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, citedPort 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 defendantsSOLICITORS:
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…
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- Case
- [2013] QSC 160
- Decision Date
CaseChat Overview and Summary
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
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Ratio Decidendi
Legal Principle Established
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