Case: Vintage Developments Pty Ltd v GHD Pty Ltd (No 2) [2006] FCA 1437
Outcome: discussed
Developments Pty Ltd v GHD Pty Ltd (No 2) [2006] FCA 1437 involved a successful application to amend the capacity in which an application and statement of claim had been filed from "Errol Investments Pty Ltd" to "Errol Investments Pty Ltd as Trustee for the Shellharbour Unit Trust". Evidence was adduced of minutes of a meeting of the company resolving that the contract to purchase land would be executed by the company in its capacity as trustee of the Shellharbour Unit Trust as well as a contract for the sale of land that in one place, at least, referred to the purchaser as Errol Investments Pty Ltd as Trustee for the Shellharbour Property Trust. The judge was satisfied that the reference should have been to the Shellharbour Unit Trust. It is contended by the defendants that if Liquid was acting in its capacity as trustee of the Sharp Family Trust when it carried out the actions pleaded in paras [59]-[72] of the Substituted Statement of Claim, then it should have copies of the minutes of meetings, recording decisions to purchase properties, copies of the contracts for the sale and purchase of the properties referred to in the Substituted Statement of Claim, bank documents recording the application for facilities to be provided to Liquid, in its capacity as trustee of the Sharp Family Trust, relating to the property acquisitions and other tax and trust records. No such evidence has been put before the Court in this case. I do not consider this to be fatal to the application. Mr Sharp has deposed, in effect, that Liquid was incorporated as a sole purpose vehicle and never acted other than in its capacity as trustee of the Sharp Family Trust. There was no cross-examination upon his affidavit. He was at all material times, the sole director and shareholder of Liquid. I am satisfied, for present purposes that the position is as deposed to by him. There was certainly nothing inherently improbable about his assertions nor are they inconsistent with any document which is before the Court. Liquid is deregistered. Mr Sharp was appointed trustee in its place nearly seven weeks prior to its deregistration. Liquid is not practically the "party" referred to in O 13 r 2(6). I infer that it was by some oversight that the proceedings were not brought by Liquid in its capacity as trustee. Had that occurred, then Mr Sharp would simply be seeking to be substituted for Liquid because he had been appointed as the new trustee on 8 September 2005. I regard Mr Sharp as, in effect, being the "party" for the purposes of O 13 r 2(6). There will be an order that Mr Sharp, as trustee for the Sharp Family Trust, be substituted as the second plaintiff. I will hear the parties on the question of security for costs and otherwise invite the parties to bring in a draft minute of proposed orders to give effect to these reasons. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 19 June 2008 Counsel for the Plaintiff: Mr A Rumsley Solicitor for the Plaintiff: Alan Rumsley-Commercial Dispute Lawyer Counsel for the Defendant: Ms K F Banks-Smith Solicitor for the Defendant: Freehills Date of Hearing: 7 February 2008 Date of Judgment: 19 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/927.html