where the applicant was not served with the counterclaim within one year of the counterclaim being filed – where the respondent previously obtained an ex parte order for renewal of the counterclaim – whether the order for renewal of the counterclaim should be set aside under s24 Uniform Civil Procedure Rules 1999 (Qld) – whether reasonable efforts were made to serve the counterclaim on the applicant within one year of it being filed – whether there is another good reason to renew the counterclaim  – where a copy of the counterclaim came into the possession of the applicant within one year of the counterclaim being filed – whether to exercise the discretion to declare informal service under s117 Uniform Civil Procedure Rules 1999 (Qld)

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 16(d), r 24, r 117, r 389,  r 667(2)(a)

Limitations of Action Act 1974 (Qld) s 10, s 38(1)

CASES:

AMCI P/L v Corcoal Management P/L and Ors [2013] QSC 50

Aon Risk Services Australia v Australia National University (2009) 239 CLR 175.

Babcock & Brown Pty Ltd & Ors v Arthur Andersen [2010] QSC 287

Derry v Peek (1889) 14 App Cas 337

Egan v Posman [2018] QDC 53

Gerace v Auzhari Supplies Pty Ltd (in liq) (2014) 87 NSWLR 43

Heaven v Road and Rail Wagons Ltd [1965] 2 QB 355

Hightop Pty Ltd v Kay Sheila Lawrence [2010] QCA 270

Hutchinson v Equititour Pty Ltd [2011] 2 Qd R 99

Lewis v Carter [2018] NSWCA 118

McIntosh & Anor v Maitland & Ors [2016] QSC 203

Muirhead v The Uniting Church in Australia Property Trust [1999] QCA 513

Paragon Finance v DB Thakerar & Co [1999] 1 All ER 400

Peco Art Inc v Hazlitt Gallery Ltd [198] 3 All ER 193

Poole v Moody [1945] 1 KB 350

Port Ballidu Pty v Frews Lawyers [2019] 1 Qd R 276

Quinlivan v Konowalous [2019] QSC 285

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Woodhead v Elbourne [2001] 1 Qd R 220

COUNSEL:

J.P. Hastie applicant/ defendant by counterclaim

D.L.K. Atkinson QC for the respondent/defendant

SOLICITORS:

Coves and Co for the applicant /defendant by counterclaim

Cornwalls for the respondent/defendant

Introduction 

  1. [1]
    This is an application by the defendant by counterclaim John Cardillo (the applicant), to set aside an ex parte order for renewal of a counterclaim obtained against him by the defendant, Moreton Bay Trailer Club Incorporated (the respondent), on 17 August 2020.[1]  The order for renewal was necessary because the counterclaim was filed on 16 July 2018 but was not served within one year.[2]
  2. [2]
    The applicant applies under r 16(d) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) or alternatively UCPR r 667(2)(a) but the challenge to the order turns on the application of UCPR r 24. This section provides, in part, as follows:

“24  Duration and renewal of claim

  1. (1)
    A claim remains in force for 1 year starting on the day it is filed.
  1. (2)
    If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.
  1. (3)
    The claim may be renewed whether or not it is in force. …” [Emphasis added]
  1. [3]
    The hearing of the application to set aside the order for renewal is a hearing de novo at which further evidence is admissible[3]. The application must be determined after considering all of the evidence adduced by the parties.[4]  The respondent bears the onus of demonstrating that the order for renewal should be made or sustained notwithstanding that it is the applicant who brought the application to set aside the order.[5]
  2. [4]
    In compliance with the order for renewal (which renewed the counterclaim until 30 September 2020), the counterclaim was personally served on the applicant on 26 August 2020. But during the hearing, senior counsel for the respondent made an oral application pursuant to UCPR r 117, for a declaration that informal service of the counterclaim occurred on 19 July 2018, within one year of it being filed (to the effect that the application and the order were redundant). I granted leave, so this application was also ventilated before me. 
  3. [5]
    It follows that the following three issues emerged for my determination:
    1. (1)
      Issue one:  Has the respondent satisfied me that there was informal service of the counterclaim on 19 July 2018?
    2. (2)
      Issue two: Has the respondent satisfied me that reasonable efforts were made to serve the counterclaim on the applicant within one year of it being filed? 
    3. (3)
      Issue three: Has the respondent satisfied me that there is another good reason to renew the counterclaim?   
  1. [6]
    These questions cannot be answered without an understanding of the relevant factual background and the issues in dispute between the parties.  Many aspects of the facts are contested and are not easily discerned from the pleadings or the material. It is impossible and unnecessary to resolve these issues on this application.  It follows that the overview below has been elicited from the pleadings and material for the purpose of this application only.

Overview of the facts and issues

  1. [7]
    Paul Cardillo is the brother of the applicant and the plaintiff in these proceedings. The applicant is a licensed builder.  At the relevant time, both Paul and the applicant were long-term members of the respondent, a boating club situated on the foreshore and harbour at Manly. Over the years, the applicant held several management positions with the respondent including commodore and honorary secretary. In September 2013 he was appointed as an honorary member of the respondent.
  2. [8]
    Between 2007 and 2010, a new marina development creating a further series of boating berths was built by the respondent at the Manly site. The applicant was honorary secretary during this period. He was also allegedly either authorised or engaged by the respondent to act as the project manager for the development and to undertake some construction work in relation to it. The terms of this engagement are unknown - it seems there was no written agreement between the parties. Although the evidence does reveal a written agreement dated 17 December 2008 between the respondent and a company unrelated to the applicant (The Jetty Specialist) for the design and construction of the marina. [6] 
  3. [9]
    On 28 November 2009, the applicant and Paul entered into a written agreement for construction and sub-lease of berth Z1 at the site. This agreement included lease rental consideration of $231,660.00 (incl GST) and a deposit of $75,553.00 for berth Z1.[7]  This berth was completed around the middle of 2010.
  4. [10]
    In late July 2010, the applicant emailed Dibbs Barker, the solicitors acting for the respondent in relation to the development, requesting that the applicant’s name be removed from the eventual sub-lease. In his evidence before me, the applicant explained that he did not want to be a party to the sublease due to “personal, financial and business issues.”[8] It followed that on 1 August 2010, Paul alone executed a 24-year written sublease agreement over berth Z1.[9] The sublease was executed by the respondent on 3 August 2010 and registered with the Queensland Titles Office on 6 August 2010. It relevantly provided for a commencement date of 30 July 2010 and for lease rental consideration of $210,000.00 (incl GST).
  5. [11]
    Subsequently, several committee members of the respondent became concerned that berth Z1 had either not been paid for in full or at all and requested an investigation. Ian Heathwood, a practising solicitor and then partner of McKays solicitors, was the honorary secretary of the respondent at the time and was tasked with overseeing these investigations. Mr Heathwood joined the management committee of the respondent and took over the role of secretary from the applicant in about August 2013. It is alleged that at this time, the respondent  was facing “a series of challenging financial issues” which needed to be addressed to ensure its survival.[10]    
  6. [12]
    Mr Heathwood was also a long-time family acquaintance of the applicant and was initially confident that the allegations that berth Z1 had not been paid for were baseless.[11] 
  7. [13]
    After some initial investigations, on 10 December 2013, Mr Heathwood sent the applicant a letter setting out the respondent’s perspective of the  relevant facts and providing the applicant with an opportunity to address the respondent’s concerns about the rent payments for berth  Z1.[12] Relevantly, this letter queried the basis of the reduction of the rent consideration and the accuracy of the payment schedule contained in spreadsheets prepared by external accountants. The letter also referred to a file note that recorded a conversation between a paralegal from Dibbs Barker[13] and the applicant on 29 July 2010 about berth Z1. In it the applicant is alleged to have said that: the lease rental had been paid in full; the price was $210,000 (inc. GST); the commencement date was to be 30 July 2010;  the tax invoice was to be sent to the applicant; and the initial annual levy was to commence on 30 July 2010.
  8. [14]
    Mr Heathwood’s evidence is that during 2014 he had several conversations with the applicant, in person and on the phone, in which he sought to further understand the contra arrangement for payment of berth Z1. During one of these conversations the applicant is alleged to have told Mr Heathwood that the applicant had carried out a considerable amount of work and that he had project managed the entire development construction, but that he had been foolish to proceed with the work without a proper contract. [14]
  9. [15]
    In another conversation in about January 2014, Mr Heathwood allegedly asked the applicant to explain what had “gone on” in terms of payment for berth Z1 as he “could not make the numbers add up”. Mr Heathwood’s evidence is that the applicant told him that there had been a “contra deal” between himself and the respondent in relation to the work that the applicant and his building company had performed on the development and that in exchange for this work, it was agreed that the applicant and Paul would not have to pay the full price for the berth. The applicant is also alleged to have told Mr Heathwood that “it was all documented and above board” and he would send a brief summary “in the next couple of days” and follow up with the “actual documentation” after that.[15]
  10. [16]
    The applicant accepts that from about December 2013 he had  “interactions” with Mr Heathwood about payments under the sub-lease and about what the applicant was alleged to have said to the respondent’s accountants. The applicant also alleges that he spoke to Guy Houghton and Bruce Richardson, who were allegedly on the respondent’s management committee. Both men emphatically deny having any such discussions with the applicant. Mr Houghton’s evidence is that he was not a member of the management committee until August 2014 and Mr Richardson’s evidence is that he was not a member at any time after December 2013. [16]
  11. [17]
    On 3 February 2014, the applicant sent Mr Heathwood a letter purporting to address the concerns of the respondent about the purchase price for berth Z1. The letter enclosed three tax invoices: tax invoice 795 dated 27 October 2008 for $71,233.57 (inc GST) ;[17] tax invoice 810 dated 6 July 2009 for $70,000 (inc GST); and tax invoice 945 dated 10 September 2009 for $92,100.00 (inc GST) issued by “John Cardillo Building Services.”  These invoices contain a some general lines about the work being invoiced “RE: MBTBC Marina” and are not addressed to anyone. The letter also states: that “[t]he purchase price has been paid in full. There is no error and no short payment of the purchase price.”[18] Later, Mr Heathwood asked the applicant to provide more detailed documentation about the work carried out than that contained in the invoices. [19] Despite assurances by the applicant that such information would be shortly forthcoming, no such documentation was ever received. 
  12. [18]
    On 17 September 2014, Mr Heathwood sent Paul correspondence to the effect that the respondent’s investigations had revealed that payments of $171,233.57 (including a deposit of $5,000) had been made, leaving an unpaid balance for  rental consideration (for which demand was made) of $38,766.43.[20]. This letter also relevantly requested that Paul:

“Identify when and how the balance of the money in relation to the berth price was paid (if they were paid), providing documentary evidence of that or those payments. In this respect the Committee wishes me to point out that any financial arrangements between the Club and your brother or his construction company with respect to the construction of the marina, are irrelevant to the issue of whether you have or have not paid the full price for the berth.” [Emphasis added]

  1. [19]
    The applicant’s evidence is that at the time that “these letters were received” (i.e. the December 2013 letter and the 17 September 2014 letter) he sought assistance from a solicitor, Mr John Drakos.[21] Mr Drakos was a former commodore of the respondent and a friend of the applicant.
  2. [20]
    In October 2014 the applicant and Mr Drakos attended a “without prejudice” meeting with Mr Heathwood at the offices of McKays Solicitors. It is not clear whether Paul attended this meeting, but the evidence of the applicant was that the dispute was not resolved and Mr Drakos “went on to act for Paul in respect of the Dispute.” [22]
  3. [21]
    Due to the alleged non-payment of the sum of $38,766.43 (inc GST) in lease rental payments, on 10 April 2015, the respondent served Paul with a notice to remedy breach under s124 of the Property Law Act 1974. Then on 21 April 2015, the respondent purported to terminate the Lease. On 11 December 2015, the respondent leased berth Z1 to a third party.
  4. [22]
    Otherwise, due to all the negotiations and effort that Mr Heathwood and the management committee undertook to resolve the respondent’s then dire financial position, the dispute was largely pushed to the background by the respondent until June 2018.

About the proceeding

  1. [23]
    On 19 June 2018, Paul commenced the current proceedings seeking a declaration that the notice to remedy, the termination, and the assignment to a third party was unlawful. This claim was amended on 8 June 2020.  Paul currently seeks damages for breach of contract in the sum of $230,058.00 (or alternatively $175,000).[23] He also claims the sum of $57,541.96 for loss of rental income from the berth.  Paul’s case is that he was not in default under the sublease because he made various payments ($71,058 on 1 December 2008, $70,000 on 8 December 2008; $70,000 on 23 December 2008; and $14,000 on 11 May 2009) into the National Australia Business bank account of “John Cardillo Builders” in full satisfaction of these obligations.[24]   His explanation being that he was directed by the applicant to make payments this way because the construction costs for the site were being temporarily run out of the applicant’s business account until bank finance for the development was finalised. [25]
  2. [24]
    On 16 July 2018, a defence and counterclaim including the applicant as the defendant by counterclaim was filed by the respondent’s then solicitors, McKays Solicitors.[26]  By its defence, the respondent maintains that berth Z1 has not been paid in full.  Mr Heathwood contended that it was only after the proceedings were commenced that the respondent again reviewed its records and realised that its accounting spreadsheets wrongly recorded amounts that had been paid under the sub lease when they had not been; and that the only payment it had received in relation to berth Z1 was the deposit payment of  $5,000. The respondent also maintained that it did not authorise the reduction in the sub-lease and that it did not receive any of the monies paid into the John Cardillo builders account or authorise any contra deal with the applicant about berth Z1.[27]
  3. [25]
    By its counterclaim, the respondent alleges that the applicant was in a special position of trust and confidence, was a fiduciary and had no power to enter into or vary any contract without the prior approval of the management committee, which he did not have. The respondent claims equitable compensation or, alternatively, damages for breach of fiduciary duties against the applicant.
  4. [26]
    The applicant contended that if the proceedings against him continue, his case will be that:[28]
  1. (a)
    at the times that the rent and initial levy fell due for payment under the agreement to sub-lease and sub-lease, the respondent owed him a significant amount of money for work and services he performed on the development;
  2. (b)
    due to how long ago those events occurred, he cannot be certain about the exact amount that was owed to him;
  3. (c)
    at the time that the development was taking place, the respondent was short of funds and could not afford to continue with the project;
  4. (d)
    due to the respondent’s shortage of funds and for convenience:
  1. (i)
    Paul paid the sub-lease payments into the applicant’s building business bank account;
  2. (ii)
    the sub-lease payments were then used by the applicant to continue to carry out the development; and
  3. (iii)
    at no stage were these payments applied for any purpose other than the continued management and construction of the development.
  1. [27]
    The applicant alleges that the arrangement described in the preceding paragraph was discussed with the respondent’s then management committee and, at no stage, was any complaint or objection raised.[29]

Service of the counterclaim  

  1. [28]
    The counterclaim was served on Paul’s solicitor (Peter Previtera of Alex Mckay and Co) by letter from the respondent’s then solicitor (Mr Evans of McKays Solicitors) on about 18 July 2018.[30] At the same time, Mr Evans sought confirmation as to whether Mr Previtera  held instructions to accept service on behalf of the applicant. This letter also stated that “if we do not receive confirmation of the same by noon on Friday (20 July 2018) we shall attend to personal service of the proceeding on Mr John Cardillo without further reference to your office.” [31]
  2. [29]
    The evidence from Mr Previtera is that, although he has represented Paul in these proceedings, he has “had regular contact with John both by telephone and email.”[32]  Two obvious examples are immediately apparent from the correspondence.
  3. [30]
    First, on 19 July 2018 Mr Previtera sent the letter of 18 July 2018 from McKays Solicitors (attaching the counterclaim) to both Paul and the applicant. On 19 July 2018 the applicant sent an email to Mr Previtera stating that “I will act for myself once they serve me. I am not concerned with there[sic] accusations and will not be spending money on my defence.”[33]
  4. [31]
    Secondly, on 11 February 2019 Mr Previtera forwarded a letter  he had received from Landers & Rogers about a mediation of the proceedings to the applicant. This letter stated that the solicitors were instructed to invite the applicant to attend a meditation and that  “[i]f any mediation is unsuccessful, the club intends to serve John Cardillo with this counter-claim.”[34] Mr Heathwood said he did not give instructions to send the 11 February letter nor did he see it before it was sent. I accept this evidence. It is entirely plausible that the instructions came from the insurers and not from the respondent. In an email dated 11 February 2019, the applicant responded to Mr Previtera  as follows:

“Hi All, Until they serve me with there (sic) false allegations, I think it’s pointless me wasting time engaging in mediation. It will only be further distraction and attempt to validate Heatwoods lies (sic)”[35]. 

  1. [32]
    On 20 July 2018, Mr Evans from McKays Solicitors engaged a process server to serve the applicant personally at a property located at 54 Goondool Street Kooringal. This address was obtained from the applicant’s QBCC license search. [36] Subsequently the process server advised that service would cost $1,150.00 because the property was only accessible via private boat and would take some three hours to attend, dependent on the weather.[37] Mr Evans then gave instructions to the process server to go ahead with service. On 24 September 2018, the process server provided a report in an email to Mr Evans, advising that service was unable to be effected because no one was at the property. This report noted, amongst other things, that neighbors had told the process server that the applicant did not usually reside at the property and usually only attended on weekends or holiday periods. The report stated that an Australian Electoral Roll search listed the applicant’s residence at the property and that property searches conducted did not identify any listings for the applicant but revealed property to be held in the name of Melissa Jayne Cardillo (the applicant’s wife). 
  2. [33]
    Over this period, the respondent’s legal representation changed from McKays Solicitors to the solicitors for its insurers Rogers & Lander.[38] There is nothing in the material before me to suggest that Mr Evans forwarded the email about service of the counterclaim not being effected to Landers & Rogers. But it is reasonable to infer, as a matter of common sense, that this firm, as the respondent’s new solicitors, ascertained this fact shortly after they took over the file. They certainly knew about it in the period leading up to the mediation in 2019 as the letter of 11 February 2019 referred to in paragraph 31 above shows.
  3. [34]
    Inexplicably, there is no evidence of any attempts by Landers & Rogers to serve the counterclaim on the applicant during the time they acted for the respondent. Nina Thomas, a solicitor in the employ of Cornwalls who later became the legal representative for the respondent, reviewed the file she received from Landers & Rogers on around 11 June 2020. Her evidence is that it is “unclear” whether Landers & Rogers took any further steps to serve the counterclaim.[39] 
  4. [35]
    On 24 Jul 2020, Cornwalls sent Mr Previtera a copy of the ex parte application for an order to renew the counterclaim together with the supporting material that had been filed in the District Court. This letter must have been passed on to the applicant because on 31 July the applicant responded as follows:[40]

“I have been provided with a copy of your email to Alex Mackay & Company Solicitors of 24 July 2020. I am somewhat surprised that you have been allegedly unable to serve me with legal proceedings considering your client has had my contact details including mobile telephone number, which has remained unchanged for the last 25 years, and you have not bothered to telephone me about this matter at any time.

Also, you have had contact with my brother and his solicitor for the duration of the litigation. Why you have not approached either of them to arrange service on me at an earlier point in time.

I am happy to make myself available to you so you can serve proceedings on me if this is what you want to do and I am at a loss to understand why this has not been done sooner.” [Emphasis added]

  1. [36]
    In light of this letter, on 3 August 2020, Cornwalls wrote to the applicant asking him to confirm that he did require the counterclaim to be renewed. The applicant then wrote back on 11 August, changing tactics slightly (given the language of this letter it is reasonable to infer as I do that the applicant obtained some legal advice as he was well entitled to do) stating that he required the counterclaim to be renewed because the respondent could have easily taken “reasonable steps” to serve him earlier.

Was there a deliberate decision not to serve the counterclaim?

  1. [37]
    It was initially maintained by the applicant that there had been a deliberate decision not to serve the applicant with the counterclaim. But this submission was subsequently withdrawn by counsel for the applicant after the cross examination of Mr Heathwood.  This was a reasonable concession. For a number of reasons, the evidence does not support a finding of any deliberate or tactical decision on the part of the respondent not to serve the applicant with the counterclaim. 
  2. [38]
    First, Mr Heathwood was cross examined at some length about what he did and did not know about service. On occasions during this questioning Mr Heathwood became frustrated and defensive. But overall I found him to be a reliable and honest witness who did his best to answer the questions posed of him. Mr Heathwood’s affidavit evidence was that the respondent never resolved “that it should not serve the Counterclaim” on the applicant and that its solicitors were never instructed not to serve the counterclaim.  This evidence, which I accept, is consistent with the initial costly attempt to serve the counterclaim on the applicant.  During the course of cross examination, Mr Heathwood accepted that on 20 December 2018 he knew (from correspondence from Mr Previtera to Landers & Rogers which questioned whether it was intended to serve the applicant), that the counterclaim had not yet been served on the applicant.  Mr Heathwood’s response which I accept as plausible and reasonable was “Yes, they hadn’t done it yet.”[41] This finding it also consistent with Mr Heathwood’s evidence, which I accept, that at the time Cornwalls took over the file on 11 June 2020 he assumed that the applicant had been served and had filed a defence.[42]  It follows that I accept the evidence of Mr Heathwood that there were long standing instructions to the respondent’s solicitors to serve the applicant and that these instructions were never withdrawn. It was reasonable to infer, as Mr Heathwood did, that attempts to serve the applicant would continue.  
  3. [39]
    Secondly, Mr Heathwood’s  evidence, which I accept, was that he found out at some time before the “conciliation” (I infer he was referring to the mediation held on 3 June 2019) that the applicant had still not been served, had not filed a defence and would not be attending the conciliation.  Mr Heathwood was appalled. As at June 2019 Mr Heathwood  “fully expected that they would serve him [the applicant] as soon as they found him.  I couldn’t help them with where he was.  All I knew were rumours about where he was, and that’s useless.”[43]
  4. [40]
    Thirdly, Mr Heathwood accepted that he had an email and phone numbers for the applicant but said he “wouldn’t call him because he’s extremely aggressive and rude”.[44]  Given the long history of the dispute and the tone of some of the emails from the applicant to Mr Previtera about this matter, it is reasonable to infer as I do, that the relationship between Mr Heathwood and the applicant was not amicable and that in those circumstances it is understandable that Mr Heathwood did not contact the applicant directly. Mr Heathwood’s evidence, which I accept as a matter of common sense, was that he did not give the solicitors this information but that one of his fellow partners had sent an email to them with the details of where the applicant lived “and so on”.[45] It is also reasonable for Mr Heathwood to have left it to the respondent’s solicitors to conduct the matter as they saw fit on the respondent’s behalf.  Whilst he was a solicitor of some 35 years standing, he frankly admitted he was “not a litigator”.
  5. [41]
    Against this backdrop I now turn to consider the first issue for my determination.

Issue one: Was there informal service of the defence and counterclaim upon the applicant on 19 July 2018?

  1. [42]
    The respondent applies under UCPR r 117 for an order that service of the counterclaim was effected on the applicant on 19 July 2018.  Rule 117 UCPR which appears in UCPR “Chapter 4 – Service” provides for Informal Service as follows:

117  If—

  1. (a)
    for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and
  2. (b)
    the court is satisfied on evidence before it that the document came into the person’s possession on or before a particular day;

the court may, by order, decide that the possession of the document is service for these rules on the day it came into the person’s possession or another day stated in the order.

  1. [43]
    On one view, although it was not argued before me, this rule is not applicable to the present facts because the evidence is that pursuant to the order for renewal (made on 17 August 2020), the counterclaim was personally served on the applicant on 26 August 2020 as required under Chapter 4 of the UCPR. If this is correct, it would not be open to me to find that there was informal service and I would answer Issue One in the negative.
  2. [44]
    But in case I am wrong I have also considered the application as though the order for renewal had not been made and personal service was not effected in accordance with Chapter 4.
  3. [45]
    By virtue of  UCPR r 105(1) and 178(4) a counterclaim must be served personally.  Under UCPR r 24(1) the counterclaim remains in force for one year from when it was filed. It follows that absent an order for renewal under UCPR r 24(3), the defence and counterclaim against the applicant was required to be served personally on him by 19 June 2019.  The evidence is that it was not served within this time.  I am therefore satisfied that the pre requisite condition in UCPR r 117(a) is met.
  4. [46]
    The evidence is that the applicant was never personally served with the counterclaim within one year of it being filed on 19 June 2018 but it is uncontroversial that a copy of this document came into his possession within this one year period when Paul’s solicitor Mr Previtera forwarded an email to the applicant on 19 July 2018. [46] I am therefore satisfied that the pre requisite condition in UCPR r 117(b) is also met.
  5. [47]
    The question is whether I ought to exercise my discretion to deem service to have occurred on 19 July 2018.
  6. [48]
    There are no rigid rules in relation to how the discretion  under UCPR r 117 should be exercised. As Justice Jackson observed in AMCI P/L v Corcoal Management P/L and Ors [2013] QSC 50 at [32]:

“There is no uniformity in the rules of court in different Australian jurisdictions as to what will be sufficient for satisfactory informal service by reason of receipt of or attention being drawn to a document.”

  1. [49]
    It follows that each case turns on its facts.
  2. [50]
    In submitting that I should exercise my discretion in the respondent’s favour, Senior Counsel for the respondent referred to the decision of Porter QC DCJ in Egan v Posman [2018] QDC 53. But, in my view, that decision is distinguishable from the present case in the following ways:
    1. (1)
      First, it was accepted in Posman that “actual” service, as required under the UCPR, had been reasonably attempted. In the present case, the evidence is that only one attempt was made to personally serve the applicant with the counterclaim. Whilst it was an expensive attempt, the applicant ought to have made more of an effort to serve the counterclaim before falling back on the power under UCPR r 117.  For this reason and as discussed under the heading “Issue two” below, I am not satisfied that reasonable efforts were made by the respondent to serve the counterclaim on the applicant. 
    2. (2)
      Secondly,  it was also accepted in Posman that the defendant (who was a lawyer admitted in Papua New Guinea) had come into possession of the  claim and statement of claim after it was served personally on a senior litigation secretary at the defendant’s firm (who acknowledged she had instructions to accept service and signed an acknowledgment of service), in circumstances where it was accepted that service in this manner is recognised as a proper mode of service of originating process under UCPR r 115 and the relevant rules of Papua New Guinea. The facts in the present case are entirely different. They do not involve an attempt to serve the applicant. Whilst I accept that the letter serving the defence and counterclaim on Paul (in accordance with the UCPR)  did ask for a response as to whether Paul’s solicitor had instructions to accept service on behalf of the applicant, service of the document was only directed to Paul. It is reasonable to infer, as I do, that it was not the intention of the respondent’s solicitor to serve the counterclaim on the applicant by email at that point in time. Further, absent an order for substituted service, the mode of service by email is not recognised as a proper mode of service of a counterclaim.    
  3. [51]
    The fact that the respondent has now became aware (over two and a half years later), that the counterclaim came into the applicant’s possession before it became stale, does not justify the exercise of my discretion to order informal service in this case, for two main reasons. 
  4. [52]
    First, the respondent has conducted the proceedings on the basis that there has been no service – the ex parte application for an order for renewal of the defence and counterclaim was premised on this fact. Further, and as counsel for the applicant correctly submitted, to order there had been informal service from 19 July 2018 at this juncture would be problematic because arguably there would have been “no step” in the proceeding for over two years. This in turn potentially invokes considerations under UCPR r 389 and what are commonly referred to as “Tyler v Custom Credit” considerations.[47] 
  5. [53]
    Secondly, in the present case there is no cogent evidence that there were any or significant legal or practical difficulties in effecting service of the defence and counterclaim on the applicant personally and within time. Indeed, once the order for renewal was obtained, the evidence is that the counterclaim was served on the applicant nine days later. Even if there were difficulties, again, the observation of Justice Jackson in AMCI that “UCPR 117 is not intended to resolve difficulties in the mater of service required by the UCPR” is most apposite.[48]
  6. [54]
    I therefore order that the respondent’s oral application for an order for informal service under UCPR r 117 is dismissed.

Issue two: Were reasonable efforts made to serve the counterclaim on the applicant?

  1. [55]
    As discussed earlier in these Reasons, only one attempt to serve the counterclaim was made by the respondent’s solicitors within one year of it having been filed. Whilst I accept there was not a deliberate or tactical decision by the respondent not to serve the counterclaim, it remains the fact that after this one attempt, there is no evidence of any further attempts at service.   The fact that there were long standing instructions to serve the counterclaim and Mr Heathwood thought that attempts to serve were continuing to be made does not change the fact that on the evidence before me nothing was being done to effect service for the remainder of the one year period.
  2. [56]
    This is most unsatisfactory. One attempt at service in one year is simply not reasonable in the circumstances of this case. That it was an expensive attempt does not change this.
  3. [57]
    It follows that the respondent has not satisfied me that reasonable efforts were made to serve the counterclaim on the applicant within one year of it being filed.

Issue three:  Is there another good reason to renew the counterclaim?   

Legal principles

  1. [58]
    In determining whether there is “another good reason”, the court’s discretion is wide and unfettered. But it must be exercised having regard to UCPR r 5 and with the following observations of White JA in Hightop Pty Ltd v Kay Sheila Lawrence [2010] QCA 270 at [35] in mind:

“Rule 5 states the philosophy of the UCPR, requiring parties to proceed expeditiously and, amongst other things, to avoid undue delay. Thus any conduct of the proceedings by a party which entails unexplained or inexcusable delay cannot expect to be vindicated by a court (or the registrar) exercising the discretion in r 24 (2).”

  1. [59]
    The authorities clearly establish that a party who deliberately chooses to refrain from serving a claim will ‘rarely’ be able to show good reason to warrant the renewal of the claim.[49] The reasons for the lack of further attempts at service of the counterclaim on the applicant by the respondent’s solicitors remain a mystery in this case. But as discussed at paragraphs 37 to 40 of these Reasons, I am satisfied that the lack of action was not a deliberate act on behalf of the respondent.  It follows that this case does not fall within that rare category of cases.
  2. [60]
    In Muirhead v Uniting Church in Australia Property Trust [1999] QCA 513 at [4] Pincus J identified some of the considerations relevant to an application for renewal, as follows:
  1. “(1)
    There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
  1. (2)
    The discretion may be exercised although the statutory limitation period has expired.
  1. (3)
    Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
  1. (4)
    There is a wide and unfettered discretion and there is “no better reason for granting relief than to see that justice is done”.
  1. [61]
    The applicant submitted that the concept of there being a “tendency to relax rigid time limits” pre-dated more contemporary attitudes towards case management (such as those espoused in Aon Risk Services Australia v Australia National University[50]) and must be doubted. 
  2. [62]
    I accept this submission.  It is consistent with the following observation of Jackson J in McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [34]:

“In my view, it can no longer be said in this court that, in cognate branches of the procedural law, there is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties. That would be inconsistent with a number of the statutory rules, concepts, principles and practices that are now recognised and incorporated into our modern laws of civil procedure.” [Emphasis added]

  1. [63]
    But of course, these observations do not override or otherwise derogate from the broad discretion to renew a counterclaim expressly contained in UCPR r 24 (2).

Analysis

  1. [64]
    The respondent essentially relies on four pillars in support of its submission that there is “another good reason” to renew the counterclaim.  First, that it has a worthwhile action against the applicant. Secondly that the applicant had knowledge of the counterclaim since July 2018. Thirdly, that the issues on foot between Paul and the respondent overlap the issues to be ventilated in the counterclaim dispute. Fourthly, there is no real prejudice to the applicant. I will deal with each of these in turn.

Worthwhile action

  1. [65]
    The respondent  submitted that the facts raise serious allegations of conflict, misuse of power, breaches of duty and deceitful conduct on the applicant’s part (for which he should not escape examination) because:
    1. (a)
      apart from the applicant’s broad assertions, there is no evidence of any “contra” deal (and even Paul does not plead there was a contra deal);
    2. (b)
      there have been several different versions of events given by the applicant;
    3. (c)
      it highly implausible that money owed to the respondent would be authorised to be directed elsewhere when payment would normally need to be taken into account for tax, depreciation, reconciliation, and transparency purposes;
    4. (d)
      there is a concerning conflict in a secretary of an organisation authorising a creditor to pay him instead of that organisation, particularly without any written authorisation.
  2. [66]
    I am satisfied that the matters identified above fairly emerge from the analysis of the contentious facts and on the material before me. It follows that I am satisfied that respondent appears to have an “apparently worthwhile” cause of action against the applicant. This is a factor which favours renewal, but it does not, on its own, necessarily found a good reason for renewal.[51] 
  3. [67]
    This is not the end of the issue of whether the claim is a worthwhile.

Limitation Issue

  1. [68]
    The respondent’s claim against the applicant is an equitable cause of action for breach of fiduciary duties. It is accepted that, consistent with equitable principles, there is no limitation period that applies to actions for breach of fiduciary obligations.[52]
  2. [69]
    But the applicant submitted that if the respondent’s claim is analogous to any common law cause of action (to which a limitation period does apply) it is usually appropriate to apply that limitation to the claim.[53] The respondent submitted that this principle does not necessarily apply to breaches of fiduciary duty.[54] But in Port Ballidu Pty v Frews Lawyers [2019] 1 Qd R 276 the Queensland Court of Appeal accepted that the principle applied to import applicable limitation periods for legal and statutory causes of action into claims for breach of fiduciary duty.
  3. [70]
    The applicant submitted that the respondent’s claim is analogous to an action for deceit[55] so that the analogous limitation period is one which ended 6 years[56] after the fraud was discovered or could with reasonable diligence have been discovered.[57]
  4. [71]
    I accept this submission as correct as a matter of law.
  5. [72]
    The applicant also submitted that, as a matter of fact, the respondent had sufficient knowledge of the alleged fraud or could with diligence have discovered the alleged fraud by early 2014 at the latest. The applicant submitted therefore that the limitation period expired early to mid-2020. Prior to the order for renewal being made.
  6. [73]
    In support of this submission the applicant pointed to the evidence properly analysed demonstrating that:[58]
    1. (1)
      the respondent was, by early 2014 at the latest, sufficiently aware of the facts upon which its case against the applicant is now premised and could, from that time, have acted to institute proceedings;
    2. (2)
      in any event, the respondent could with reasonable diligence have made the further enquiries (the bank account record review) it says it undertook in 2018.              
  7. [74]
    The onus rests with the respondent in both instances.[59] Reasonable diligence does not mean “the doing of everything possible” but rather doing what “…an ordinary prudent” person would do in the context of the case.[60] 
  8. [75]
    The respondent submitted that on the present facts, the discovery of the fraud or deceit by the applicant in June/ July 2018 was stifled to some extent by:[61]
  1. (a)
    the active concealment of the true circumstances of the case;[62]
  1. (b)
    its preoccupation with and prioritisation of keeping the respondent out of impending solvency;[63]
  1. (c)
    Mr Heathwood’s reticence to believe that he was being misled.[64]
  1. [76]
    There is some force to both arguments maintained by the parties. But Mr Heathwood’s evidence upon which the respondent relies was not challenged before me.[65] Overall, I do not consider that the issue can fairly be determined on the evidence before me.  The interests of justice warrant the issue being ventilated in full before a trial judge. 
  2. [77]
    The applicant submitted that if I am not prepared to conclude that the limitation period had expired, the fact that it may have expired is a “factor against renewal” [66]. That may be correct, but it is also correct to say that the fact the limitation period in tort may still be running (as is open on one view of the evidence in this case), is a factor equally in support of the renewal.[67] 
  3. [78]
    It follows that the issue of whether the limitation period may have expired prior to the order for renewal being made is not a factor that has swayed me either way in the circumstances of this case.  

Knowledge of the claim

  1. [79]
    By his own admission, the applicant accepts that he has been in possession of a copy of the counterclaim since 19 July 2018. As Justice Jackson observed in McIntosh the cases do not “speak with one voice” as to whether notice of a claim is a factor which may show good reason to renew the claim.[68]  Again, it depends on the facts. In this case, the applicant’s knowledge is relevant to the issue of prejudice as discussed under that heading below. On this basis, I am satisfied that the applicant’s knowledge of and possession of a copy of the counterclaim since July 2018 is a factor that supports renewal of the counterclaim. Though again, on its own, it may not necessarily be a good reason for renewal.

Overlap of issues

  1. [80]
    By his amended statement of claim, Paul alleges that the sub-lease was unlawfully terminated and seeks a declaration to that effect. Paul also expressly pleads that he made payments to the respondent by paying the applicant – at the applicant’s direction. Further, in September 2020 Paul requested particulars of, and documents referred to in, the counterclaim from the respondent’s solicitors. The particulars and documents were subsequently provided to him in October 2020.[69]
  2. [81]
    It follows that the resolution of the facts in issue between Paul and the respondent at trial will necessarily involve a determination as to whether money was paid to the applicant. A determination of the applicant’s role is not only central to that dispute but to the issues to be ventilated at trial between the applicant and the respondent (as raised by the counterclaim).
  3. [82]
    In these circumstances it would not be in the interest of justice to curtail the ventilation of the counterclaim issues. It follows that this factor is persuasive of there being a good reason for renewal – although it may not be enough on its own. 

Prejudice

  1. [83]
    It is submitted on behalf of the applicant that he faces significant prejudice if he is forced to defend the counterclaim because:
    1. (1)
      it concerns events which occurred over 10 years ago; and
    2. (2)
      part of his defence depends on the applicant explaining events and transactions which occurred at the time; and
    3. (3)
      (most critically) his defence is heavily dependent upon him producing records including National Australia Bank records that are no longer available.
  2. [84]
    I reject the applicant’s submission of there being significant prejudice to the applicant in this case because it is not supported by my overall assessment of the evidence on this issue. 
  3. [85]
    The applicant’s unchallenged affidavit evidence is that he did not seek legal advice in respect of the counterclaim “or the allegations upon which it is based” until after it was served on him personally in August 2020.  Relevantly his affidavit evidence is that he had known of the various allegations made against him “for years prior to July 2018” but that he had always taken the view that:[70]
    1. (1)
      he had no need to take any step or give serious consideration to the  counterclaim and the allegations it was based upon until he was served by the respondent;
    2. (2)
      he was not going to waste his time or money taking any steps to respond until he was served;
    3. (3)
      the allegations made by the respondent were misconceived and as such it was unlikely that they would every actually serve him.
  4. [86]
    By his affidavit evidence, the applicant also contended that he no longer has a “recollection of every aspect of what has occurred  and that he “no longer retained all of the documents and records which are relevant to the events.”  In particular, he referred to the services and value of the services he performed in relation to the development and bank records from the National Australia bank (which he says he no longer has). The applicant’s evidence is that the National Australia Bank have advised him that the banking records are no longer available for any period prior to 2011. He is also concerned that some of the relevant records held by the respondent may not be able to be recovered. [71]
  5. [87]
    Whilst this evidence is unchallenged, I find it largely self -serving and of little weight or assistance.  The applicant is not an unsophisticated man, he held prominent offices within the respondent, including as the honorary secretary.  He also operated his own business and is the holder of  QBCC license. It is reasonable to infer that he would keep a record or notes. To the extent that the contra deal with the respondent was an oral one, it is not unreasonable to expect, as I do, that that at the very least the applicant would recall the crucial parts of the alleged deal and the names of those on the management committee, with whom he made the deal.   
  6. [88]
    Parts of the applicant’s evidence are contradictory and not supported by documentary evidence referred to in the facts and issues section of these Reasons.  For example, the applicant’s evidence that he thought it was unlikely he would ever be served is inconsistent with the email he sent Mr Previtera on 19 July 2008 stating that “I will act for myself once they serve me.”[72] It is also instructive that despite the applicant allegedly not being able to locate or access relevant National Bank of Australia records (because he was apparently told by the Bank that it no longer held these records) the solicitor for the respondent recently obtained these bank statements through non-party disclosure.[73]
  7. [89]
    Other examples include that the applicant by his own admission: was aware of the dispute surrounding the payment of the sub lease of berth Z1 from around late 2013 to early 2014, at which time he purportedly provided Mr Heathwood with the relevant documentation to support his version of what had occurred; he took legal advice about the allegations in 2014; was aware that the proceedings commenced by Paul in 2018 (over the termination of the sub-lease in 2015) were being defended and that his alleged contra deal with the respondent was a live and crucial issue in that proceeding.
  8. [90]
    Overall, the evidence shows that since late 2013, the respondent afforded the applicant considerable opportunity to gather information relevant to his case and to identify and locate the underlying documents. As set out above, at one point, the applicant sent through what he said were the relevant invoices to prove his case.
  9. [91]
    I also find that at least from June 2018, the applicant knew that the issue about payment for berth Z1 was a live one in the proceeding between Paul and the respondent. He also knew of and (at least at one point) was expecting the counterclaim to be served.  The applicant could not have been surprised by the specific allegations against him in the counterclaim. He had a copy of it from July 2018.
  10. [92]
    I am prepared to accept that there is some prejudice to the applicant in the inevitable lessening of accurate recollection of events because of the lapse of time. But I do not consider that in the circumstances of this case, this prejudice can be categorised as significant. He is not being asked out of the blue to recall what happened. He has been given a number of opportunities over the last six or so years to articulate the arrangement he had with the respondent and to gather the relevant documents to support his case. He is clearly able to articulate the case he wishes to run.  He has done so in this application. In these circumstances I am satisfied that the applicant will be able to fairly defend himself against the counterclaim.
  11. [93]
    The respondent has therefore satisfied me that the order for renewal would not result in “significant prejudice” to the applicant. [74]

Conclusion: Is there good reason? 

  1. [94]
    On the above analysis, the four pillars argued by the respondent support there being “good reason” for the counterclaim to be renewed. I find that the combination of factors in this case as analysed above, clearly warrant, as do the overall interests of justice, the order for renewal being maintained in this case.

Orders

  1. [95]
    I therefore order as follows:
    1. (1)
      The respondent’s oral application for a declaration of informal service is dismissed.
    2. (2)
      The applicant’s application to set aside the order for renewal is dismissed.

Costs

  1. [96]
    Costs follow the event although they remain within the discretion of the court.  In the circumstances of this case, my preliminary view is that the appropriate order for costs is that the costs of the application are the respondent’s costs in the proceeding.
  2. [97]
    But I will allow the parties the opportunity to provide written outlines of no more than  two pages if another costs order is sought. These outlines are to be emailed to my associate by 4.00pm Monday 10 May 2021. Otherwise the cost order foreshadowed will be made.

Footnotes

[1]  Ex parte Order for renewal of Sheridan DCJ dated 17 August 2020.

[2] Uniform Civil Procedure Rules 1999 (Qld), r 24. 

[3] Babcock & Brown Pty Ltd & Ors v Arthur Andersen [2010] QSC 287 at [55] per Margaret Wilson J.

[4] Ibid. See also Quinlivan v Konowalous [2019] QSC 285 at [51] per Davis J.

[5] Muirhead v The Uniting Church in Australia Property Trust [1999] QCA 513 (“Muirhead”) per Williams J at [29] (Davies and Pincus JJA agreeing); see also McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [4] (per Jackson J). 

[6]  First affidavit of Heathwood at [83].

[7]  Exhibit JC1 to the Applicant’s first affidavit. 

[8]  Ibid [at 23].

[9]  The agreement was signed by Paul on 1 August 2010 and the respondent on 3 August 2010.

[10]  Affidavit of Ian Dickson Heathwood sworn and filed 25 February 2021 (Court file Document 46) (“first Heathwood affidavit”) at [15].

[11]  First Heathwood affidavit at [27] to [30].

[12]  Applicant’s first affidavit [at 39]. 

[13]  The solicitors acting for the respondent in relation to the development.

[14]  First Heathwood affidavit at [57].

[15]  First Heathwood affidavit at [43].

[16]  Affidavit of Guy Houghton filed 22 February 2021; Affidavit of Bruce Richardson filed 22 February 2021.

[17]  Marked paid on 19 December 2008.

[18]  First affidavit of Heathwood at para 50 and pages 140 to 143 of the exhibits. 

[19]  Mr Heathwood recalled being shown other invoices, but these were not in evidence.

[20]  As set out in paragraph 24 of these Reasons, Mr Heathwood later realised that these figures were incorrect and that the only amount the respondent had received from Paul or the applicant was the $5,000 deposit paid by the applicant on about 5 April 2008. 

[21]  Frist Cardillo affidavit [at 39].

[22]  Applicant’s first affidavit [at 40].

[23]  Paul also seeks the sum of $57,541.96 for loss of rental income from Berth Z1.

[24]  Amended statement of claim [ 2A to 2 C]. With John Cardillo also making a payment of $5,000 on 7 April 2008 directly to the respondent [2A (f)].

[25]  Amended statement of claim [2A e)].

[26]  An amended defence has yet to be filed to the amended statement of claim.

[27]  First affidavit of Heathwood at [65].

[28]  First affidavit of Cardillo [68].

[29]  Ibid.

[30]  There seems to have been some confusion about who was acting for the respondent around this time as both Lander & Rogers and McKays Solicitors contacted Alex McKay and Co. The evidence is that McKays Solicitors acted for the respondent from 19 June 2018 until 7 August 2018 and then Lander & Rogers the solicitors for the respondent’s insurers acted for the respondent from 7 August 2018 until 11 June 2020. From 11 June 2020 onwards Cornwalls (who previously traded under the name McKays Solicitors – Brisbane) have acted for the respondent. Mr Heathwood is a partner of Cornwalls.

[31]  Second Cardillo affidavit at Exhibit JC 11.

[32]  Affidavit of Peter Previtera filed 8 February 2021 at page 4.

[33]  Second Cardillo affidavit at Exhibit JC12.

[34]  Affidavit of Peter Previtera filed 8 February 2021 at page 45.

[35]  Affidavit of Peter Previtera filed 8 February 2021 at page 46.

[36]  First Thomas Affidavit at [5.5].

[37]  First Thomas Affidavit at [5.7], NJT1 at page 18.

[38]  A notice of change of solicitor to this effect was filed on 7 August 2020. 

[39]  Affidavit of Nina Jacqueline Thomas filed 23 February 2021.

[40]  Ibid at page 37.

[41]  T1-24 ll 45.

[42]  T1-31 ll 7 to 14.

[43]  T1-28 ll35-39.

[44]  T1-27 ll 1 to 4.

[45]  T1-31 ll 40 to 45.

[46]  It appears that this fact first came to the knowledge of the respondent’s solicitor’s (Cornwalls) after the order for renewal, upon receipt of the applicant’s affidavit sworn and filed on 8 February 2021 (in support of his application to set aside the order for renewal). See letters dated 25 February 2011 and 11 March 2021 from Cornwalls to the applicant’s solicitor exhibited at JC9 and JC10 to the Second Cardillo affidavit.

[47] Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [4].

[48] AMCI P/L v Corcoal Management P/L and Ors [2013] QSC 50 at [22].

[49] IMB Group Pty Ltd (in liq) v ACCC [2007] 1 QD 148 at [53] to [54] per Keane JA (McMurdo and Cullinane agreeing)

[50]  (2009) 239 CLR 175.

[51]  Muirhead at [13].

[52]  Section 10(6)(b) of the Limitation of Actions Act 1974: Poole v Moody [1945] 1 KB 350, 355; Woodhead v Elbourne [2001] 1 Qd R 220 per White J.

[53]  The principle was discussed by Meagher JA (Beazley P and Emmett JA agreeing) in Gerace v Auzhari Supplies Pty Ltd (in liq) (2014) 87 NSWLR 435 at [70] to [73].

[54] Lewis v Carter [2018] NSWCA 118, 71 and 72.

[55]  Referring to the classic statement of the elements of the tort of deceit stated by Lord Herschell in Derry v Peek (1889) 14 App Cas 337 at 374.

[56] Limitations of Action Act 1974 (Qld) s10 prescribes a 6-year limitation period for any action in tort. The limitation period starts to accrue from the date the cause of action arose.

[57] Limitations of Actions Act 1974 (Qld) (s. 38 (1))

[58]  Outline of argument of the defendant by counterclaim at [106].

[59] Paragon Finance v DB Thakerar & Co [1999] 1 All ER 400 at 418 per Millet LJ (with Pill and May LLJ agreeing); Hutchinson v Equititour Pty Ltd [2011] 2 Qd R 99 at [27] per P Lyons J, Muir and Chesterman JJA agreeing).

[60] Peco Art Inc v Hazlitt Gallery Ltd [198] 3 All ER 193, 199 (Webster LJ).

[61]  Submissions for the defendant [at 25].

[62]  First Heathwood affidavit at [66]-[71].

[63]  First Heathwood affidavit at [16], [17]. [20], [21].

[64]  First Heathwood affidavit at [16].

[65]  This is not a criticism of the applicant’s conduct of the case. The application was listed as one less than 2 hours in applications court. Counsel did their best to limit the issues before me with cross examination of Mr Heathwood being limited to the issue of service.  

[66] Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [90]

[67] Ibid at [88] to [90]

[68] McIntosh & Anor v Maitland & Ors [2016] QSC 203[at 15]. Observing that in Heaven v Road and Rail Wagons Ltd [1965] 2 QB 355 it was considered irrelevant but that it was treated as relevant in other cases.

[69]  Pages 54 to 57, 60 and 65 to 68 of the exhibits of the Thomas affidavit.

[70]  Second Cardillo affidavit at [9] to [12].

[71]  First Cardillo affidavit [69] to [74].

[72]  Set out in paragraph 31 of these Reasons.

[73]  Affidavit of Nina Thomas sworn 16 March 2021.

[74]  Muirhead at [31].

Close

Editorial Notes

  • Published Case Name:

    Cardillo v Moreton Bay Trailer Boat Club Incorporated & Anor

  • Shortened Case Name:

    Cardillo v Moreton Bay Trailer Boat Club Incorporated

  • MNC:

    [2021] QDC 75

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    05 May 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50
3 citations
Jump To
Cite 1 - [2013] QSC 50
Cite 2 - [2013] QSC 50
Cite 3 - [2013] QSC 50
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287
4 citations
Jump To
Cite 1 - [2010] QSC 287
Cite 2 - [2010] QSC 287
Cite 3 - [2010] QSC 287
Cite 4 - [2010] QSC 287
Derry v Peek (1889) 14 App Cas 337
2 citations
Jump To
Cite 1 - (1889) 14 App Cas 337
Cite 2 - (1889) 14 App Cas 337
Egan v Posman [2018] QDC 53
2 citations
Jump To
Cite 1 - [2018] QDC 53
Cite 2 - [2018] QDC 53
Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435
1 citation
Jump To
Cite 1 - (2014) 87 NSWLR 435
Gerace v Auzhari Supplies Pty Ltd (in liq) (2014) 87 NSWLR 43
1 citation
Jump To
Cite 1 - (2014) 87 NSWLR 43
Heaven v Road and Rail Wagons Ltd. (1965) 2 QB 355
2 citations
Jump To
Cite 1 - (1965) 2 QB 355
Cite 2 - (1965) 2 QB 355
High Top Pty Ltd v Kay Sheila Lawrence [2010] QCA 270
2 citations
Jump To
Cite 1 - [2010] QCA 270
Cite 2 - [2010] QCA 270
Hutchinson v Equititour Pty Ltd[2011] 2 Qd R 99; [2010] QCA 104
2 citations
Jump To
Cite 1 - [2011] 2 Qd R 99
Cite 2 - [2011] 2 Qd R 99
Lewis v Carter [2018] NSWCA 118
2 citations
Jump To
Cite 1 - [2018] NSWCA 118
Cite 2 - [2018] NSWCA 118
McIntosh v Maitland [2016] QSC 203
4 citations
Jump To
Cite 1 - [2016] QSC 203
Cite 2 - [2016] QSC 203
Cite 3 - [2016] QSC 203
Cite 4 - [2016] QSC 203
Muirhead v The Uniting Church in Australia Property Trust [1999] QCA 513
5 citations
Jump To
Cite 1 - [1999] QCA 513
Cite 2 - [1999] QCA 513
Cite 3 - [1999] QCA 513
Cite 4 - [1999] QCA 513
Cite 5 - [1999] QCA 513
Paragon Finance plc v D B Thakerar & Co (1999) 1 All ER 400
2 citations
Jump To
Cite 1 - (1999) 1 All ER 400
Cite 2 - (1999) 1 All ER 400
Peco Art Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193
2 citations
Jump To
Cite 1 - [1983] 3 All ER 193
Cite 2 - [1983] 3 All ER 193
Poole v Moody [1945] 1 KB 350
2 citations
Jump To
Cite 1 - [1945] 1 KB 350
Cite 2 - [1945] 1 KB 350
Port Ballidu Pty Ltd v Frews Lawyers[2019] 1 Qd R 276; [2018] QCA 110
2 citations
Jump To
Cite 1 - [2019] 1 Qd R 276
Cite 2 - [2019] 1 Qd R 276
Quinlivan v Konowalous [2019] QSC 285
2 citations
Jump To
Cite 1 - [2019] QSC 285
Cite 2 - [2019] QSC 285
The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission[2007] 1 Qd R 148; [2006] QCA 407
1 citation
Jump To
Cite 1 - [2007] 1 Qd R 148
Tyler v Custom Credit Corp Ltd [2000] QCA 178
2 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Woodhead v Elbourne[2001] 1 Qd R 220; [2000] QSC 42
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 220
Cite 2 - [2001] 1 Qd R 220

Cases Citing

Case NameFull CitationFrequency
Bill Karageozis as liquidator of Green Power Saver Australia Pty Ltd v. Green Power Saver Australia Pty Ltd [2025] QMC 227 citations
Lambert v Webber [2021] QDC 3122 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.