Azad v Ljubas - [2007] QDC 18

DISTRICT COURT OF QUEENSLAND

CITATION:

Azad v Ljubas [2007] QDC 018

PARTIES:

PASTOR AZAD

Plaintiff

V

DAVID LJUBAS

Defendant

FILE NO/S:

Plaint 2780/91

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

2 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2007

JUDGE:

McGill DCJ

ORDER:

Application dismissed with costs.

CATCHWORDS:

JUDGMENTS AND ORDERS – Setting aside – consent judgment reflecting written settlement agreement – fraud not shown.

UCPR r 667(2)(b)
Cabassi v Vila (1940) 64 CLR 130 – applied.
Emanuel Management Pty Ltd v Fosters Brewing Group Ltd [2000] QSC 430 – applied.
Re de Groot [2001] 2 Qd R 359 – cited.
Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 – cited.
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 – cited.
Worrell v Power & Power (1993) 46 FCR 214 – cited.

COUNSEL:

The plaintiff appeared in person

A. S. Kitchin for the defendant

SOLICITORS:

The plaintiff was not represented

WHD Lawyers for the defendant

This is an application to set aside a judgment. On 4 December 2006 Griffin DCJ gave judgment that the defendant pay to the plaintiff $130,000 inclusive of the plaintiff’s standard costs of the action. That judgment was given after the judge was provided with a document, signed by the plaintiff in person and counsel for the defendant, which recorded that the plaintiff and the defendant had agreed to settle the action on the basis reflected in the judgment[1]. The plaintiff subsequently filed an application seeking to reopen the case, which I will treat as an application to set aside the judgment.
[1]This document is No 82 on the file.

History of the proceeding

The action has been on foot for a long time, having been commenced by a plaint filed on 15 August 1991, by which the plaintiff, who was then represented by solicitors, claimed $50,000 damages for personal injuries alleged to have been suffered on 24 November 1990 in a collision between a motor cycle being ridden by him and a utility driven by the defendant.[2] Although the entry of appearance and defence filed 4 September 1991 on behalf of the defendant denied negligence, for a long time liability has not been in issue and the only issue has been as to the quantum of the plaintiff’s damages.
[2]This history is largely taken from the court file.

The plaintiff has at times been represented by different solicitors, but during most of the time since the commencement of the action has not had a solicitor on the record. There was a notice of change of solicitors filed in September 1992, and another in November 1993, although those solicitors filed a notice of ceasing to act on 31 May 1995. In 1996, the plaintiff appearing in person sought leave to proceed which, however, was (on 29 March 1996) dismissed with an order that the plaintiff pay the defendant’s costs in any event.[3]
[3]Presumably leave was then unnecessary.

In 1996 the plaintiff applied to the Supreme Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azad v Ljubas

Details

AGLC: Azad v Ljubas [2007] QDC 18
Case: [2007] QDC 18
Decision Date: 2 March 2007

CaseChat Overview and Summary

The case of Azad v Ljubas involved a dispute between the plaintiff, Azad, and the defendant, Ljubas. The crux of the disagreement was whether a consent judgment should be set aside on the grounds of fraud. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to have the consent judgment rescinded, alleging that it was procured through fraudulent misrepresentations made by the defendant. The defendant, on the other hand, argued that the consent judgment was valid and should be upheld as it accurately reflected the terms of a written settlement agreement.

The court was required to determine whether the plaintiff had demonstrated that the consent judgment was obtained through fraud, and if so, whether the judgment should be set aside. The central issue revolved around the burden of proof on the plaintiff to establish fraud and whether the evidence presented was sufficient to meet this burden. The court also needed to consider the validity of the written settlement agreement and its correspondence with the consent judgment.

In its decision, the court held that the plaintiff had not provided sufficient evidence to establish that the consent judgment was procured by fraud. The plaintiff's arguments were largely based on circumstantial evidence and did not convincingly demonstrate that the defendant had made fraudulent misrepresentations. The court noted that the written settlement agreement was clear and unambiguous, and it was consistent with the terms of the consent judgment. As such, the court found no grounds to set aside the consent judgment. Consequently, the application to set aside the consent judgment was dismissed with costs awarded to the defendant.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Azad v Ljubas [2007] QDC 018
PARTIES:	PASTOR AZAD Plaintiff V DAVID LJUBAS Defendant
FILE NO/S:	Plaint 2780/91
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	2 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2007
JUDGE:	McGill DCJ
ORDER:	Application dismissed with costs.
CATCHWORDS:	JUDGMENTS AND ORDERS – Setting aside – consent judgment reflecting written settlement agreement – fraud not shown. UCPR r 667(2)(b) Cabassi v Vila (1940) 64 CLR 130 – applied. Emanuel Management Pty Ltd v Fosters Brewing Group Ltd [2000] QSC 430 – applied. Re de Groot [2001] 2 Qd R 359 – cited. Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 – cited. Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 – cited. Worrell v Power & Power (1993) 46 FCR 214 – cited.
COUNSEL:	The plaintiff appeared in person A. S. Kitchin for the defendant
SOLICITORS:	The plaintiff was not represented WHD Lawyers for the defendant