Bechara v Sotrip Pty Ltd (In Liquidation) (No. 2) - [2013] QSC 160

SUPREME COURT OF QUEENSLAND

CITATION:

Bechara v Sotrip Pty Ltd (In Liquidation) (No. 2) [2013] QSC 160

PARTIES:

BUDDY BECHARA
(plaintiff)

V

SOTRIP PTY LTD (IN LIQUIDATION)
ACN 085 132 378
(first defendant)

AND

RELIANCE FINANCIAL SERVICES PTY LTD
ACN 003 478 966
(second defendant)

AND

SOTRIP NSW PTY LTD
ACN 139 174 744
(third defendant)

AND

RELIANCE FINANCIAL SERVICES PTY LTD (NSW)
ACN 131 889 766
(fourth defendant)

AND

STEPHEN BAKER, AS LIQUIDATOR OF SOTRIP PTY LTD (IN LIQUIDATION)
ACN 085 132 378
(further applicant)

FILE NO/S:

BS 9372 of 2006

DIVISION:

Trial

PROCEEDING:

Oral application and application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2013

JUDGE:

Jackson J

ORDERS:

1.   Application to dismiss the amended application filed on 24 May 2013 is dismissed.

2.   Application to set aside paragraph 1 of the order of McMurdo J made on 17 April 2013 is dismissed.

3.   Direct the parties to make brief submissions in writing as to costs forthwith.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PAYMENT INTO AND OUT OF COURT – where the proceeds of sale were paid into the court – where an order of the court was made to pay out and retain part of the money “subject to further order” – where two subsequent orders dealt with the monies in court – where parties seek to vacate the initial order – whether an order of the court that is “subject to further order” can or should be vacated – whether the court should exercise its inherent jurisdiction to vary the order

Uniform Civil Procedure Rules 1999 (Qld), r 560, r 561, r 667, r 882

13 Coromandel Place Pty Ltd v C L Custodians Pty Ltd (In liquidation)[1999] FCA 144; (1999) 30 ACSR 377, cited

Bechara v Sotrip Pty Ltd (in liquidation)[2013] QSC 100, cited
Duncan (as trustee for the bankrupt estate of Garrett) v National Australia Bank Limited [2006] SASC 239; (2006) 235 ALR 385, cited
JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501, followed
McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd & Anor [2008] QCA 410, cited

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, cited

Re: Crown Meats Pty Ltd (In liquidation)[2013] VSC 118, cited

Re: Universal Distributing Co Ltd (In liquidation) [1933] HCA 2; (1933) 48 CLR 171, cited

COUNSEL:

P Tucker for the first defendant and further applicant
M Ashurst SC & JC Ashcroft for the third and fourth defendants

SOLICITORS:

Brown and Partners Solicitors for the first defendant and further applicant
Dib Lawyers for the third and fourth defendants

JACKSON J: By the amended application filed on 24 May 2013 (“amended application”), the first defendant and further applicant apply for the following orders:

“1. That…

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.

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Details

Case: [2013] QSC 160
Decision Date: 19 June 2013

CaseChat Overview and Summary

In the matter of Bechara v Sotrip Pty Ltd (In Liquidation) (No. 2), the court was tasked with addressing the payment of proceeds from a sale into court and the subsequent orders concerning those funds. The dispute involved the interpretation and effect of an order made by McMurdo J on 17 April 2013, which directed that a portion of the funds be paid out and retained "subject to further order." The parties subsequently sought to vacate this initial order, raising questions about the nature and permanence of an order that is "subject to further order" and whether the court has the inherent jurisdiction to modify such an order.

The legal issues before the court included the extent to which an order made "subject to further order" can be vacated and the court's authority to exercise its inherent jurisdiction to vary such an order. The court had to consider the procedural context of the Uniform Civil Procedure Rules and their predecessors, as well as the principles governing the retention and disbursement of funds in court. It was essential to determine whether the initial order was final or merely provisional, given its phraseology.

The court determined that the initial order of McMurdo J, while made "subject to further order," did not permit its vacation or alteration. The court found that the phrase "subject to further order" did not render the order provisional but rather indicated that further instructions would be provided concerning the disposition of the funds. Consequently, the application to vacate the order was dismissed, and the court directed the parties to submit written submissions regarding the costs of the application. The inherent jurisdiction of the court was not exercised to vary the order, reinforcing the finality of the original directive in the circumstances presented.

Orders

Orders of the court

1. Application to dismiss the amended application filed on 24 May 2013 is dismissed.

2. Application to set aside paragraph 1 of the order of McMurdo J made on 17 April 2013 is dismissed.

3. Direct the parties to make brief submissions in writing as to costs forthwith.

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:	Bechara v Sotrip Pty Ltd (In Liquidation) (No. 2) [2013] QSC 160
PARTIES:	BUDDY BECHARA (plaintiff) V SOTRIP PTY LTD (IN LIQUIDATION) ACN 085 132 378 (first defendant) AND RELIANCE FINANCIAL SERVICES PTY LTD ACN 003 478 966 (second defendant) AND SOTRIP NSW PTY LTD ACN 139 174 744 (third defendant) AND RELIANCE FINANCIAL SERVICES PTY LTD (NSW) ACN 131 889 766 (fourth defendant) AND STEPHEN BAKER, AS LIQUIDATOR OF SOTRIP PTY LTD (IN LIQUIDATION) ACN 085 132 378 (further applicant)
FILE NO/S:	BS 9372 of 2006
DIVISION:	Trial
PROCEEDING:	Oral application and application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	19 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2013
JUDGE:	Jackson J
ORDERS:	1. Application to dismiss the amended application filed on 24 May 2013 is dismissed. 2. Application to set aside paragraph 1 of the order of McMurdo J made on 17 April 2013 is dismissed. 3. Direct the parties to make brief submissions in writing as to costs forthwith.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PAYMENT INTO AND OUT OF COURT – where the proceeds of sale were paid into the court – where an order of the court was made to pay out and retain part of the money “subject to further order” – where two subsequent orders dealt with the monies in court – where parties seek to vacate the initial order – whether an order of the court that is “subject to further order” can or should be vacated – whether the court should exercise its inherent jurisdiction to vary the order Uniform Civil Procedure Rules 1999 (Qld), r 560, r 561, r 667, r 882 13 Coromandel Place Pty Ltd v C L Custodians Pty Ltd (In liquidation)[1999] FCA 144; (1999) 30 ACSR 377, cited Bechara v Sotrip Pty Ltd (in liquidation)[2013] QSC 100, cited Duncan (as trustee for the bankrupt estate of Garrett) v National Australia Bank Limited [2006] SASC 239; (2006) 235 ALR 385, cited JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501, followed McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd & Anor [2008] QCA 410, cited Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, cited Re: Crown Meats Pty Ltd (In liquidation)[2013] VSC 118, cited Re: Universal Distributing Co Ltd (In liquidation) [1933] HCA 2; (1933) 48 CLR 171, cited
COUNSEL:	P Tucker for the first defendant and further applicant M Ashurst SC & JC Ashcroft for the third and fourth defendants
SOLICITORS:	Brown and Partners Solicitors for the first defendant and further applicant Dib Lawyers for the third and fourth defendants