JK International Pty Ltd v International Comtrade & Shipping Ltd
[2005] QSC 26
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- Unreported Judgment
- JK International Pty Ltd v International Comtrade & Shipping Ltd[2005] QSC 26
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JK International Pty Ltd v International Comtrade & Shipping Ltd[2005] QSC 26
JK International Pty Ltd v International Comtrade & Shipping Ltd[2005] QSC 26
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 2 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 December 2004 |
JUDGE: | Moynihan J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – application to join second and third defendant in action – application to make consequential amendments to statement of claim Uniform Civil Procedure Rules 1999 (Qld), r 70(2), 149(b), 157 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 328; Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd & Ors [2003] VSC 291; King & Anor v Milpurrurru & Ors (1996) 136 ALR 327; Northside Developments Pty Ltd v Registrar General (1990) 170 CLR 146. |
COUNSEL: | Mr R G Bain QC for the plaintiff Mr K A Barlow for the defendant |
SOLICITORS: | Raj Lawyers for the plaintiff Scoglio Law for the defendant |
[1] MOYNIHAN J: The plaintiff in this action applies to join Commodity Traders (Fiji) Limited and Willem Johan van Vlymen as second and third defendants in the action and to make consequential amendments to the statement of claim (the proposed statement of claim).
[2] The proposed third defendant (van Vlymen) appeared by counsel to resist the application. The proposed second defendant (Commodity Traders) has not been served and it is necessary for the applicant to have the court otherwise “order in terms” of Uniform Civil Procedure Rules, rule 70(2) before joinder of that proposed defendant.
[3] It is submitted on van Vlymen’s behalf that the proposed statement of claim does not demonstrate any connection with this jurisdiction and is deficient in its pleading of the case sought to be made out against him. The applicant in so far as it concerns him should therefore be dismissed.
[4] The proposed statement of claim pleads that Commodity Traders is a company incorporated in Vanuatu and carried on or continues to carry on business in Australia “by” van Vlymen.
[5] It alleges that the plaintiff carried on business “from premises at Rocklea in Queensland”.
[6] It is further alleged that van Vlymen was a director and agent of each of the present defendant and Commodity Traders in relation to the dealing which gives rise to the action.
[7] The proposed statement of claim further alleges that both the first defendant and the proposed second defendant carried on business “by” van Vlymen in New South Wales of which State he is alleged to be a resident.
[8] The case which the plaintiff seeks to make out is that Commodity Traders was obliged to purchase copra from a Kiribati corporation.
[9] The plaintiff took over those obligations on the basis that the present defendant or Commodity Traders would hold the copra and arrange for its transhipment as pleaded in the proposed statement of claim.
[10] It is then alleged that the present and or commodity traders sold the copra to another corporation in breach of the contract with the plaintiff and caused the copra to be delivered to the purchaser thereby wrongfully converting.
[11] Counsel for van Vlymen made a number of submissions about the proposed statement of claim’s pleading of the case against him.
[12] The reference in the statement of claim to Commodity Traders carrying on business in Australia “by” van Vlymen, was, it was submitted, not supported by the pleading of what van Vlymen did which constituted carrying on business as for the purpose of this case.
[13] These are not facts pleaded (nor is there evidence put forward) that the contract was made in Queensland. None of the obligations were to be carried out in Australia. The contractual breaches and the alleged conversion are said to have occurred overseas.
[14] It is necessary to plead with particularity the transaction which constituted the purported sale pleaded by paragraph 6B and the purported delivery of the copra in paragraph 6C. It may be noted that paragraph 6C alleges that when the vessel on which it is alleged that the copra was being shipped docked in Bangladesh the present defendant and Commodity Traders or one or other of them caused it to be delivered to a third party. The pleading apparently relies on the general allegation that van Vlymen acted in his capacity as director and agent of each of the defendants in relation to the dealings alleged in that.
[15] There are no facts pleaded as to van Vlymen’s involvement in the contractual breaches or the conversion. It is simply asserted that he “acted in his capacity as director and agent for each of the first and second defendants” in respect of the dealing (paragraph 1(f)) and he “authorized or alternatively procured” the alleged conversion.
[16] These submissions are in my view well founded. There is not a statement of material facts in compliance with UCPR 149(1)(b), 150 or 157.
[17] It is submitted for van Vlymen that assuming the current defendant and Commidity Traders converted the copra (or breached the contract) and assuming that van Vlymen was a director and the agent of the company the statement of claim nevertheless does not disclose a cause of action against him.
[18] It is not pleaded that van Vlymen had physical possession or control of the goods so as to render him liable for the conversion and it appears unlikely that he did on the face of the pleading.
[19] The proposed statement of claim pleads in paragraph 12AA that van Vlymen was the “guiding mind” of each of the fist and second defendants and made “the relevant decisions, directions and agreements” constituting the conversion. Again the pleading is deficient in the statement of all material facts relied on to sustain those conclusions.
[20] Generally speaking if a company acting by its officers commits a tort it is liable but officers of a company normally have no separate liability. It must be established that there was a direct involvement in the tort on the part of the officer or director; Idoport Pty Ltd v National Australia Bank Ltd[1] at [13]-[29], [41] Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd & Ors[2] [121], [124] and [153].
[21] Directors normally act collectively as a board; Northside Developments Pty Ltd v Registrar General[3] at 205. There is no specific authority pleaded against van Vlymen and no specific fact pleaded to establish authority or agency relevant to the issues in the case.
[22] The plaintiff relies on King & Anor v Milpurrurru & Ors[4] for the proposition that a director may become personally liable by his close connection with wrongful decisions, actions etc; see 351 and 336. That may be accepted but again the pleading is deficient in pleading the facts giving rise to the “close connection” sustaining the liability sought to be relied on.
[23] The proposed statement of claim is in my view inadequate to sustain the case sought to be made against the proposed defendants. The connection with this jurisdiction is on the face of the pleadings at best tenuous.
[24] It is submitted that the plaintiff has not been able, despite significant endeavours, to serve Commodity Traders and the plaintiff seeks an order that it be excused from the necessity to affect such service. There has been no attempt to obtain an order for substituted service. I am not persuaded on the material as it stands to dispense with service.
[25] It follows that in my view the proposed statement of claim does not found the claim the plaintiff seeks to advance against van Vlymen. Leave to amend should be refused.
[26] I dismiss the application.