AMA v CDK

[2009] QSC 287

SUPREME COURT OF QUEENSLAND

CITATION:

AMA v CDK & Ors [2009] QSC 287

PARTIES:

AMA
(applicant)
v
CDK
(first respondent)
S HOLDINGS PTY LTD AS TRUSTEE FOR THE
S HOLDINGS TRUST
(second respondent)
and
CDK AS TRUSTEE FOR THE C TRUST
(third respondent)
and
S INVESTMENT PTY LTD AS TRUSTEE FOR THE
S INVESTMENT TRUST

(fourth respondent)

FILE NO/S:

BS 10180 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2009

JUDGE:

Applegarth J

ORDER:

1. The application is dismissed.
2. The applicant pay the costs of the second and fourth respondents of and incidental to the application to be assessed.

3. The applicant pay CL’s costs of and incidental to the application to be assessed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where the applicant applies to vary or set aside orders – where there is substantial delay in making the application – whether grounds exist to set aside orders under Uniform Civil Procedure Rules 1999 (Qld) r 667(2) or r 668 or in the exercise of the court’s inherent jurisdiction – whether the orders were obtained “in the absence of” the applicant in circumstances in which she was represented by counsel and solicitors – whether the orders were obtained by fraud – whether the “slip rule” applies – whether new facts have arisen or been discovered since the making of the orders that entitle the application to have the orders set aside

Uniform Civil Procedure Rules, r 667(1), r 667(2), r 668

CDK & Orsv AMA [2009] QSC 190, cited
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, cited
Emanuel Management Pty Ltd v Foster’s Brewing Group Ltd [2000] QSC 430, cited
IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428, applied
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 37 FCR 234, applied
Spoule v Long [2001] 2 Qd R 335, cited
Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435, cited
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, applied
Wentworth v Wentworth [1999] NSWSC 638, applied

WMJ Attractions Pty Ltd v Ireland [2008] QSC 167, cited

COUNSEL:

The applicant represented herself
N R Delaney (sol) for the second and fourth respondent
G Handran for the non-party, CL

SOLICITORS:

The applicant represented herself

Lillas & Loel Lawyers for the second and fourth respondent
Proctor Phair Lawyers for the non-party, CL

1. The applicant seeks a variety of orders in connection with the enforcement of orders made in her favour in October 2007 in de facto property proceedings against the respondents.  The first is to set aside a costs order made by Lyons J on 26 November 2008 (“the costs order”).  The costs order was:

“That the applicant and the respondents bear their own costs of the application, and the applicant…