Mulhern v Bank of Queensland [2015] FCA 44

Mulhern v Bank of Queensland [2015] FCA 44

The statement of claim failed to disclose any reasonable cause of action for any plaintiff other than Mr and Mrs Mulhern, and in their case, any cause of action in contract or estoppel had vested in their trustees in bankruptcy. The claims were either an abuse of process, sought to challenge prior final orders, or were not maintainable due to standing. Since no sufficient factual basis or cause of action was identified, and the defects could not be cured by amendment, the statement of claim was struck out and proceedings summarily dismissed for the first and third to tenth plaintiffs; some claims by the second and eleventh plaintiffs were also dismissed or stayed due to bankruptcy.

Parties
First Plaintiff: Emer Marie Mulhern; Second Plaintiff: Jacqueline Patricia Mulhern; Third Plaintiff: Pinnacle Industries 11 LLC; Fourth Plaintiff: Andrew Quinert t/as Andrew Q Property Management; Fifth Plaintiff: Mulhern Builders Ltd IRE; Sixth Plaintiff: Celtic Pacific Contractors LLIC; Seventh Plaintiff: Emerald Hervey Bay Developments Pty Ltd; Eighth Plaintiff: Toowong Prime Investments Pty Ltd; Ninth Plaintiff: Mulhern's Properties Inc; Tenth Plaintiff: Cougan Corporation Pty Ltd; Eleventh Plaintiff: Michael Richard Mulhern; Defendant: Bank of Queensland
Jurisdiction
Australia
Judgment Date
05 February 2015
Procedural Posture
Application for Summary Judgment and Strike Out of Statement of Claim / Interlocutory Application Determined, Judgment Delivered
Outcome
Statement of claim struck out; judgment for defendant against identified plaintiffs; certain proceedings stayed; other claims dismissed as abuse of process.
Legal Topics
Summary Judgment, Abuse of Process, Bankruptcy and Standing, Striking Out Pleadings
Practice and Procedure Bankruptcy Summary Judgment Abuse of Process Bankruptcy and Standing Striking Out Pleadings

Case Brief

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Parties

Emer Marie Mulhern

First Plaintiff

Jacqueline Patricia Mulhern

Second Plaintiff

Pinnacle Industries 11 LLC

Third Plaintiff

Andrew Quinert t/as Andrew Q Property Management

Fourth Plaintiff

Mulhern Builders Ltd IRE

Fifth Plaintiff

Celtic Pacific Contractors LLIC

Sixth Plaintiff

Emerald Hervey Bay Developments Pty Ltd

Seventh Plaintiff

Toowong Prime Investments Pty Ltd

Eighth Plaintiff

Mulhern's Properties Inc

Ninth Plaintiff

Cougan Corporation Pty Ltd

Tenth Plaintiff

Michael Richard Mulhern

Eleventh Plaintiff

Bank of Queensland

Defendant

Procedural Posture

Application for Summary Judgment and Strike Out of Statement of Claim / Interlocutory Application Determined, Judgment Delivered

Legal Issues

  1. 1 Whether plaintiffs have no reasonable prospect of successfully prosecuting the proceeding
  2. 2 Whether any reasonable cause of action is disclosed by the statement of claim
  3. 3 Whether the proceedings are an abuse of process due to collateral attack on previous court orders

Ratio Decidendi

The statement of claim failed to disclose any reasonable cause of action for any plaintiff other than Mr and Mrs Mulhern, and in their case, any cause of action in contract or estoppel had vested in their trustees in bankruptcy. The claims were either an abuse of process, sought to challenge prior final orders, or were not maintainable due to standing. Since no sufficient factual basis or cause of action was identified, and the defects could not be cured by amendment, the statement of claim was struck out and proceedings summarily dismissed for the first and third to tenth plaintiffs; some claims by the second and eleventh plaintiffs were also dismissed or stayed due to bankruptcy.

Court Disposition

Statement of claim struck out; judgment for defendant against identified plaintiffs; certain proceedings stayed; other claims dismissed as abuse of process.

Orders

  • The statement of claim be struck out in its entirety.
  • Judgment be given for the defendant against each of the first and third to tenth plaintiffs.