Cameron v Cameron[2023] QSC 61

SUPREME COURT OF QUEENSLAND

Summary

1. [1]
   The Cameron family has been in the farming business for decades, operating across several properties in Queensland and New South Wales.  From 1978 until 2009, Keith and Jennifer Cameron operated the business with the help of their sons Simon, Nick, and Ben.^[1]  In 2009, Keith and Jennifer stepped back from the business, leaving the day-to-day farming operations to Simon and Nick; with Ben providing accounting services and financial advice.
2. [2]
   By 2016 (at the latest), the business was struggling to service its debts and the business’s lender, the NAB, was interested in the family’s succession plans.  In June 2019, the family executed a Succession Deed, dividing the business’s properties and debts between the brothers. 
3. [3]
   The relationship between the brothers deteriorated and, by 2021, their business and personal relationships had broken down.  Simon alleged that Ben made misrepresentations to the family about the Succession Deed.  On 17 June 2022, he filed a claim and statement of claim concerning Ben’s alleged misconduct.
4. [4]
   On 26 August 2022, Ben filed not only his defence to Simon’s claim, but also a counterclaim in oppression, which contained accusations about the way in which his brothers had conducted themselves in a feedlot business which they jointly owned.  That business operated on a property known as Dunan.  Dunan had once been one of the Cameron family’s farming properties but, in 2016, it was sold to Ben’s company, “Northern Growers”.  It was not a property dealt with by the 2019 Succession Deed.
5. [5]
   On 30 September 2022, Nick (and his company Bullartoo) filed an application to strike out the counterclaim.
6. [6]
   On 11 October 2022, Ben and Northern Growers filed an application for leave to join Northern Growers as the second plaintiff by counterclaim in the Succession Deed proceeding – to “regularise” their pleading.
7. [7]
   On 20 October 2022, Keith and Jennifer filed an application for orders that their costs of the application filed by Nick and Bullartoo were to be paid by Ben and Northern Growers.  On 30 November 2022, Keith and Jennifer filed an amended application seeking orders for the striking out of the counterclaim or the exclusion from it of paragraphs 2 to 59, and orders as to their costs. 
8. [8]
   To adopt an expression used by one of the barristers – the interlocutory hearing of the applications was something of a “lawyers’ picnic”.  I was required to read almost 500 pages of affidavit material and 60-plus pages of dense, written submissions.  I was provided with scores of authorities. Oral submissions occupied more than a whole court day (we finished at about 5 pm). 
9. [9]
   My other commitments meant that I was not able to begin to consider this matter until recently.  I was disappointed then to read that the sensible resolution proposed by Simon’s lawyers prior to the hearing was not embraced by all parties (or tweaked as necessary, then embraced); and that there has been the need for a hearing which involved many, many hours of lawyer, court and judge time.
10. [10]
    What was very clear from the correspondence was that, since at least the middle of 2021, the parties’ goal has been to, in effect, re-negotiate the distribution between the brothers of the pastoral business’ properties and debts as proposed by the Succession Deed, to allow the brothers to go their own separate ways quickly, with what feels to each of them like a fair and equivalent share of the properties debts.  Additionally, the brothers need to sort out what should become of the feedlot business, which is functionally separate from the pastoral business and not something their parents, or the pastoral business, has any interest in.
11. [11]
    It seems obvious to me that the “fight” really has been whether Ben ought to be able to leverage, or attempt to leverage, his oppression arguments in any re-negotiation of the Succession Deed.  Because of the hostility and mistrust between the brothers, the reality is that the fastest way to allow the brothers to separate is to have both matters mediated together.  When I say “together”, I do not mean that the issues need to necessarily be dealt with “in the same room at the same time”, in effect.  A skilled mediator will be able to determine the order in which the disputes between the parties (which extend well beyond the disputes that are the subject of claims in this Court) should be dealt with, who ought to be involved and when during the various stages of what will undoubtedly be a relatively complex mediation. 
12. [12]
    Because the parties’ goals were plain to me, I have not engaged on every argument made by every party in this case.  I have focused on the arguments which bore upon the real issues to deliver these reasons as soon as I possibly could.  I did, of course, read and consider the written submissions of every party, and the oral submissions of every party.  I noted the broad consistency between the submissions made by Nick and those made by his parents.  I grant Keith and Jennifer leave to take “a step” in the proceedings by being heard in this matter, notwithstanding that they have not yet filed a defence to the counterclaim.  I also grant Bullartoo leave to proceed with its application. 
13. [13]
    The other formal orders I wish to make are those which will –

    1. (a)
       separate the oppression claim from the Succession Deed claim – either by refusing Ben’s application or by striking out the counterclaim in oppression.
    2. (b)
       ensure that the oppression claim involves only relevant parties.  I consider Beef Chain a necessary party to the oppression claim because the claim seeks Nick’s removal as a director of that company.  (I will say nothing more about Beef Chain in my reasons.) 
    3. (c)
       ensure that the oppression claim pleads only material facts.
14. [14]
    If required, I will ensure that any time “lost” by requiring Northern Growers to bring its oppression claim as a separate claim is minimised, including by making orders which would avoid the necessity of the oppression claim being brought by way of originating application; and an order that the proceedings be managed together.  Also, if the parties wish me to, I will make orders for the swift progression of the oppression proceeding, bearing in mind the parties’ desire to get to mediation quickly. 
15. [15]
    Further, I consider the counterclaim for a declaration to have no utility.  Even if Simon were to fail in his claim, a declaration is not necessary for the Court to convey its determination that his claim for relief has been dismissed.  It is a narrow claim about one aspect of the Succession Deed and a Court need do no more than dismiss it.  Having said that though, I observe that all parties are on notice that, at the conclusion of the hearing of Simon’s claim, Ben may seek a declaration about the valid and binding nature of the Succession Deed.  At that point in time (if it is ever reached) arguments may be made about its utility. 
16. [16]
    With respect to the complaints about the narrative style of pleading adopted in the defence and counterclaim, in my view, pleading in that way is not objectionable per se but any “Overview” or narrative must only contain the material facts upon which the pleader relies and not, for example, evidence or other irrelevant statements or observations. 
17. [17]
    I direct the parties to consult together and prepare draft orders and directions which accord with the above. 
18. [18]
    I will hear the parties as to costs.
19. [19]
    My reasons follow.

Background and chronology revealed by affidavit evidence

20. [20]
    The eight affidavits read in these applications provided information about the background to the family’s disputes and exhibited the correspondence between the parties and their lawyers in the lead up to the making of the claims and counterclaims, and beyond.  The following information is drawn from the affidavits.^[2]  It was necessary to consider the history of the disputes in detail to evaluate the argument made by Ben that they were sufficiently connected as to warrant the filing of the oppression counterclaim in the Succession Deed proceedings.  I have discussed the content of the parties’ correspondence in some detail, in anticipation of future arguments about the costs of these applications. 
21. [21]
    The current patriarch and matriarch of the Cameron family are Keith and Jennifer Cameron.  Simon, Ben, and Nick are their sons.  Keith has required full-time care since 2017.  Jennifer is his carer.  She is in her early eighties.
22. [22]
    Jennifer and Keith purchased Keith’s parents’ company, “Ardno Pastoral”, in 1978.  Ardno Pastoral operates in Queensland and New South Wales.  Historically, its operations have been conducted on the following properties –

Oaklea (Qld)

Adrno (Qld)

Dunan (Qld)

Tralee (NSW)

Tooramanda (NSW)

Colane (NSW)

23. [23]
    Since 1992, Simon has been involved in the day-to-day management and operations of Ardno Pastoral.  Since 1997, Nick has been involved in the day-to-day management and operations of Ardno Pastoral.  Ben currently works for Bentleys, a firm of business advisors and accountants.  He is the accountant and advisor for Ardno Pastoral but is not involved hands-on in the farming business. 
24. [24]
    Keith and Jennifer stepped away from the business in about 2009. 
25. [25]
    In April 2009, Keith and Jennifer executed their most recent wills.  The wills each provided for their property to go first to the surviving spouse and then to their three sons as follows –

    1. (a)
       Ardno to Nick – conditional upon his assuming certain liabilities;
    2. (b)
       Oakey, Dunan, “the Buderim property” and interest in the superannuation fund to Ben – conditional upon his assuming certain liabilities; and
    3. (c)
       Shares in the entities which owned Tralee, Tooramanda and Colane to Simon – conditional upon his assuming certain liabilities.
26. [26]
    The business fell into financial difficulties from about 2013.  In about 2015, Dunan was advertised for sale.  In 2016, Keith suffered a stroke. 
27. [27]
    After about 12 months on the market, the farming business sold Dunan to Ben’s company, Northern Growers, in 2016, thereby enabling debt owed by Keith and Jennifer to be repaid.  Ben paid market value for the property, borrowing funds to do so, on the basis that he would build a feedlot on part of Dunan, which would be leased to a company owned and controlled by the three brothers.  The feedlot was intended to fortify the family’s main asset, Ardno Pastoral, against failing wheat yields caused by lower rainfall.
28. [28]
    Accordingly, Simon, Ben and Nick established a feedlot on Dunan, conducted by a company known as “Roma Feedlot and Spelling Yards” (“Roma Feedlot”) and its wholly owned subsidiary “Beef Chain”.  Simon, Nick, and Ben owned Roma Feedlot through their companies “Cameron Farming” (Simon); “Bullartoo” (Nick); and Northern Growers (Ben). 
29. [29]
    In 2019, the family was required to consider succession planning.  The farming business had sustained losses, and additional losses were foreshadowed, but the bank would not lend further on the security of Ardno and Oaklea (which were security for the business’s borrowings) with the family’s assets structured as they were; nor would the bank lend to Keith and Jennifer, because of their ages.
30. [30]
    In June 2019, Keith, Jennifer, Ben, Nick, Simon, Ardno Farming and Cameron Property Investments entered into a Succession Deed.^[3]  The “Background” to the deed included the following statement of its purpose:

This deed is designed to effect a fair and equitable transfer of Keith and Jennifer’s business interests between Ben, Nick and Simon, and support the future separation of those businesses.

31. [31]
    In the deed itself, the parties acknowledged that the goal was to facilitate, inter alia, the future split of the family business, under which (speaking very simply):

    1. (a)
       Ardno was to become Nick’s property;
    2. (b)
       Oaklea was to become Ben’s property;
    3. (c)
       Simon was to obtain the ownership and control of the properties Tralee and Tooramanda;
    4. (d)
       Ben was to obtain the ownership and control of Colane;

and

5. (e)
   The debt of the family business was to be apportioned between Nick, Ben and Simon – taking into account the differences in the value of the land which each of them received.

32. [32]
    Until “Final Separation”,^[4] each of Nick, Ben and Simon agreed under the deed that the family business assets they owned or received would be used as security for the benefit of the family business overall.
33. [33]
    By the time the Succession Deed was signed, Ardno had already been transferred to Nick, and Oaklea had already been transferred to Ben.
34. [34]
    Meanwhile, tension was building between the brothers.  On 14 July 2021, Ben called a shareholder meeting to discuss the future of Roma Feedlot and Beef Chain.  The agenda included –

1. 1[The] [u]ntenable position of the current directors affecting the operation of the feedlot companies
2. 2Ben’s share sale/purchase offer

35. [35]
    I could find no evidence of an actual meeting of the brothers, but they embarked on correspondence about issues to do with the feedlot business and the Succession Deed.
36. [36]
    Simon and Nick asked Ben to calculate the “break up amounts” under the Succession Deed.  On 17 July 2021, Ben wrote to them with those amounts and noted that they had agreed to bring forward the Final Separation date.
37. [37]
    On 19 July 2021, Simon put a proposal to Ben on behalf of himself and Nick.  Simon suggested it was “very simple” and would involve Simon and Nick walking away from the Roma Feedlot.  Ben would get “Oaklea” and $500,000 in debt. 
38. [38]
    Ben thanked Simon for the proposal but said that the Succession Deed had to be followed.  Simon replied to say that the Succession Deed was “broken” and that he and Nick were proposing something new which would allow for a very easy separation in a few weeks.  Ben told Simon that he left Ben with no choice but to engage a lawyer to protect his rights under the Succession Deed.  He said his brothers and parents would need their own independent legal advisors.
39. [39]
    On the same date, Jennifer sent a text message to her sons encouraging them to reach a solution which did not involve lawyers or courts, and which saw the brothers go their separate ways.  Ben replied the next day (22 July 2021), stating that he would not accept or support “any early separation date as outlined in the Deed.  The Deed comes to an end in 2025 and works through a breakup mechanism at that time which is what we all signed up to”. 
40. [40]
    Ben gave notice that a general meeting of Roma Feedlot was to be held.  Its special business included the removal of Nick as a director of the company and the appointment of Simon as a director of the company.
41. [41]
    Nick engaged lawyers – Carter Newell.  On 17 August 2021, they wrote to Ben noting, among other things, that there were disputes relating to the separation of the family business and the conduct of Roma Feedlot.  Their letter discussed the subject matter of the disputes about Roma Feedlot.  They informed Ben that Nick did not believe there to be any need to disturb “the status quo” of the directorships of Roma Feedlot.  They added that there were concerns regarding the circumstances in which the Succession Deed was prepared, entered into, and “purportedly witnessed” and reserved their clients’ rights regarding those matters.
42. [42]
    On 18 August 2021, at the general meeting referred to above, neither resolution about the directors passed.  Simon and Nick voted against Ben.  Later that day, Ben sent to Simon and Nick an offer to purchase their shares in Roma Feedlot.
43. [43]
    On 23 August 2021, Ben retained Bartley Cohen to act for him in disputes concerning the feedlot operations by Roma Feedlot and the Succession Deed.
44. [44]
    On 24 August 2021, Carter Newell (Nick) wrote to Bartley Cohen (Ben) repeating requests previously made of Ben for documents.
45. [45]
    Simon wrote to Ben and indicated that he wished to accept the offer to purchase his shares in Roma Feedlot “as soon as possible”.  He added that he thought the “main item” in the “family succession” that had to be sorted out was the transfer of Colane.  He suggested, in effect, that it go from Ben to Simon for $3,000,000.
46. [46]
    On 26 August 2021, Carter Newell (Nick) wrote to Bartley Cohen (Ben) noting that Ben’s offer to purchase their client’s shares in Roma Feedlot expired on the Tuesday of the following week.  They repeated a request for certain documents.
47. [47]
    On 27 August 2021, Bartley Cohen (Ben) wrote to Carter Newell (Nick) and Simon about the need for additional shareholder funding for the feedlot business.
48. [48]
    On 30 August 2021, Bartley Cohen wrote to Carter Newell attaching documents previously sought. 
49. [49]
    On 31 August 2021, Bartley Cohen wrote to Nick and Carter Newell about shareholder funding in the amount of $400,000 because Roma Feedlot was reaching the limit of its overdraft facility.^[5]  Having received no reply, Bartley Cohen followed up again on 3 September 2021. 
50. [50]
    On 7 September 2021, Carter Newell (Nick) wrote to Bartley Cohen (Ben).  They asserted that Ben had taken steps to shut Nick out of any management role in the feedlot operations.  They acknowledged receipt of Ben’s offer to purchase his brothers’ interests in Roma Feedlot (conveyed by way of a share sale deed).  They said they were unable to assess the offer because documents requested from Ben had not been provided.  They repeated their request for those documents.  They suggested that the request for the capital injection might not be genuine but rather an attempt to put pressure on Nick to accept Ben’s offer.
51. [51]
    On 13 September 2021, Bartley Cohen responded to Carter Newell’s letters dated 21 August and 7 September.  Among other matters, the response dealt with the purchase of Dunan, the establishment of Roma Feedlot, and the need for more money to fund the business.  It rejected the suggestion that Ben had taken steps to shut Nick out of management; and complained about Nick’s communication.  It rejected the suggestion that the request for funding was not genuine.  It provided an explanation for Roma Feedlot’s recent poor financial performance, which included assertions that Beef Chain (via Nick) paid too much for cattle and hay; and Simon paid too much for cotton seed. 
52. [52]
    On 22 September 2021, Cooper Grace Ward (“CGW”) informed Bartley Cohen by letter that they were acting for Simon.  Among other things, they asserted that Ben had not acted properly in proposing the Succession Deed: it had been drafted on his instructions; other family members were not advised to get legal advice; and their signatures were not actually witnessed by the witness purporting to have witnessed them, who was, apparently, “a secretary at Bens office”.  CGW asserted that the Succession Deed resulted in an inequitable distribution of assets, at odds with: Keith and Jennifer’s wills; the stated purpose of the deed and Simon’s understanding of the effect of the deed.  Simon was particularly concerned with the “Colane Transfer Plan”.  CGW asserted that Ben’s conduct gave rise to claims in misrepresentation; unconscionable conduct; breaches of fiduciary duty; statutory misleading and deceptive conduct; and an argument that the Succession Deed had not been properly executed and could not therefore take effect as a deed.  CGW reserved Simon’s rights to pursue relief including by way of an order setting aside the Settlement Deed; damages; and compensation.  The letter concluded with an offer to mediate in the following terms, offering Ben 7 days to indicate whether he would be agreeable to such a mediation:

Despite our client’s clear legal rights … our client also considers that it is in the best interests of all parties involved (particularly, Keith and Jennifer) for this matter to be resolved without protracted litigation.

Accordingly, in the interests of achieving a resolution of these matters in a manner that is acceptable to all parties, our client proposes that the family attend a mediation … to determine whether an acceptable solution to the current dispute can be reached with provides for the equitable distribution of the family properties along with suitable debt refinancing arrangements for [Ardno Pastoral].

53. [53]
    On 29 September 2021, Bartley Cohen replied.  On Ben’s behalf, they refuted the allegations made by CGW and provided a different account of the circumstances leading to the drafting and execution of the Succession Deed.  As to mediation, they agreed that it should occur as soon as possible.  If Simon were to maintain that the Succession Deed was not binding, or ought to be set aside, then it would be necessary to include their parents in the mediation (with separate representation).  If fraud allegations were maintained, they required particulars before the mediation, as well as the factual basis for the damages claimed. 
54. [54]
    On 12 October 2021, CGW (Simon) responded in argumentative terms to the letter from Bartley Cohen – maintaining their client’s allegations.  In relation to the request for additional shareholder funds, they requested certain documents.
55. [55]
    On 15 October 2021, Bartley Cohen replied to CGW in argumentative terms – maintaining their client’s position in relation to his brother’s asserted claims.  Bartley Cohen informed CGW that Ben would not mediate in the face of the allegations of fraud.  They said, “If your client is serious about the allegations of fraud he makes and the relief he says he wants, then he will have to commence proceedings against all the parties to the Succession Deed and the bank which holds the registered mortgages”. 
56. [56]
    On 19 October 2021 – in response to a without prejudice letter from CGW – Bartley Cohen wrote to CGW and said that their client (Ben) would not mediate under any circumstances unless the allegations of fraud were withdrawn expressly and unequivocally. 
57. [57]
    On 9 December 2021, Bartley Cohen wrote to CGW (Simon) and Carter Newell (Nick), enclosing documents and asking for additional shareholders contributions to Roma Feedlot. 
58. [58]
    On 17 December 2021, Carter Newell wrote to Bartley Cohen observing that the amount requested from shareholders increased (in so far as their client was concerned) from $120,000 (on 31 August 2021), to $185,250 (on 3 September 2021) to $239,100 (on 9 December 2021).  Carter Newell requested further information from Ben including how and when he expected the operation to return to a profitable position, and the terms upon which the shareholder loans would be repaid.
59. [59]
    17 June 2022: Simon filed his claim and statement of claim.  He claimed the following –

1. 1Rescission of the transfer of the shares in [Cameron Property Investments as trustee for Cameron Property No 2 Trust] from [Keith and Jennifer] to [Ben].
2. 2Alternatively, damages for deceit …
3. 3Alternatively, an order pursuant to section 243 of the Australian Consumer Law varying the “Succession Deed” such that references at clauses 2(a)(iii)(d) and 4(b) to the transfer of shares in [Cameron Property Investments as trustee for Cameron Property No 2 Trust] to [Ben] be struck through and that [Ben] reconvey the shares he holds in [Cameron Property Investments as trustee for Cameron Property No 2 Trust] to [Keith and Jennifer].
4. 4Alternatively, damages pursuant to section 236 of the Australian Consumer Law …
5. 5Interest …
6. 6Costs.

60. [60]
    The defendants to the claim are the other parties to the Succession Deed: Ben, Nicholas, Keith, Jennifer, Ardno Farming (as trustee for Cameron Property Trust) and Cameron Property Investments (as trustee for Cameron Property No 2 Trust).
61. [61]
    The statement of claim recites the role and status of the parties; the family’s assets and businesses; and the role of each brother in those assets and businesses.  At paragraph 10, it refers to the sale of Dunan:

On or about 24 March 2016, Northern Growers …a company controlled by Ben, purchased from Ardno Farming the property known as “Dunan”, which had previously formed part of the Cameron Family Business.

62. [62]
    The statement of claim recites the details of Keith and Jennifer’s wills and discusses the position, with respect to the farming business and its assets, if there had been no Succession Deed.  At paragraph 26, Simon asserts that under the wills, he would have obtained either ownership or control of Colane.  It asserts that Ben made certain statements about the need for a succession arrangement including in a Discussion Paper which he had prepared.  In paragraph 39, the statement of claim pleads the “10 February 2019 Succession Plan”, which was sent by Ben under cover of an email of that same date.  There is a reference in the plan to the transfer of the shares in Colane’s trustee to Ben at 4(d) which stated –

CPT#2 owns Colane.  Cameron Property Investments Pty Ltd is the trustee and the shares are currently owned by KM and JR only.  It has been agreed to transfer these shares to Ben, so that he controls CPT#2.  Simon, Nick and Ben would remain directors of Cameron Property Investments Pty Ltd and “Colane” would be used by [Ardno Pastoral] to conduct its business activities just as it had historically.  In return [Adrno Pastoral] would pay CPT#2’s interest on its bank debt.

63. [63]
    Paragraph 40 of the statement of claim asserts that neither the email nor the succession plan of 10 February 2019 stated "in a manner reasonably apparent to Simon, Nick, Keith or Jennifer that the proposed agreement would see Ben become the beneficial owner of Colane.  Rather, it referred to Ben controlling the shares in CPI such that he would control that company, but that Colane would continue to be used in the Cameron Family Business in the same way it had been used historically – which had been by Simon”.  It asserts that the 10 February 2019 email and succession plan conveyed that Colane remained owed by the CP2 Trust, by its trustee, CPI.  According to paragraph 8 of the statement of claim, Colane is worth $8,950,000.
64. [64]
    The statement of claim continued with assertions about other representations and the drafting, signing and effect of the Succession Deed.  It asserts inter alia that Simon believed that it was his parents’ intention that he would own Colane and complained that it had not been explained to him “directly and unambiguously” that “Ben’s proposed succession planning would involve Ben potentially or actually becoming the beneficial owner of Colane”.  The statement of claim pleaded mistake by Simon, deceit by Ben, misleading or deceptive conduct by Ben and unconscionable conduct by Ben. 
65. [65]
    When serving the claim and statement of claim on Bartley Cohen (Ben), CGW (Simon) said,

In the interests of resolving these proceedings as soon as possible our client is agreeable to attending a mediation with all parties, prior to requiring a defence to be filed.  If your client is interested in participating in a mediation at this early stage, please advise us as soon as possible.

66. [66]
    On 14 July 2022, Carter Newell (Nick) wrote to CGW and sought confirmation that their client was not required to plead to the claim/statement of claim, because it did not seek any relief against him.
67. [67]
    On 18 July 2022, Bartley Cohen wrote to CGW explaining that their defence was due that day but that they required further time for certain reasons including the provision of the “Talbot Sayer” file.  Talbot Sayer prepared the Succession Deed.
68. [68]
    On 19 July 2022, Nicholsons Solicitors for Keith and Jennifer wrote to CGW indicating that they would require at least two more weeks to file their defence.
69. [69]
    On 25 July 2022, CGW wrote to Bartley Cohen asserting that the Talbot Sayer file was not necessary for the preparation of Ben’s defence but, in effect, allowing Ben until 29 July 2022 to file and serve it.  If not filed by that date, CGW reserved its client’s right to apply for summary judgment.
70. [70]
    From 25 July 2022 until 2 August 2022, there was to-ing and fro-ing between the law firms about the date by which the defence had to the filed.  On 3 August 2022, CGW agreed to an extension until 8 August 2022 for the filing of Ben’s defence.  On 8 August 2022, Bartley Cohen sought a further extension due to “IT and data access problems”. 
71. [71]
    On 19 August 2022, Carter Newell wrote to Bartley Cohen, noting that they had received no reply to their letter of 17 December 2021.  They complained again about the lack of information provided and made a demand for certain information, to which they asserted Nick was entitled, as a director of Roma Feedlot.
72. [72]
    On 23 August 2022, Bartley Cohen advised CGW (after prompting) that their defence was “with counsel to be settled” and that they expected it to be filed by Thursday (25 August 2022). 
73. [73]
    On 26 August 2022, Ben filed his notice of intention to defend, his defence and a counterclaim, which added Northern Growers as the second plaintiff by counterclaim, and four defendants by counterclaim: Roma Feedlot, Buttartoo, Cameron Farming and Beef Chain.  A copy of the defence and counterclaim were served that same day. 
74. [74]
    To summarise – the parties to the defence and counterclaim are as follows:

75. [75]
    The covering letter to the lawyers for the other parties included the following –

The counterclaim pleads claims against the plaintiff, the second to sixth defendants, Bullartoo Pty Ltd, Cameron Farming Pty Ltd, Roma Feedlot & Spelling Yards Pty Ltd and Beef Chain Pty Ltd.

…

As with the primary proceeding, we propose that the ninth and tenth defendants by counterclaim do not actively participate in the proceeding by counterclaim and simply abide the order of the court.  We propose the course also be adopted in relation to the third and fourth defendants by counterclaim.  Do your clients agree?

76. [76]
    The defence began with the heading “Overview of the first defendant’s case”.  Under that heading were paragraphs A to LL.  The overview was followed by the response to the statement of claim, which drew upon paragraphs A to LL.  For example, in paragraph 58, it stated: “As to paragraph 58 of the statement of claim, the first defendant: (a) Denies the allegation in subparagraph (a) by reason of the matters pleaded in subparagraphs C(g) and N(a) above”.
77. [77]
    The response to the statement of claim was followed by the counterclaim, which relied upon “the matters pleaded in paragraphs G to M” of the overview. 
78. [78]
    The overview canvassed the following matters –

79. [79]
    The counterclaim itself concerned the feedlot business and asserted that Nick and Simon engaged in oppressive conduct towards Ben in the context of the feedlot business. 
80. [80]
    The counterclaim did not refer at all to the Succession Deed until paragraph 60.  Indeed, the first act of oppression alleged in it was Nick’s ceasing all direct communication with Ben around June 2020.  It is a straightforward oppression claim setting out the losses said to have been the product of oppressive conduct mostly by Nick and the inability of the brothers to work together in the business.
81. [81]
    The formal oppression claim was expressed in paragraphs 57 – 59 of the counterclaim.
82. [82]
    Paragraph 60 “Declaration” then says:

By reason of the matters pleaded in P to LL and 58 – 94 of the defence, Ben is entitled to a declaration that the Succession Deed is binding and enforceable against each of the seventh defendant by counterclaim (Keith), the eighth defendant by counterclaim (Jennifer), Simon, Nick, the ninth defendant by counterclaim (Ardno Farming in its own capacity and as trustee of the CP1 trust) and the tenth defendant by counterclaim (CPI in its own capacity and as trustee of the CP2 trust) in accordance with its terms.

83. [83]
    The following relief was claimed in the counterclaim:

    1. (a)
       A declaration that the affairs of Roman Feedlot are being conducted in a manner which is oppressive to or unfairly discriminatory against Northern Growers.
    2. (b)
       That Nick Cameron be removed from office as a director of Roma Feedlot and Beef Chain.
    3. (c)
       That Northern Growers purchase all shares held by Bullartoo and Cameron Farming in the capital of Roma Feedlot …
    4. (d)
       A declaration that the Succession Deed I binding and enforceable in accordance with its terms.
    5. (e)
       Such further or other orders as the Court considers just.
    6. (f)
       Interest.
    7. (g)
       Costs.
84. [84]
    On 8 September 2022, Carter Newell (Nick) wrote to Bartley Cohen (Ben) indicating that they had concerns about the defence and counterclaim and seeking confirmation that Ben and Northern Growers did not require Nick and Bullartoo to plead at that time.
85. [85]
    On 9 September 2022, Bartley Cohen (Ben) sent an email to Carter Newell (Nick) stating that Nick and Bullartoo were required to plead.  They followed up with an email on 13 September 2022, asserting that the answer to the counterclaim was due the previous day,^[6] and asked whether Nick and Bullartoo were intending to plead to the counterclaim.  On 14 September 2022, Carter Newell repeated that they had concerns about the counterclaim and irregularities in its commencement and said they would write to Bartley Cohen the next day about those matters.
86. [86]
    On 16 September 2022, Carter Newell (Nick) sent a “rule 444 letter” to Bartley Cohen (Ben), contending that the counterclaim was liable to be set aside.  The letter set out some, but not all, of their complaints about the pleading.  They anticipated that the solicitors for the other parties would raise further issues.  Their primary complaints were that –

    1. (a)
       The counterclaim was not compliant with the UCPR and liable to be set aside or struck out; and
    2. (b)
       The counterclaim was unnecessary and/or had a tendency to prejudice or delay the fair trial of the proceedings; and
    3. (c)
       The pleading did not comply with Parts 2 and 5 of Chapter 6 of the UCPR.
87. [87]
    On 23 September 2022, Bartley Cohen (Ben) sent their “rule 445 reply”.  It stated, among other things, that to the extent that there was a complaint that the counterclaim did not itself set out the material facts relied upon by instead cross-referred to the defence, that was “orthodox”. 
88. [88]
    On 29 September 2022, Simon’s claim (BS 7095/22) was allocated to the Wills and Estates List for management. 
89. [89]
    On 29 September 2022, there was correspondence between the parties as to whether parties other than Nick could rely on Nick’s complaints to extend the time required for their reply and answer (that is, until after the complaints were resolved).
90. [90]
    On 30 September 2022, Carter Newell (Nick) filed and served his notice of intention to defend and defence to the statement of claim; a notice of appearance for Bullartoo; and an application to strike out the counterclaim. 
91. [91]
    On 4 October 2022, CGW (Simon) told Carter Newell that their client intended to wait until the hearing of the application to strike out before preparing their client’s reply and answer. 
92. [92]
    On 10 October 2022, Bartley Cohen (Ben) wrote to Carter Newell (Nick), CGW (Simon) and Nicholsons (Keith and Jennifer), referring to Nick’s application to strike out the counterclaim and their invitation to the parties (made in their rule 445 letter), made before Nick’s application to strike out was filed, to “agree to orders regularising Northern Growers’ status as a plaintiff by counterclaim”.  They said (my emphasis) –

Our clients accept that an application to join Northern Growers ought to have been made prior to our filing our client’s defence and counterclaim.  At the time our clients were operating under pressure from threats of default judgment made by Simon.  Such pressure was not applied to the other parties, including Nick Cameron (who has only recently filed a defence when that may have stood in the way of the Nick Cameron defendants bringing the application).  Such orders can be made nunc pro tunc: see Whynot Assets Pty Ltd v Trinity Green Developments Pty Ltd [2012] QSC 205 at [27].

93. [93]
    They enclosed an application for such an order, and an amended counterclaim, which they indicated they would file once the position concerning their application was resolved.  They did not accept that they had to comply with Schedule 1A of the UCPR – the Corporations Rules.  They argued that the relevant proceeding was one commenced by Simon, not one commenced under the Corporations Act 2001 (Cth) or the Australian Securities and Investments Commission Act 2001(Cth).  Also, the rules were silent about the bringing of a counterclaim within an existing proceeding.  They continued, “Under rule 1.3(2)(a) of the Corporations Rules that mechanism is left to the rules concerning counterclaims in Chapter 6, Part 5, Division 2 of the UCPR.  Relevantly, rule 179 states that a counterclaim must be in the approved form and must be included in the same document and served at the same time as the defence.  Our client’s have complied with that rule”.
94. [94]
    In justifying the joinder of the first to fourth defendants by counterclaim, Bartley Cohen asserted that the background to the proceedings showed that the disputes the subject of the counterclaim and the claim traversed related issues about the management and disintegration of the businesses controlled by Simon, Nick, and Ben.  They contended that the first to fourth defendants had been joined “so that the court can properly adjudicate on all of the issues in dispute between Nick, Simon and Ben and their associated business interests”. 
95. [95]
    Bartley Cohen asserted that Nick’s application lacked any practical utility.  Even if the complaints were accepted, the only consequence was unnecessary costs.  If the counterclaim, or any part of it, were set aside or struck out, or parties were removed from it, then fresh proceedings could be brought to deal with the subject matter of it.  They expressed concern that the application was “nothing more than an attempt by the Nick Cameron defendants to delay the time for them to defend [the] counterclaim”, contrary to rule 5. 
96. [96]
    The balance of the letter addressed other concerns raised about the defence and counterclaim; and required the parties to plead responsively to all material allegations of fact made in the defence and counterclaim including those made in paragraphs A to LL of the defence.  They added, “Our client will not mediate or make disclosure until each of the parties have pleaded to all relevant pleadings and pleadings have closed”.
97. [97]
    On 10 October 2022, Nicholsons (Keith and Jennifer) wrote to Bartley Cohen and informed them that their clients supported Nick’s application and would be filing material in relation to it.  With respect to the counterclaim, they stated that their client had not been involved in the feedlot business at all and that the issues in the counterclaim had nothing to do with them.  Nor did any of the allegations in the counterclaim – apart from those in 59A and 60 – relate to them.  They could not understand why Bartley Cohen pressed for their answer to the counterclaim.  They had no desire to incur costs in, or be part of, a proceeding which did not concern them.  They did not accept that the issues raised in the counterclaim and Simon’ s claim were part of the same broad family dispute.  There was no overlap.  Dunan was not one of the properties dealt with by the Succession Deed.
98. [98]
    With respect to the declaratory relief, their view was that the declaration was sought in an attempt to establish a sufficient nexus between the primary claim and the counterclaim so that they might be litigated together.  The declaration was otherwise unnecessary.  They could not understand how the just and expeditious resolution of the real issues in dispute between the brothers was for their parents to be parties to the counterclaim and incur significant costs in relation to it.
99. [99]
    Their position was that the counterclaim ought to be set aside, struck out or excluded.
100. [100]
     The applications were listed for hearing on 30 November 2022.^[7]
101. [101]
     On 25 October 2022, CGW wrote to Bartley Cohen and stated that their client, Simon, supported Nick’s application.  But, regardless of the outcome, they would press for orders for completion of the pleadings and for a mediation to be held at the earliest possible date.
102. [102]
     On 26 October 2022, Bartley Cohen (Ben) wrote to Nicholsons – noting that Keith and Jennifer had filed an application (and supporting material) for leave to take a step and for costs.  They observed that the application did not seek any substantive relief nor did the affidavit in support of it have relevance to it.  They asked inter alia what steps Keith and Jennifer wished to take if leave were granted.
103. [103]
     On 27 October 2022, Nicholsons replied.  The “step” Keith and Jennifer wished to take was to make submissions in support of Nick’s application that Ben’s counterclaim be set aside or struck out.  They invited Ben to discontinue his counterclaim as against Keith and Jennifer, repeating their position that the declaration sought served no practical purpose. 
104. [104]
     On 28 October 2022, Bartley Cohen wrote to Carter Newell (Nick), CGW (Simon) and Nicholsons (Keith and Jennifer).  They agreed with the sentiment that the proceedings ought to be progressed quickly.  They repeated their position that Nick’s application only served to increase costs and delays and suggested that, at the least, the Succession Deed claim and the oppression claim could be managed together (if not consolidated). 
105. [105]
     They proposed certain amendments and orders which were said to “cure the procedural irregularity … and technical issues raised by Carter Newell in respect of the counterclaim”.  The proposed orders did not anticipate the separation of the claims prior to mediation.  Rather, they suggested that the counterclaim could be later separated from the primary proceedings, if mediation failed, pursuant to rule 182 of the UCPR. 
106. [106]
     On 10 November 2022, Carter Newell referred back to their rule 444 letter and their request that Ben file and serve an amended defence, striking through the entirety of the counterclaim and “specifically and separately” pleading the material facts in his counterclaim.  They set out the history of the correspondence between the parties, including Ben and Northern Growers’ acknowledgement that they ought to have applied to join Northern Growers before filing the defence and counterclaim.
107. [107]
     They referred to Ben and Northern Growers statement that they would file an amended counterclaim (to clarify the prayer for relief and the conduct the subject of Nick’s complaints) after the position concerning the application was resolved, rather than beforehand.  At 8, Carter Newell wrote –

… [O]ur clients consider that the cause of delays in respect of this proceeding is a consequence of your client’s refusal to acknowledge and address the substance of our client’s complaints, and the extent to which they appear prepared to go to defend their position (including the filing of voluminous affidavit material) despite repeatedly asserting that they are willing and able to commence separate proceedings if necessary.

108. [108]
     Carter Newell elaborated upon the basis of their complaints about the counterclaim, making the point that their complaints were not resolved by Ben obtaining leave to join a party.  The issue was one of jurisdiction, in that the statutory basis for the filing of counterclaims was not met.  They invited Ben and Northern Growers to discontinue their oppression claim and maintained the complaint about the way in which the declaration counterclaim was pleaded. 
109. [109]
     On 21 November 2022, CGW wrote to Bartley Cohen, noting comments made at a review of the matter on 5 November 2022, on Ben’s behalf, to the effect that the parties should seek an efficient way forward.  They proposed that the proceedings be split in two, by consent, with:

     1. (a)
        orders regularising the parties and programming pleadings and a mediation in relation to Simon’s Succession Deed claim; and
     2. (b)
        a regime for the orderly advancement of the oppression claim (which would include the parties not taking the point that the oppression proceeding should have been brought by originating application because the statement of claim had already been prepared). 
110. [110]
     On 22 November 2022, Nicholsons indicated their clients’ consent to the orders proposed by CGW.
111. [111]
     Bartley Cohen replied to CGW as follows on 22 November 2022:

…

Although our clients agree that the applications should be resolved by consent orders programming the delivery of pleadings and disclosure on all actions, your letter and the programming orders proposed by your client raise some material problems:

(a) Your letter is silent on what regime the parties might agree in relation to our client’s oppression claim.

What regime do your clients propose for the oppression claim?  Do your clients propose or agree that the oppression claim can be managed with the Succession Deed claim?

Whilst our clients consider that the appropriate course is for the Nick Cameron defendants’ application and Keith and Jennifer’s application to be dismissed, they will not entertain a dismissal of the three applications without certainty as to the progression of the oppression claim.

(b) The steps proposed for the progression of the proceedings are not otherwise comprehensive.  As our client had said previously, they will not mediate before the close of all pleadings or the completion of disclosure; nor will they mediate to resolve only the Succession Deed claim leaving the oppression claim and the ongoing ownership of Roma Feedlot and Spelling Yards Pty Ltd unresolved.

…

112. [112]
     CGW replied to Bartley Cohen in a sensible way.  They indicated that the regime they contemplated was the orthodox delivery of pleadings and disclosure in pursuance of an agreed timetable.  They had no issues with the management of both claims together.  They considered it ideal that all disputes be mediated together – but considered that likely to take more than one day.  As to disclosure, they suggested that it be appropriate and proportionate and genuinely something required for medication purposes.  They proposed that junior counsel work on a schedule, counting back, as it were, from a mediation date. 
113. [113]
     It is regrettable that the parties did not discuss further CGW’s proposal for resolving these applications without the need for a hearing.  The only other correspondence exhibited is that between Carter Newell and Bartley Cohen on 25 and 28 November 2022 about Bartley Cohen’s reliance (at the hearing) upon letters marked “without prejudice”.

The position of the various parties

114. [114]
     I agree with Mr Hodge KC that it was absurd that the parties found themselves embroiled in this procedural fight – particularly in the light of the correspondence and CGW’s sensible proposed resolution. 
115. [115]
     Every party’s stated or implicit goal (in correspondence or before me) was to allow the brothers to reach a mediated resolution of their issues, without the involvement of the courts, allowing them to go their separate ways, having divided the farming business’s properties and its debts amongst themselves and no longer having to run the feedlot business together. 
116. [116]
     Indeed, in relation to the division of the farming business’s properties and debts, as the claims stand, the Court has almost no role to play.  Simon’s litigation was something which brought the parties “to the table” because the Court could order the parties to mediation over it.  But issues about the share transfer under the deed are not the only issues the parties wish to have determined by mediation, and that is something they will need to work out among themselves. 
117. [117]
     Separately, Ben has his own issues with his brothers and the running of the feedlot business.  It is reasonable to infer that, as the brother who is “happy” with the Succession Deed, he wishes to come to the Succession Deed “negotiating table” with leverage in the form of his oppression claim.  That is not to say that his oppression claim is anything other than genuine.  I make no comment about that.  But it is reasonable to assume that he filed his oppression claim as a counterclaim in the Succession Deed claim in an attempt to ensure its mediation at the same time.
118. [118]
     At the hearing, the parties stated their position in relation to mediation.  The only real difference between them was whether whether arguments about the Succession Deed and arguments about oppression at the feedlot ought to be mediated together or separately.
119. [119]
     Ben and Northern Growers’ obvious goal was for mediation of Succession Deed issues and Roma Feedlot issues together.  Mr Hodge KC framed their argument for joint mediation as follows –

     1. (a)
        The relationship between the brothers had fundamentally broken down.
     2. (b)
        Their business relationship was not confined by the matters covered by the Succession Deed – they also operated the Roma Feedlot business together.
     3. (c)
        Each of the brothers had a corporate “alter ego”.
     4. (d)
        Ben’s corporate alter ego was being oppressed.
     5. (e)
        Ben/Northern Growers wished to buy out the interests of the other alter egos in the Roma Feedlot business.
     6. (f)
        If the Roma Feedlot dispute cannot be resolved, then the court will have to deal with it.
     7. (g)
        A court will also have to deal with the breakup of the farming business under the Succession Deed.  (Actually, this is not so.  At the moment, a court can only deal with the narrow issue the subject of Simon’s claim, unless other claims are brought.).
     8. (h)
        Ben/Northern Growers wished to get to discovery (sic) as quickly as possible so that mediation could occur as quickly as possible thereafter.
     9. (i)
        Ben/Northern Growers wished for all matters to be mediated together – because that was the only way in which the disputes could realistically be resolved.

120. [120]
     Nick wished to go to mediation as soon as possible, but because the Succession Deed dispute was totally unrelated to the Roma Feedlot dispute, he considered that they warranted separate mediations.  It was “beyond unrealistic” to expect that both disputes could be resolved together.  Land worth around $45/$50 million was dealt with by the Succession Deed and there was a large debt to the NAB.  It would take some time to work through all of the issues – including because of the fundamental breakdown in the relationship between the brothers.  Having said that, Nick acknowledged that the resolution of Simon’s claim would not resolve issues completely in respect of the Succession Deed.  It was of narrow focus, and Nick did not have much of an interest in it. 
121. [121]
     Ben noted that Nick’s stated preference for separate mediations was a change in Nick’s position.  By letter dated 21 October 2022, his preference was for the brothers’ interests in the Roma Feedlot and under the Succession Deed to be mediated together.
122. [122]
     Simon wanted mediation to occur as soon as possible, and as cost-effectively as possible.  Disclosure was a potential “pit of money”.  He was concerned that, if the two proceedings were moving at different speeds, the slow one might prevent the resolution of the faster one.  While he did not wish to cut across Nick’s arguments, Simon’s position was that he wanted all family disputes resolved as quickly as possible – whether that be by way of the mediation of both together, or separately. 
123. [123]
     Keith and Jennifer’s position was that there should be a mediation sooner rather than later – but they had no interest in the oppression claim at all.  They thought there might be merit in the parties mediating both disputes at the same time but that could be managed by the court.  (I state again that a court can only deal with matters properly before it.  Issues outside of the Colane issue are not before the Court.)
124. [124]
     With respect to the procedural arguments before me, Simon indicated that he took a secondary role at the hearing.  He supported the position taken by his brother Nick, in attempting to “de-shackle” the oppression claim from the Succession Deed proceeding and wished to be heard in relation to my final orders.  Keith and Jennifer supported the relief sought by Nick and wished to be heard on his application. 

Ben’s application to “regularise” his counterclaim

125. [125]
     Ben and Northern Growers acknowledged that the counterclaim made by Northern Growers was irregular and had to be “regularised” because it was brought by an entity which was not a defendant in the Succession Deed proceedings.  They sought an order under rule 69, permitting the joinder of Norther Growers as a party (a plaintiff by counterclaim) nunc pro tunc.  They submitted that the success of their application depended on two things: (1) whether the court had the power to regularise the counterclaim by joining Northern Growers as a party; and (2) whether, in the exercise of discretion, the court ought to do so.  The application to strike out, they said, was a subsidiary issue.
126. [126]
     Nick’s position was – in effect – that new parties had already been joined by counterclaim and that therefore the question for the court was not one of joinder, but one of strike out.  Nick sought consequential orders to remove Northern Growers, Bullartoo Investments, Cameron Farming, Roma Feedlot and Beef Chain from Simon’s proceedings.

127. [127]
     Rather than spending my time working out which of the two approaches was correct, I considered both.  But before I did so, I raised with Mr Hodge KC my concern about statements made in his submissions that after a failed mediation of the proceedings (including the counterclaim) the two matters could be separated.  I could not understand how there could be resistance to separation now of matters which Ben implicitly acknowledged were properly separable. 
128. [128]
     Mr Hodge KC said there was no need for certainty about that now.  He went on to say that there was “no gain” in requiring the counterclaim to be the subject of separate proceedings.  Even if I were to require the claims to proceed separately, the court would manage both matters together.  It would still be Ben’s position that it was necessary to resolve all the disputes at once, if there were to be any realistic prospect of mediation.  Requiring the matters to be pleaded separately would only result in a loss in the sense that a new proceeding had to be commenced.  He continued,

There will then have to be the ordinary delays and timetabling and things like that that will occur in relation to the new proceeding when there’s absolutely no need for it.  That is, if we simply regularise the joinder of Norther Growers now, the court will be able to properly manage this and appropriately manage this.  And there will be no change to the position of the parties.  There will be no delay.  We can move on with attempting to resolve this very unfortunate family dispute.

129. [129]
     I stated the obvious – that the “paperwork” would all be the same.  But Mr Hodge KC contended that there would be a procedural consequence, which would delay things – namely, the need to file an application and then “convert” to pleadings. 

130. [130]
     Referring to rule 69, he argued that Northern Growers presence was “desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceedings”.  He relied upon the notion of the feedlot dispute/oppression claim being connected with the Succession Deed claim because they were both the result of issues around the financing of the Cameron farming business.  Even though Dunan had been “carved out” before the Succession Deed was signed, both matters were connected/related/interlinked.  He submitted that the connection between the Succession Deed and the purchase of Dunan was “intimate” because both were the result of the necessary financial restructure of the business.
131. [131]
     In my view, reliance on “connection” in that sense ignored the context of the use of that word in rule 69.  And it overlooked the fact that Ben’s claim was a claim in oppression – not a claim in relation to, say, his ownership of Dunan.
132. [132]
     In a colloquial sense there is a connection between the Succession Deed claim and the oppression claim because they involve members of the same family and historical steps taken to improve the family business’s financial position.  But that sort of connection is not what the rule has in contemplation.  Arguments about the feedlot business have nothing at all to do with/no connection with the matters in dispute in the Succession Deed proceedings. 
133. [133]
     For the purposes of the Succession Deed claim, the facts that Dunan was carved out of the farming properties, and the feedlot was established, may be of relevance to the extent to which the pleadings in that claim make assertions about the intention of the parties to the deed.  But problems between the brothers in the running of the feedlot business on Dunan, which arose after the Succession Deed was made, have no logical relevance to the share transfer made in pursuance of the deed or the other issues raised by the Succession Deed claim.  The fact that the brothers cannot run the feedlot business together might mean that one or more may now resent the consequences of the Succession Deed – but that is beside the point. 
134. [134]
     The counterclaim also sought a declaration, seeking the corollary of the relief sought in Simon’s claim – that is a declaration that the Succession Deed remained binding.  I will deal with that aspect of the counterclaim later.
135. [135]
     Ben submitted that the power to regularise the proceedings, by way of adding a plaintiff by counterclaim, was established by Whynot Assets Pty Ltd v Trinity Green Developments Pty Ltd [2012] QSC 205. 
136. [136]
     Whynot involved litigation over a substantial and complex dispute involving two parties – the Indigo parties and the Hatia parties, which included the second respondent company, Arshad.  Arshad applied for leave to add plaintiffs and defendants to its counterclaim, including Trinity Green Developments Pty Ltd.  Arshad applied for leave to bring derivative proceedings on behalf of Trinity Green under section 237 of the Corporations Act 2001 (Cth).  McMurdo J, as his Honour then was, refused to grant leave.  His Honour was not satisfied that leave was in the best interests of the company.  Mr Hodge referred me to two paragraphs of that judgment – [14] and [27] – and submitted that it was “quite apparent” that his Honour took the view that it was within power to “regularise” a situation in which there is a new plaintiff or new defendant by counterclaim.  Those paragraphs said (my emphasis) –

[14] Ashad’s most recently filed defence and counterclaim is that filed on 31 May 2012.  It purported to join L & W as the second plaintiff by counterclaim and the counterclaim was made against Trinity Green, Mr Truce and Indigo (Ann Street) Developer Pty Ltd.  The proposed defence and counterclaim would go further in several respects, in order to make [certain] claims on behalf of Trinity Green … But it is relevant to know that the Indigo parties pleaded in response to that pleading filed on 31 May.  Therefore many of the issues sought to be agitated, within at least two of the proposed claims to be made by Trinity Green, are issues which have been joined on the existing proceedings. 

…

[27] It follows that the application or applications under s 237 of the Corporations Act should be dismissed.  However, it also follows … that Arshad should succeed on its application, insofar as it seeks to join (or to regularise the joinder of) L & W as second plaintiff by counterclaim and that of Mr Nielsen, Mr Truce and Indigo (Ann Street) Developer Pty Ltd as defendant to the counterclaim …

137. [137]
     The situation in Whynot is very different to the situation here, including because the parties had joined issue with matters pleaded in the counterclaim.  In the present case, the counterclaim would add to the factual controversy in Simon’s claim.  The operation of the feedlot business was not an issue in Simon’s claim.  But I do not need to express a view on whether or not that case establishes power.  Even if it did, the success of Ben’s application would still come down to the exercise of my discretion.^[8]
138. [138]
     I accept that rule 69 is broad in its application.  And I appreciate that I am not to be concerned with disputes in existing proceedings, but rather disputes connected with existing proceedings.  I understand that the rule involves a discretion which is to be exercised in the light of the purpose of the Uniform Civil Procedure Rules 1999 – as per rule 5: to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense – and with the object of avoiding undue delay, expense, and technicality. 
139. [139]
     Referring to MAM Mortgages Ltd (in liq) v Cameron Bros (a firm) [2002] QCA 30 at [27], Ben submitted that “convenience alone” could justify joinder.  That is not quite so.  A court must consider what is desirable, just and convenient.  In MAM at [27] McPherson JA said (my emphasis):

Rule 68(1) (sic) authorises the court “at any stage of a proceeding” to order that:

1. (a)
   …

2. (b)
   any of the following be included as a party -

1. (i)
    a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceedings;

2. (ii)
    a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceedings.

For reasons similar to those I gave in Interchase Corporation Limited (In Liq) v FAI General Insurance Company Limited [2000] 2 Qd R 301, 312, I would be inclined to doubt whether either Richard Cameron or the executors of John Cameron was or is a “necessary party” to the action no 1562 of 1996 by MAM against David Cameron or Cameron Bros as defendants.  The basic difficulty is that the word “proceeding” appears to refer to the action as it stands before further parties are added: cf Interchase v FAI [2000] 2 Qd R 301, at 314.  But that question need not be decided here because I am satisfied that the addition of Richard Cameron and John Cameron’s executors is covered by Rule 69(1)(b)(ii).  Their presence before the court is, at the very least, “desirable, just and convenient” to enable the court to adjudicate effectually and completely “upon all matters in dispute connected with the proceedings”.  In Interchase v FAI [2000] 2 Qd R 301, 312, 316, it was said both by Byrne J and by me that convenience alone cannot justify joinder; but Rule 69(1)(b)(ii) is now worded differently from the provisions of O 3, r 11 that were considered there.  It is sufficient now if it is desirable, just and convenient to enable the court to adjudicate on all matters that are in dispute not only in the proceedings but connected with it.  The question whether, as partners of Cameron Bros until 30 June 1991, those persons are liable to MAM for the valuations produced by David Cameron, whether negligently, misleadingly or in breach of contract, is clearly a matter or matters “connected with” the proceedings by MAM against Cameron Bros and David Cameron, and it was and is desirable, just and convenient that those persons should be included in the proceeding so as to enable the court to adjudicate on their liability, if any, in contract or for misleading conduct.

140. [140]
     In my view, the connection relied upon in MAM is much more “intimate” than the connection relied upon here and it is for that reason that it was held to be desirable, just and convenient to join the partners of the partnership which was sued.
141. [141]
     The connections relied upon by Ben (set out at paragraphs 32 of his written outline) are insufficient to justify the addition of Northern Growers as a plaintiff by counterclaim in the Succession Deed claim.  It is not enough that the brothers operate businesses on the land dealt with by the deed and on Dunan.  Ben’s claim is an oppression claim.  It is not a claim about his entitlement to Dunan.  The feedlot oppression claim is not connected in a relevant way to the Succession Deed claim.  The difference between them is obvious.  If both the claim and counterclaim each went to separate trial, it is true that the same witnesses are likely to be called in each.  But they are unlikely to say the same thing in each – beyond perhaps by way of an historical narrative.  Common sense informs that the evidence relevant to the oppression claim would be wholly irrelevant to the Succession Deed claim, which focuses on Ben’s conduct in relation to the Succession Deed in 2019.  The disputes are clearly connected to the same overarching issue between the three brothers – the disintegration of their relationships.  That connection may well be enough for the parties to agree, consensually, without the intervention of the court, to mediation of all things which would allow the brothers to go their own separate ways.  But it is not enough to warrant the joining of Northern Growers as a party under rule 69. 
142. [142]
     At paragraph 33 of his written submissions, Ben argued that “if the brothers had adopted a structure where they were each individual shareholders in Roma Feedlot, there would be no issue as to the proper constitution of the proceeding.  Ben, as a defendant, could bring an oppression action against his siblings as shareholders in that company as of right under rule 178(1)(a) and (b), without the need to rely on rule 69(1)(b)(ii)”.  Given the brothers’ corporate “alter egos”, he argued that there was no substantive difference between the joinder of Northern Growers and the situation in Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor [2011] QCA 102 where Muir JA permitted the joinder of the parent company of its wholly owned subsidiary, which was already bringing a claim in the proceeding.  He argued that it was consistent with rule 179(1)(b)(i) and any difference was one of the corporate form the Cameron brothers had decided to conduct their business affairs. 

143. [143]
     The short answer to that argument is that the brothers did not adopt that structure and that is not what I am dealing with.  There were, I infer, good reasons for the brothers deciding to own the feedlot business via their corporate entities.  That is not something that can simply be ignored for civil litigation purposes.  
144. [144]
     Ben referred often to rule 5 and submitted that the joinder he sought was consistent with it.  He contended that if I were not to grant leave, the purpose of the rules would be frustrated, because Northern Growers would have to commence a separate proceeding, which would unnecessarily delay the parties seeking a resolution of all of their disputes.  With respect, that argument is breathtakingly bold.  Knowing that it was “irregular” to do so, Northern Growers filed an oppression counterclaim with, at best, a tenuous, circumstantial connection to the Succession Deed claim.  Then it added to the oppression claim an unnecessary claim for a declaration that the Succession Deed was valid and binding (see below) to create some sort of “counter” to Simon’s claim.  Having ignored the rules of joinder and paying little heed to authoritative statements of principle about counterclaims and declarations, it now seeks to persuade me that my failing to “regularise” a deliberate irregularity would be inconsistent with rule 5.
145. [145]
     Of course, the rules are intended to assist in the just resolution of disputes.  But as the authors of the UCPR Digest explain, the Court should not give its imprimatur to “blithe” conduct of litigation without regard to quite basic and known requirements.  Without question, the very broad powers given to the Court by the rules should be used judiciously to achieve a fair and just result.  “But the charter of procedure contained in the UCPR cannot be approached on the basis that if important provisions are ignored … the court may be expected to act indulgently and rectify the omission.  Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just: Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455. 
146. [146]
     It follows that Ben and Northern Grower’s application under section 69 is refused.^[9]

Nick and Bullartoo’s complaints about the counterclaim

147. [147]
     Nick and Bullartoo’s position was that joinder had been achieved upon filing (see rule 371) and the proper question for the court was one of strike out.
148. [148]
     Nick and Bullartoo made many arguments supporting the striking out of both parts of the counterclaim – the oppression claim part of it and the declaration claim part of it.  I have considered in detail only those which were emphasised at the hearing which were relevant to the real issues here. 
149. [149]
     One of Nick and Bullartoo’s complaints about the counterclaim was that it did not meet the requirements of Chapter 6 of the UCPR.
150. [150]
     Chapter 6 applies to counterclaims.  Under rule 177, a defendant may make a counterclaim against a plaintiff, instead of bringing a separate proceeding.  Under rule 178, a defendant may make a counterclaim against a person, other that the plaintiff, whether or not that person is already a party to the proceeding if –

     1. (a)
        the plaintiff is also made a party to the counterclaim; and
     2. (b)
        either –

        1. the defendant alleges that the other person is liable with the plaintiff for the subject matter of the counterclaim; or
        2. the defendant claims against the other person relief relating to or connected with the original subject matter of the proceeding.
151. [151]
     Under rule 182, the court may, at any time exclude a counterclaim from the proceeding, and give directions the court considers appropriate about the conduct of the counterclaim.
152. [152]
     Nick and Bullartoo argued that the oppression counterclaim was a new claim, concerning the Roma Feedlot business, which had nothing to do with the original proceedings commenced by Simon.  It nothing to do with Nick’s parents, Keith and Jennifer, yet would burden them unnecessarily.
153. [153]
     The allegations made by Northern Growers (as a member of the Roma Feedlot) in the counterclaim were not properly or permissibly counterclaims made by Ben (who was not a member of Roma Feedlot).  Northern Growers was not a defendant to the proceeding commenced by Simon and rules 177 and 178 did not permit a non-party to a proceeding to make a counterclaim.  This was, they argued, fundamental non-compliance with the rules.  And in any event, not all of the requirements of 177 and 178 were satisfied.  Beef Chain was not a member of Roma Feedlot.  It neither sought relief, nor was it a party against whom Northern Growers sought relief in its oppression claim.  Nor was it a party to the original Succession Deed proceedings.  Its role in any proceedings was unclear (although Ben and Nick were its directors).  It was not necessary or convenient to join it to the oppression claim.  The prayer for relief did not specify a proper basis for Nick’s removal as director of Roma Feedlot or Beef Chain.  To the extent to which statutory provisions were relied upon, the pleadings failed to identify them.  And furthermore: the counterclaim was vague, difficult to understand and failed to clearly state the case that Nick and Bullartoo had to meet.  
154. [154]
     Nick and Bullartoo acknowledged that Ben’s counterclaim for a declaration was ostensibly consistent with rules 177 and 178.  But they contended that the declaration was neither necessary nor appropriate.  The plaintiff was not seeking orders to set aside the Succession Deed.  Thus, the utility of the declaration was unclear.  If the relief sought was successful opposed, then the declaration would serve no purpose.
155. [155]
     On the issue of the utility of the declaration, they referred to the decision of Jackson J in Manthey Redmond (Aust) Pty Ltd (in liq) & Ors v Manthey & Ors [2017] QSC 145 at [34] – [39].  Those paragraphs dealt with declaratory relief and its utility (omitting footnotes, my emphasis).

[34] By s 10(2) of the Civil Proceedings Act 2011 (Qld):

“The court may hear an application for a declaratory order only and may make a declaratory order without granting any reiled as a result of making the order.”

[35] Section 19(2) is the modern manifestation of the reforms begun in the 19^th century to make clear the power of the court to grant purely declaratory relief.  Nevertheless, discretionary principles inform the exercise of the power, including that a court will decline to grant a declaration which lacks utility or has insufficient practical purpose.

[36] Where no substantive relief will follow from the grant of a declaration, and the declaration will be inutile to resolve or quell any other controversy between the parties, the court may not grant the declaratory relief sought, as a matter of discretion.  The difficult in the present case it to identify what “real interest” the plaintiff has in the relief sought.

[37] Perhaps the leading statement of principle on this point is contained in the plurality reasons in Ainsworth v Criminal Justice Commission, as follows:

“It is now accepted that superior courts have inherent power to grant declaratory relief.  It is a discretionary power which ‘it is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise’.  However, it is confined by the considerations which mark out the boundaries of judicial power.  Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.  The person seeking relief must have a ‘real interest’ and relief will not be granted if the question is ‘purely hypothetical’, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the court’s declaration will produce no foreseeable consequences for the parties’.”

[38] Another useful discussion appears in Commonwealth v BIS Cleanaway Ltd where Hodgson J said:

“There would in my opinion be no practical consequences of the making of declarations of the kind sought, except such consequences as they may have in relation to a breach, claim or expense of the kind I have mentioned.  And even if the claimant were to allege any such breach, claim or expense, this would almost certainly raise specific question as to the interpretation of the licence, as to what, if there had been a novation, or were the precise terms and effect of the novation (for example in relation to activities which had been undertaken prior to the novation) and what (if there had been termination of the licence or some other event effecting its operation as from any particular time) was the effect of the termination, of that affectation, as to any application the licence had into the future from that time.  Issues such as these would be issues that would be best dealt with together with determination of issues raised in connection with the orders actually sought in the proceedings, rather than separately from them in a piecemeal way.

The determination of the issues such as these, separately from determination of issues relating to the declarations sought, will be very likely to raise serious problems of a kind that can be raised when separate determinations of interrelated questions are sought. 

It is for those reasons particularly, in addition to the theoretical and very general and unspecific nature of the declarations, that I consider that it could not be an appropriate exercise of discretion in this case to grant the declarations sought.”

156. [156]
     Nick and Bullartoo complained about other aspects of the pleading of the counterclaim including that paragraph 60 did not rely upon any paragraphs within the counterclaim itself.  Rather, it relied on paragraphs P to LL and 59 to 94 of the defence.  Paragraphs P to LL were part of Ben Cameron’s defence, but they did not directly respond to Simon’s claim.  Commencing the defence with an overview did not comply with rule 165(1) because it was unresponsive.  (Rule 165(1) permits a party to plead in response to a pleading a denial, a non-admission an admission or another matter.)  It also failed to comply with rule 149(1)(a) which required each pleading to be as brief as the nature of the case permitted.  I note too that, in relation to the paragraphs identified by letter, Nick and Bullartoo quietly observed that they fell foul of the requirement for numbering in rule 146(1)(f).
157. [157]
     They submitted that Ben’s unconventional and impermissible approach presented difficulties for them in responding to it (as they were required to do), similar to those raised by Jackson J in Mio Art Pty Ltd v Macequest Pty Ltd & Ors [2013] QSC 211 at [58] – [72]. 
158. [158]
     Mio Art’s 3FASOC’s paragraphs [1] to [260] (apart from [254]) alleged factual matters, mostly in chronological order.  Paragraphs [261] and [262] contained allegations of loss and damage.  Paragraph [261] alleged that, “by reason of the matters pleaded in [1] to [260] KHD has suffered loos and damage”.  Paragraph [261] alleged that Mio Art had suffered loss and damage “further or in the alternative” to paragraph [261].  Paragraphs [263] to [291] alleged that the facts previously pleaded constituted a variety or causes of actions against each of the defendants.  The defendants applied for orders striking out the statement of claim and dismissing the proceeding.  They were successful in their application for strike out which included an argument that the material facts for the separate causes of action had not been sufficiently pleaded. 
159. [159]
     In the passages referred to by Nick and Bullartoo, Jackson J discussed the difficulty in ascertaining material facts from the content of the narrative 3FASOC.  It is worth repeating almost all His Honour said (footnotes omitted, my emphasis):

[58] When a narrative style of pleading is adopted, and there are numerous causes of action raised by the pleading, there can be real difficulty in ascertaining the material facts constituting a particular cause of action.  The difficulty is increased where the narrative is longer, the number of causes of action is greater (particularly where there are alternative inconsistent allegations) and the causes of action are legally more complex.  This case represents a paradigm of the problems that may occur.

[59] The starting point is that (subject to any direction to the contrary) a plaintiff is entitled to join parties and causes of action in the one proceeding, where there is a common question of law or fact, but is required to plead only the material facts constitution each cause of action.  Nonetheless, a plaintiff is not usually obliged to specifically identify in the pleading which material facts go to which cause of action against each defendant.  The old practice of common law pleadings where the declaration alleged each count separately, which still obtains in criminal pleading, no longer obtains on the civil side and was never the method of pleading in equity.

[60] This illustrates why and emphasises that, in a case of complexity, it is critical that the pleading allege “all the material facts … but not the evidence by which the facts are to be proved”.  Otherwise the would-be analyst of the pleading is left swimming in a sea of evidentiary facts while trying to identify the material facts for each cause of action.  Drowning often follows, at the expense of the intent under UCPR 5 that the proceeding be conducted to “facilitate the just and expeditious resolution of the real issues … at a minimum of expense” and the requirement that “each pleading must … be as brief as the nature of the case permits” under UCPR 149(1)(a).

[61] The “material fact” model of pleading was a reform of the rules of court brought into effect under the Judicature Act 1876 (Qld) for the administration in the one court of the rules of common law and equity.  Brevity was the intent, in contrast to the prolix pleadings of common law and particularly equity beforehand.  Perhaps the drift of history has caused a loss of focus as to the importance of the purpose of the reform.  That said, a lengthy pleading is not necessarily a vice.  Where it is prepared with great precision and isolates the issues, there is no cause for complaint.

[62] But where a pleading alleges a lengthy historical account of facts that occurred over an extensive period of a commercial relationship, then particular specific causes of action are pleaded on the basis that the reader is invited to find the relevant material facts for a cause of action in all that has gone before, the price for the death of that hero, brevity, is not paid in the valuable coin of precision.  Instead, the reader is invited on a would-be treasure hunt, with the unlikely satisfaction that after looking in every nook and cranny, and trying every combination possible, there will be an Archimedian ‘Eureka” moment.

[63] Where a pleader has fallen into this error, there is a remedy.  It is to require that the pleading identify the material facts for each cause of action.  That will exclude those facts which go to another cause of action, as well as any “narrative” non-material facts.  A direction can be made, for example, that the pleader separately plead the material facts for each cause of action alleged.  But that is not often a remedy which will lead to expedition or a minimum of expense, and so must be used in sparing measure. 

[64] At the risk of stating the obvious, it is as well to recall just what a material fact is.  In its primary meaning, a material fact is a fact that the plaintiff must prove to succeed in a claim for relief upon a cause of action.  The conceptual power of the material fact model of pleading is not recognised often enough.  There is a trend to treat this most fundamental obligation of procedural rules as something which is best overtaken by detailed factual and legal submissions.  I could not disagree more strongly with that view and I am glad to say that the pleading rules have not been altered to countenance it.  There is a place for detailed factual and legal submissions, but is it not as a replacement for the identification of the material facts.

[65] The cases have long recognised the negative proposition that if any one material fact is omitted, the pleading of a cause of action is bad.  I prefer to look at it from the positive side.  If a plaintiff proves all the material facts, it must succeed on a cause of action.  Thus the case is reduced to its factual skeleton in law.  By adhering to the concept of a material fact in the practice of pleadings, the courts serve the purposes of efficiency and cost-saving which inform the procedural rules.  The only issues joined are upon material facts.  The only evidence led proves or disproves the material facts.  The decision in the case is not affected by the irrelevant and the decision maker is not distracted from the material facts.

[66] This model is based on the concept that the decisional process is ordinarily a judgment following a trial, where the issues of material fact as defined by the pleadings are determined.  These days, civil trials are conducted by a judge sitting alone, except in rare cases.  But the conceptual model of a trial of the issues of fact, resulting in findings and verdict, is still the basis of the process which can be traced backwards through the common law.

[67] Prior to a trial, the material fact conceptual model may come into play where the facts alleged do not disclose a reasonable cause of action or defence.  The procedure upon demurrer no longer exists in civil proceedings, although it is retained in the criminal jurisdiction.  Instead, the opposite party may apply to strike out all or part of the pleading on that ground.

[68] As well, the court may strike out a statement of claim or part of a statement of claim if it: has a tendency to prejudice or delay the fair trial of the proceeding; or is unnecessary or scandalous; or is frivolous or vexatious; or is otherwise an abuse of the process of the court …

[69] Alternatively, if the facts alleged are sufficient to disclose a reasonable cause of action but are not supportable as a matter of evidence, the court may intervene upon an application for summary judgment …

[70] Another relevant interlocutory principle emerges from the material fact pleading.  The pleading must not oppress a defendant by vague or uncertain allegations, lacking particularity … [A] defendant is entitled to know the case it has to meet at trial.

[71]  Informed by those considerations, the search in paragraphs [1] to [241] for the precise material facts that constitute the specific breaches of he covenant or contract is objectional pleading in my view, even if it does not offend the requirements that the pleading “must … be as brief as the nature of the case permits [and] not [contain] the evidence by which the facts are to be proved.  For brevity, I will call such a problem the “narrative defect” …

[72] The narrative defect obscures the articulation of exactly what constitutes the relevant breaches of covenant or contract.^[10]

160. [160]
     Even if there were utility in a declaration that the Succession Deed was valid and binding (a matter which was not in dispute), there was no pleading in the counterclaim of the matters propounded as the basis for that relief to which Nick and Bullartoo might respond.
161. [161]
     They argued that the operation of rule 177 depended upon there being a proceeding against a defendant who may counterclaim, referring to Toms & Ors v Fuller [2010] QCA 73 at [34].
162. [162]
     They submitted that it was necessary for me to look at the distinct causes of action pleaded in the counterclaim to determine their compliance with the relevant rules and the Court’s jurisdiction to entertain each cause of action as a counterclaim: relying on Abacus Funds Management Ltd v Nethurst [2003] QCA 423.  There, at first instance, leave for the filing of a counterclaim was refused, solely on the basis that the relevant claim was not against a plaintiff in that case – even though rule 178(1)(b) was otherwise satisfied. 
163. [163]
     At first instance in Abacus, Margaret Wilson J at first instance was considering a counterclaim made by the two defendants against the plaintiff and two others.  The counterclaim had not been filed at the same time as the defence and therefore the defendants required an extension of time to file it.  Her Honour considered rules 179 and 178.  Her Honour considered the nature of the plaintiff’s claim – which was in relation to the lease of a restaurant.  The plaintiff sued for arrears of rent and damages for breach of the lease.  It alleged that the lessee abandoned the premises.  The first defendant was the lessee, and the second defendant was its guarantor.  The defences pleaded included repudiation by the (original) lessor; mutual abandonment; and that the lease was void.  The lessee also alleged that misrepresentations had been made to it by Johnson, a director of the (original) lessor, upon which it relied, causing it to suffer loss.
164. [164]
     The proposed counterclaim was against the original lessor as first defendant by counterclaim, Johnson as third defendant by counterclaim and the plaintiff lessor as second defendant by counterclaim.
165. [165]
     In deciding whether to extend time, her Honour considered carefully the prayer for relief by way of counterclaim.  And she considered the party against whom each separate claim was brought.  She held that the relief claimed against the plaintiff in paragraphs 1 – 10 of the counterclaim would not be available because of the relevant provisions of the Trade Practices Act and that other counterclaims against the original lessor and Johnson had no prospect of success.
166. [166]
     Paragraph 11 of the prayer for relief sought damages for negligence for moneys and for damages representing the amount claimed by the plaintiff.  Her Honour said, “Under Rule 178(1)(b) of the UCPR it is necessary to show a rational connection between the relief claimed against the original lessor and Johnson and the subject matter of the plaintiff’s action against the lessee and the guarantors …It seems to me that at least the second head of damages claimed has such a connection with the claims for arrears of rent and damages for breach of lease which are the subject matter of the plaintiff’s claim”.  Her Honour found that the defendants had a claim in negligence against the original lessor and Johnson.  But her Honour referred to rule 178(1).  She found that subparagraph (b)(ii) had been satisfied but subparagraph (a) had not been, because the claim for negligence would not be against the plaintiff and the plaintiff would not be therefore a party to the counterclaim.  Her Honour dismissed the whole of the application. 
167. [167]
     Nick and Bullartoo argued that it was not enough – to satisfy 178(1)(a) – for the counterclaim to include the declaration claim as some sort of “springboard” for Northern Growers’ distinct oppression claim.
168. [168]
     In resisting the application to strike out the counterclaim, and in support of his application for joinder, Ben relied upon Koanga Institute Inc v Kotare Community Land Trust [2021] NZHC 169.  Koanga concerned an application to strike out a counterclaim on the basis of the identity of the counterclaimants who were not defendants to the proceedings.  In other words, those who purported to be counterclaim plaintiffs were not already defendants.  In the ordinary course, those who wished to bring the counterclaim would file separate proceedings and seek to consolidate them.  The question was whether the court should simply deal with that matter by permitting their joinder – bearing in mind the philosophy underpinning the New Zealand High Court Rules. 
169. [169]
     The parties accepted that the civil procedure rules of New Zealand contained a provision not unlike rule 5 of the UCPR.  They required the rules to be applied “to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application”.  Cooke J in Koanga went on to say at [16] that the rules were a means to an end.  His Honour continued:

There are frequently alternative pathways available within the rules to regulate the procedural course of a proceeding.  Rather than applying those rules in a technical manner, the Court should endeavour to apply them to achieve that objective.  For example, here the argument that the counterclaimants are not parties in a way contemplated by r 5.57 [Counterclaim against plaintiff and another person] could simply be addressed by joining them as parties under r 4.56 [Striking out and adding parties].  What is more important is the requirement in rule 5.57(1) and 6(c) that the counterclaim is related or connected to the original subject matter of the proceeding – that is an important question for deciding that the matter should be addressed in that proceeding.  So the real question is what is the best approach for managing the disputes that are subject to the rules …

170. [170]
     I note other broad similarities between the situation in Koanga and the matter before me, including a complex background, an acknowledgement that present arrangements could not continue, and a desire to avoid long, complex, and expensive proceedings – including pointless procedural arguments – and considerable distrust.  A significant difference though was that most of the additional counterclaimants in Koanga were originally defendants to more broad ranging claims brought by the plaintiff in its original statement of claim and then discontinued.  Their discontinuance did not get in the way of a defendant bringing a counterclaim, under rule 5.59 [Status of counterclaim if proceeding stayed] – as I read the rule, if the counterclaim had already been set up.  However, one of the counterclaimants was not originally a defendant and the rule did not therefore apply to her.  It was argued that, nevertheless, she ought to be permitted to pursue her counterclaim just as much as the others.  Cooke J agreed and she was joined under rule 4.56 [Striking out and adding parties].  For obvious reasons, Mr Hodge KC submitted that I ought to take the same approach here.
171. [171]
     I note that New Zealand rule 5.57 only allows a counterclaim for relief that is “related to or connected with the original subject matter of the proceeding”.  His Honour went on to consider whether the counterclaim was sufficiently connected to the claim.  Again, his Honour approached the application in the manner described above. 
172. [172]
     His Honour noted that a discretion was involved and the importance of effective and efficient case management.  At [20] his Honour said, “… it is appropriate to first consider the plaintiff’s claims.  The it must be considered whether each of the causes of action subject to the counterclaims relate to, or are connected with, the subject matter of the claims”.  Speaking very generally, his Honour held that the claims made by each side related to the same subject matter; or arose out of the same matters; or necessarily involved similar inquiries; or they were factually interrelated. 
173. [173]
     I note also his Honour’s approach to the argument that the counterclaims were not against the plaintiff at [34] – [39] but I do not wish to get bogged down in a consideration of the New Zealand High Court Rues.  Regardless, in the matter before me, there is no validly constituted counterclaim by Ben Cameron and Northern Growers. 
174. [174]
     As to the joinder of the party who was not ever a defendant, I note that she was one of the beneficiaries of an existing defendant – and in that sense, there was her strong connection with the existing subject matter of the proceedings.
175. [175]
     Also of relevance to me was the approach of his Honour in considering the counterclaims claim by claim – just as Margaret Wilson J did in Abacus.
176. [176]
     In my view, Koanga does not assist Mr Hodge KC either in resisting the application to strike out the counterclaim or in persuading me that Northern Growers ought to be joined. 
177. [177]
     Nick also took me to the following statement from Watkins Limited v Plancorp No 6 [1983] 2 Qd R 501 at 506, (to which, I note, Margaret Wilson J referred in Abacus) in which McPherson JA cautioned about the misuse of the counterclaim procedure.  His Honour said –

It is, however, fundamental to rule 4(3) of the Judicature Act that no counterclaim is maintainable against a non-party unless the plaintiff is also a party to it or unless the relief sought is claimed against the plaintiff as well as the non-party … It is not to be supposed that in every case the ability of a defendant to frame a claim as one for a declaration against the plaintiff will justify a counterclaim of the kind here in question …

178. [178]
     With respect to the declaration counterclaim, among their several arguments about it, Nick and Bullartoo submitted that it –

     1. (a)
        could not be advanced to legitimise the distinct oppression claim by Northern Growers;

and

2. (b)
   was liable to be struck out because –

   1. there was no prospect of the relief being obtained because it lacked utility; and
   2. it failed to comply with rules 164(1)(f) and 149(1)(a)-(c).

179. [179]
     They referred me to Beer v Australand (Qld) Pty Ltd [2010] QSC 369 in which McMurdo J (as his Honour then was) held that a defendant “sought to give its contributory negligence case the appearance of a distinct cause of action, by pleading the material facts under the heading of a counterclaim and by claiming declarations which could not determine the respective positions of the plaintiff and the defendant and which could not be relevant or appropriate once the plaintiff’s claim is determined”. 
180. [180]
     No party – apart from Simon – was contending that the Succession Deed was not valid and binding.  And Simon’s concern related to the control of Colane only.  If his claim was determined in his favour – then the dispute was over.  The declaration would not be made.  And if Simon lost, the declaration added nothing.  It was of no utility. 
181. [181]
     Because I am of the view that the declaration claim is of no utility (see below), I do not need to go on to consider in any detail the complaints about the way in which the declaration claim was pleaded, including complaints about the “problematic overview.
182. [182]
     Additionally, Nick and Bullartoo complained that particular paragraphs of the counterclaim –

     1. (a)
        cross referred to other paragraphs of it;
     2. (b)
        contained repetitive and therefore largely unnecessary paragraphs;
     3. (c)
        failed to identify the specific statutory provisions relied upon to support the allegations made therein – exacerbating the vagueness in unnecessarily repetitive pleas;
     4. (d)
        failed to make clear who was said to have engaged in certain conduct;
     5. (e)
        failed to identify the actual conduct alleged to have been engaged in;
183. [183]
     Further, there had not been compliance with Schedule 1A of the UCPR insofar as the proceedings governed by the Corporations Act 2001 were concerned.  Even if proceedings under the Corporations Act 2001 were properly commenced, there was no reason for their consolidation with the original proceedings (cf rule 78).
184. [184]
     They referred to Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314 and Mio Art Pty Ltd v Macequest Pty Ltd & Ors [2013] QSC 211 in support of their arguments about issues with the content of the pleadings.
185. [185]
     Pinehurst concerned deemed admissions in the context of a claim about a lease.  Pinehurst sought summary judgment on its claim against the defendant “CDLI” based on deemed admissions in the defence.  CDLI argued that its defence did not give rise to deemed admissions, but if it did, then it sought leave to withdraw them. 
186. [186]
     As is well known, allegations of fact are taken to be admitted unless they are denied or “not admitted”.  In accordance with rule 166, to be effective (to avoid a deemed admission) a denial or non-admission must be accompanied by a direct explanation for a party’s belief that the allegation of fact is untrue or cannot be admitted.  In answering the question whether CDLI had denied or made non admissions of relevant allegations, Martin J (now SJA) considered the content of its defence.  His Honour observed that CDLI had admitted the lease but the allegation that CDLI had repudiated and breached it was met only with a bald denial in paragraph 12, without a direct explanation for the denial.  CDLI submitted that paragraphs 13 – 16 of its defence constituted a direct explanation for the denial because they alleged breaches which entitled CDLI to terminate the lease.  It submitted that the breaches referred to were “self-evidently” a reference to breaches alleged in other paragraphs of the defence.  His Honour noted that the pleading of the breaches neither accompanied the denial nor were they direct explanations.  His Honour continued at [29] with the following observations about CDLI’s inadequate pleading (footnotes omitted):

The terms of r 166 are not satisfied by the type of manipulation of paragraphs and hindsight-reconstruction advanced by CDLI.  The first defence is a very inadequate pleading.  It is the product of a confused approach which might once have passed muster, but no longer.  The exercised advanced by CDLI – if having to dig through the various parts of the pleadings in an effort to prop up a denial – is inconsistent with the pleadings regime imposed by the UCPR.  Neither the opposing party not the court should have to wade through a series of unconnected assertions searching for the issues.  To paraphrase an illuminating statement made elsewhere judges are not like pigs, hunting for truffles in pleadings.

187. [187]
     The deemed admissions were enough to allow judgment, but CDLI were granted leave to withdraw their deemed admissions and to file an amended defence and counterclaim. 
188. [188]
     The paragraphs of Mio Art to which I was referred concerned the considerations relevant to an order for indemnity costs in the case of narrative-style pleadings struck out under rule 177.  Jackson J explained that many factors informed the exercise of the costs discretion.  Mio’s pleadings (its third further amended statement of claim: “3FASOC”) were not struck out simply because they were of narrative style.  That was not the issue with the 3FASOC –

[42] … First, the reasons for judgment do not for a minute suggest that all narrative is objectionable.  It was the 3FASOC that was objectionable.  In my view, a careful reading of the 3FASOC revealed that there was a problem in identifying with precision the case which defendants would have to meet.  A serious problem of that kind is no mere technicality or matter of fashion – it goes to the very heart of the fairness of the adjudicative process.  The method deployed by Mio in the 3FASOC did not “make known to the court and the parties the nature of the … case … in [this] complex matter …”

189. [189]
     Nick and Bullartoo complained that, while paragraphs [59] to [94] of the defence responded to the statement of claim, those paragraphs mostly contained denials or explanations for denials.  While there were some additional matters pleaded, those additional matters concerned issues between Ben and Simon. 
190. [190]
     Paragraph [60] purported to rely upon paragraphs P to LL of the Overview – that is, the narrative part of the defence.  Paragraphs [93] and [94] relied upon paragraphs II to LL of the Overview.  The matters alleged in paragraphs P to HH pre-dated the Succession Plan.  The basis upon which Nick and Bullartoo were to plead to the matters in P to HH was not clear to them.

Ben and Northern Growers Response (20 September 2022)

191. [191]
     Ben and Northern Growers immediate response to the complaint of Nick and Bullartoo was that they had yet to file a notice of intention to defend and therefore could not take a step in the proceeding without leave.  They were invited to withdraw their complaint.
192. [192]
     More generally, Ben and Norther Growers essentially re-argued that the disputes the subject of their counterclaim and Simon’s dispute were part of the “same broad dispute” between Simon Nick and Ben about the division of the family’s assets on which the family businesses (including the Ardno Pastoral business) were conducted.  Ben and Northern Growers argued that the disputes need to be resolved “once and for all” so that the family business and assets were not prejudiced.  In correspondence, the matter was expressed as follows (grammar corrected by me):

Simon’s claim concerns a division of the family assets, focusing on “Colane”.  It relevantly seeks recission of the transfer of shares in CPI 9the company which owns “Colane’) being a transfer made pursuant to the Succession Deed, and the restoration of those shares to Keith and Jennifer. Simon’s claim pleads and necessarily requires a consideration of the circumstances leading to and following the execution of the Succession Deed by Simon, Nick, Ben, Keith and Jennifer.

Those circumstances include: (a) the proposed division provided for in Keith’s and Jennifer’s wills made in 2009; (b) that since the wills were made, financial issues affected the viability of the business and a key asset “Dunan” (which was allocated to Ben in the wills), had to be sold in order to pay down bank debt (the plaintiff pleads this sale, selectively, at paragraph 10 of the statement of claim); and (c) pressure applied by the bank requiring the need for a succession to be implemented prior to Keith’s or Jennifer’s passing.

It is the sale of “Dunan” to Northern Growers (an entitled controlled by Ben) and the subsequent undertaking of a business by the three siblings on “Dunan” alongside the Ardro Pastoral Business which gives rise to the oppression action pleaded in Ben’s counterclaim.  That business, the Roma Feedlot business, is operated by companies who are the alter egos of Simon, Nick and Ben.  As you no doubt know, companies can only act by natural persons.  As such, in truth, the parties to the Roma Feedlot dispute are Simon, Nick and Ben.  That business is in deadlock in similar circumstances to those raised in Simon’s claim.

It is readily apparent from the foregoing that the issues which underpin both Simon’s claim and our client’s counterclaim concern the breakdown in relations between Simon, Nick and Ben and the need to resolve, in one proceeding, once and for all, the disputes between them, including their entitlements to various family assets and the conduct of family businesses.

We raise this background because, consistent with rule 5 and the purpose behind rules 62, 65, 66, 69(1)(b), 79, 178 and 192, the just and expeditious resolution of the real issues in dispute between Simon, Nick and Ben (in their own right and through their alter egos) is for those issues to be litigated together, or at least for the claims to be managed together for the time being.  Our client’s counterclaim seeks to do just that.

To set it aside and require our clients to bring it again, separately, with the likelihood that orders would in any event be made for it to at least be managed with Simon’s claim (even if not ultimately consolidated or heard together) is merely to delay and obfuscate with undue technicality, preventing the real issues in dispute from being resolved efficiently …

193. [193]
     As to the utility of the declaration, Ben referred to paragraph [67] of Simon’s statement of claim and his pleading, as a material fact at [63], that he “would not have entered into the Succession Deed had he believed that the effect of the Succession Deed would be that Ben … could ultimately own Colane …”  The relief sought was the recission of the transfer of shares by way of the striking through of the paragraphs in the deed dealing with the share transfer.  Ben argued that the legal effect of Simon’s pleading was to set aside part of the Succession Deed.  The corollary was the relief sought in the counterclaim – that is, a declaration that the Succession Deed is valid and enforceable in accordance with its terms. 
194. [194]
     Ben argued that cross-referring to the defence (rather than pleading the material facts in the counterclaim) was “orthodox”.  Ben argued that all parties to the deed, including Nick, Keith and Jennifer, were necessary parties to any attempt to set it aside or uphold its validity.
195. [195]
     Further, Ben and Northern Growers argued that, with respect to the oppression action, it was appropriately brought because it arose out of the subject matter of the primary proceeding (cf rule 178()(b)(ii))  That it was Northern Growers, and not Ben, who brought the counterclaim was said to be of no consequence: additional plaintiffs were regularly added by counterclaim.  And Northern Growers was Ben’s alter ego.  Northern Growers added that its position could be “regularised” by an application seeking an order formally joining Northern Growers to the proceedings
196. [196]
     As to the complaint about the narrative pleading, Ben and Northern Growers contended that they had pleaded a relevant factual narrative – theirs was not a narrative pleading.  They argued that they pleaded a “comprehensive actual narrative” in response to “an opaque statement of claim” to demonstrate to the plaintiff and the court that upon all the facts, the plaintiff’s claim is misguided.  They relied upon a statement by Bond JA made extra-judicially.  His Honour said (my emphasis):

… If, for example, a pleader is for the defendant and the plaintiff’s pleading is a shambles, the pleader may want to give consideration to starting the defence not simply by responding paragraph by paragraph to the shambles, but rather pleading an organised collection of material facts first.  Then, when the pleader gets to the responsible part of the pleading, he or she can plead by cross-reference back to something which makes sense.

197. [197]
     Ben and Northern Growers argued that their pleading was neither non-conventional nor impermissible and – having regard to the statement of claim – entirely proper.

Conclusion

198. [198]
     In my view, the oppression counterclaim must be struck out.  The requirements of the relevant rules have not been fulfilled.  It is not a claim brought by a defendant.  The putative oppression claim is a new and different claim by a new plaintiff (Northern Growers) against a suite of new defendants.  There is no relevant connection between it and Simon’s claim.  As I said in the context of my discussion of Ben’s application, the counterclaim is all about the conduct of the feedlot business.  And issues in the feedlot business arising years after the Succession Deed was signed have no bearing upon misrepresentations said to have been made in the lead up to the signing of the deed.  And – at the risk of repeating myself – it counters nothing in Simon’s claim.  Nor is it appropriate to treat the corporate defendants as – in effect – the equivalent of their directors, the brothers.  Indeed, were I to treat Northern Growers as Ben, he would have no standing to bring his counterclaim anyway. 
199. [199]
     In my view, it is appropriate to consider the claims in the counterclaim separately – following the approach of Margaret Wilson J and, for that matter, Cooke J.  On that approach, the claim for a declaration, even if I were to find it had utility, could not be used as some sort of device to validate the oppression claim as a counterclaim
200. [200]
     Having said that, in my view, the claim for a declaration is of no utility.  No one is suggesting that the Succession Deed is anything other than valid and binding – subject to Simon’s argument about one aspect of it.  But the parties are certainly of notice of Ben’s desire for a declaration, and Ben may make it upon the resolution of Simon’s claim via court proceedings.
201. [201]
     With respect to the complaints about the content of the counterclaim and the way it was pleaded: in my view, a narrative pleading per se is not necessarily liable to strike out.  But it must only plead material facts relevant to the relief claimed – and not, for example, evidence or irrelevant background.