Bird v McComb (No 4)

Case [2012] FCA 270

FEDERAL COURT OF AUSTRALIA

Bird v McComb (No 4) [2012] FCA 270

Citation: Bird v McComb (No 4) [2012] FCA 270
Parties: SUZANNE CHRISTINE BIRD v JOHN EDMUND MCCOMB, BRIMIN GEM PTY LTD (ACN 056 330 333), SCB HOLDINGS PTY LTD (ACN 085 917 371), CARRIAGES PTY LTD (ACN 063 116 852), NEWTOUN PTY LTD (ACN 006 858 788) and AUSTRAL PACIFIC QUEENSLAND PTY LTD AS TRUSTEE OF THE BM FAMILY TRUST
File number: QUD 10 of 2011
Judge: COLLIER J
Date of judgment: 22 March 2012
Catchwords: PRACTICE AND PROCEDURE – compromise of proceedings – settlement agreement entered into by parties – breach of settlement agreement by defendants – parties to proceeding same as parties to settlement agreement – previous order of Court granting liberty to apply – plaintiff seeks orders for judgment in proceeding – r 26.01(1) Federal Court Rules 2011 – jurisdiction of Court to determine claim pursuant to s 22 Federal Court of Australia Act 1976 (Cth) – reasonable avenues of recovery – interest payable pursuant s 51A and s 52 Federal Court of Australia Act 1976 (Cth) – indemnity costs – s 43 Federal Court of Australia Act 1976 (Cth) – special or unusual feature in case justifying Court exercising discretion
Legislation: Federal Court of Australia Act 1976 (Cth) ss 22, 43, 51A, 52
Federal Court Rules 2011 rr 4.01(2), 26.01(1)(e)
Cases cited: ACT Cross Country Club Inc v Cundy (t/as Cundy Sports Marketing) [2010] FCA 782 cited
AG Cowley Holdings Pty Ltd v Central City Pty Ltd [2010] FCA 199 cited
Bird v McComb [2011] FCA 129 cited
Bird v McComb (No 2) [2011] FCA 507 cited
Bird v McComb (No 3) [2011] FCA 697 cited
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 cited
Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 cited
Needlework Warehouse Pty Ltd v Chansonette Pty Ltd [2005] 226 ALR 252 cited
Pallas v Finlay (1985) 61 ALR 220 cited
Reid v Interarch Australia Pty Ltd [2000] FCA 1328 cited
Date of hearing: 20 February 2012
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 35
Solicitor for the Plaintiff: Mr PG Mylne of Mylne Lawyers
Solicitor for the First, Second, Third, Fourth, Fifth and Sixth Defendants: Mr CA Cooper of Charles Cooper Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 10 of 2011
BETWEEN:

SUZANNE CHRISTINE BIRD
Plaintiff
AND:

JOHN EDMUND MCCOMB
First Defendant

BRIMIN GEM PTY LTD (ACN 056 330 333)
Second Defendant

SCB HOLDINGS PTY LTD (ACN 085 917 371)
Third Defendant

CARRIAGES PTY LTD (ACN 063 116 852)
Fourth Defendant

NEWTOUN PTY LTD (ACN 006 858 788)
Fifth Defendant

AUSTRAL PACIFIC QUEENSLAND PTY LTD AS TRUSTEE OF THE BM FAMILY TRUST
Sixth Defendant

JUDGE:

COLLIER J

DATE OF ORDER:

22 MARCH 2012

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Judgment be and hereby is entered for the plaintiff in the sum of six hundred and seventy five thousand dollars ($675,000) against the first defendant,…

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Bird v McComb (No 4) [2012] FCA 270
Case
[2012] FCA 270
Decision Date

CaseChat Overview and Summary

In Bird v McComb (No 4), the plaintiff sought a judgment for the sum of $675,000 against the defendants for breach of a settlement agreement. The case arose from a previous settlement agreement that had been compromised between the parties. The primary legal issues before the court were whether the requirements of the settlement agreement had been met and if the court had jurisdiction to enforce the settlement agreement. The court found that the requirements of the settlement agreement had been met and that the court had jurisdiction to enforce the settlement agreement under the Federal Court of Australia Act 1976.

The court examined the evidence presented by the plaintiff and found that the requirements of the settlement agreement had been fulfilled. The court noted that the defendants had not disputed the evidence presented by the plaintiff. The court also found that it had jurisdiction to enforce the settlement agreement under section 22 of the Federal Court of Australia Act 1976. The court cited the decision of the Full Court in Darling Downs Investments Pty Ltd v Ellwood as authority for its jurisdiction to enforce the settlement agreement. The court concluded that it was appropriate to grant the plaintiff's claim for judgment in the sum of $675,000 against the defendants.

The court ordered that judgment be entered for the plaintiff in the sum of $675,000 against the defendants, jointly and severally. The judgment was to be stayed against the first defendant for a period of 7 days from the date of the judgment. The court also ordered that the defendants pay interest on the judgment debt pursuant to sections 51A and 52 of the Federal Court of Australia Act 1976. Finally, the court ordered that the defendants pay the costs of the plaintiff of and incidental to the hearing of 20 February 2012 on an indemnity basis, to be assessed if not otherwise agreed.

Orders

Orders of the court

1. Judgment be and hereby is entered for the plaintiff in the sum of six hundred and seventy five thousand dollars ($675,000) against the first defendant, jointly and severally with the second, third, fourth, fifth and sixth defendants, such judgment to be stayed against the first defendant for a period of 7 days from the date of this judgment.

2. The defendants pay interest on the judgment debt pursuant to s 51A and s 52 of the Federal Court of Australia Act 1976 (Cth).

3. The defendants pay the costs of the plaintiff of and incidental to the hearing of 20 February 2012 on an indemnity basis, to be assessed if not otherwise agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 23 February 2012, in light of the dispute between the parties concerning the existence of evidence relevant to Recitals B, C and D of the Settlement Agreement, I made directions from Chambers regarding the filing of further evidence by the parties.Further evidence filed by Mr Mylne on 1 March 2012 On 1 March 2012 Mr Mylne filed an additional affidavit in response to my directions of 23 February 2012. In that affidavit Mr Mylne deposed, so far as relevant:4. The Deed of Settlement, for convenience, is attached hereto as “PGM-1”.5. Recital B states:upon the first defendant on behalf of Brimin Gem and/or Austral Pacific (as trustee or otherwise) acquiring valuations in respect of Lot 18 Taroona Court, Mt Eliza in the State of Victoria, 2 Mackeith Court, Mt Eliza in the State of Victoria, 3 Mackeith Court, Mt Eliza in the State of Victoria (“The Properties”); andI reasonably believe that on 27 July 2011 the solicitors for the proposed mortgagee obtained a valuation of:18 Taroona Court, Mt Eliza;2 Mackeith Court, Mt Eliza;3 Mackeith Court, Mt Elizain compliance with Recital B. Attached hereto and marked “PGM-2” is a true and correct copy of the valuations under covering letter from Carrol and Dillon dated 17 August 2011.6.Recital C states:Upon the presentation of those valuations to Messrs Mylne Lawyers at 92 Ashmore Road, Bundall in the State of Queensland, demonstrating the existence of sufficient equity in the properties to satisfy payment to the plaintiff of the sum of $675,000.00 (the ‘Settlement Sum’); andEach of the properties had the following loans and valuations: No material was filed by the defendants in respect of this issue.ConsiderationDraft orders 1 and 2 In light of Mr Mylne’s concession that no order need be made by the Court joining Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd in their capacities as trustees of the B.M Family Trust as respondents to this proceeding, I do not propose to make the orders sought in paragraphs 1 and 2 of the draft submitted by Mr Mylne. In any event, I note that on 18 April 2011 Greenwood J ordered that Austral Pacific Queensland Pty Ltd as trustee of the B.M Family Trust be joined in the proceedings as the sixth defendant.Draft orders 3, 4 and 5 In relation to her claim that judgment be entered for her in the sum of $675,000 against the defendants, it appears that Ms Bird relies on r 26.01(1)(e) of the Federal Court Rules 2011, which entitles a party to apply to the Court for an order for summary judgment where the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. The evidence of Mr Mylne in his affidavit affirmed 1 March 2012 is not disputed by the defendants. I am satisfied, following an examination of Mr Mylne’s affidavit and the annexures thereto, that the requirements of Recitals B, C and D of the Settlement Agreement have been complied with. It is clear that the proceedings before the Court were compromised in the Settlement Agreement executed 20 July 2011. There is no suggestion that the Federal Court has no jurisdiction to entertain Ms Bird’s claim that she is entitled to invoke the aid of the Court in enforcing the terms of the Settlement Agreement. Indeed, following the decision of the Full Court in Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 it is clear that the Court has jurisdiction to entertain and determine such a claim pursuant to powers conferred by s 22 of the Federal Court of Australia Act 1976 (Cth). The terms of that section, which have remained unchanged since the decision in Ellwood, are as follows:Determination of matter completely and finally22. The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

No material was filed by the defendants in respect of this issue.ConsiderationDraft orders 1 and 2 In light of Mr Mylne’s concession that no order need be made by the Court joining Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd in their capacities as trustees of the B.M Family Trust as respondents to this proceeding, I do not propose to make the orders sought in paragraphs 1 and 2 of the draft submitted by Mr Mylne. In any event, I note that on 18 April 2011 Greenwood J ordered that Austral Pacific Queensland Pty Ltd as trustee of the B.M Family Trust be joined in the proceedings as the sixth defendant.Draft orders 3, 4 and 5 In relation to her claim that judgment be entered for her in the sum of $675,000 against the defendants, it appears that Ms Bird relies on r 26.01(1)(e) of the Federal Court Rules 2011, which entitles a party to apply to the Court for an order for summary judgment where the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. The evidence of Mr Mylne in his affidavit affirmed 1 March 2012 is not disputed by the defendants. I am satisfied, following an examination of Mr Mylne’s affidavit and the annexures thereto, that the requirements of Recitals B, C and D of the Settlement Agreement have been complied with. It is clear that the proceedings before the Court were compromised in the Settlement Agreement executed 20 July 2011. There is no suggestion that the Federal Court has no jurisdiction to entertain Ms Bird’s claim that she is entitled to invoke the aid of the Court in enforcing the terms of the Settlement Agreement. Indeed, following the decision of the Full Court in Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 it is clear that the Court has jurisdiction to entertain and determine such a claim pursuant to powers conferred by s 22 of the Federal Court of Australia Act 1976 (Cth). The terms of that section, which have remained unchanged since the decision in Ellwood, are as follows:Determination of matter completely and finally22. The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided. In Ellwood the facts before the Court – which in a general sense resemble those before me – were summarised by Pincus and Einfeld JJ at 520-521 as follows:A purchaser under contracts for sale of land paid the total price, but received no conveyance. Subsequently, asserting that he had been misled, the purchaser claimed damages including the price, by proceedings brought under the Trade Practices Act 1974 (Cth). The respondent vendor agreed to pay $77,500 “all up”, and the matter was settled on that basis; being so informed, Pincus J adjourned the case to the Registrar. Subsequently, the vendor, not giving any substantive reason, reneged on the settlement and Spender J gave judgment in the proceedings for the agreed sum, less $20,000 which had been paid under the compromise.