Breeton Pty Ltd v Capregan Pty Ltd - [2010] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

Breeton Pty Ltd v Capregan Pty Ltd & Ors [2010] QSC 170

PARTIES:

BREETON PTY LTD ACN 069 855 661
(applicant)
v
CAPREGIN PTY LTD ACN 050 412 863
(first respondent)
FIZRAY PTY LTD ACN 051 769 521
(second respondent)
WHITE RHINOS PTY LTD ACN 082 036 977
(third respondent)
RAPOONA PTY LTD ACN 010 071 940
(fourth respondent)
JAMES MORTIMER GORMAN
(fifth respondent)

FILE NO/S:

BS151 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application for stay by second and fifth respondents

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2010

JUDGE:

Alan Wilson J

ORDER:

Application dismissed

CATCHWORDS:

PRACTICE AND PROCEDURE – ENFORCEMENT OF JUDGMENTS – ENFORCEMENT OF MONEY ORDER – INHERENT JURISDICTION TO STAY OR SET ASIDE – where costs were awarded against second and fifth respondents in 2006 – where applicant applied to court for an enforcement hearing summons in 2010 – where second and fifth respondents allege enforcement of money order and hearing summons is an abuse of court’s process – whether enforcement order and enforcement summons should be stayed or set aside

Uniform Civil Procedure Rules 1999, r 494, r 737, r 800, r 807

Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458, considered
Carol v Jensen (1900) 10 QLJ 60, considered
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255, considered
Re Pacific Mobile Phone Pty Ltd [2008] QSC 210, distinguished
Williams v Spautz (1992) 174 CLR 509, applied

COUNSEL:

SD Anderson for the applicant/second & fifth respondents
IA Erskine for the respondent/applicant

SOLICITORS:

Walsh Halligan Douglas for the applicant/second & fifth respondents
Tucker & Cowan Solicitors for the respondent/applicant

In 2006, costs were awarded in these proceedings against the second respondent Fizray Pty Ltd and the fifth respondent James Mortimer Gorman. In 2009 the costs were assessed at $45,888.64, and a certificate of assessment issued[1]. On 23 September 2009 an order was made by a Deputy Registrar[2] that Fizray and Mr Gorman pay those costs. The amount of assessed costs then fell within the definition of a ‘money order’,[3] which could be enforced by the party entitled to the costs, Breeton Pty Ltd, under Chapter 19 of the Uniform Civil Procedure Rules 1999 (r 494: Enforcement of money orders).
[1]Under UCPR r 737.
[2]Under UCPR r 740
[3]Supreme Court of Queensland Act 1991, schedule 2.

On 9 March 2010 Breeton applied to the court for an enforcement hearing summons under r 807 against Mr Gorman, and a Ms Victoria Thompson. The rule provides that, at any time after a money order is made, the enforcement creditor may apply without notice for an enforcement hearing and the issue of an enforcement hearing summons. The summons issued, requiring the recipients to complete a statement of their financial positions and send it to Breeton within 14 days, and attend for an oral examination.…

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: [2010] QSC 170
Decision Date: 21 May 2010

CaseChat Overview and Summary

In the case of Breeton Pty Ltd v Capregan Pty Ltd, the applicant sought enforcement of a money order and hearing summons against the second and fifth respondents. The matter originated from a 2006 judgment where costs were awarded against the respondents. In 2010, the applicant applied for an enforcement hearing summons. The respondents argued that enforcement of the money order and hearing summons was an abuse of the court's process. The court was tasked with determining whether the enforcement order and summons should be stayed or set aside.

The primary legal issues involved the inherent jurisdiction of the court to stay or set aside an enforcement order and summons. The court considered whether the enforcement action constituted an abuse of process and whether the enforcement was barred by any relevant limitation periods or other legal principles. The court also examined the balance of convenience and the impact of the enforcement on the parties involved.

The court held that the enforcement of the money order and summons was not an abuse of process. It found that the respondents' arguments did not sufficiently establish grounds for staying or setting aside the enforcement. The court concluded that the enforcement was a legitimate exercise of its jurisdiction to ensure the proper execution of its orders. As a result, the application was dismissed, and the enforcement order and summons were allowed to proceed.

No further orders were made beyond the dismissal of the application. The court's decision underscored the importance of adhering to judicial orders and the court's authority to enforce its judgments. The dismissal affirmed the principle that the court's inherent jurisdiction could be exercised to ensure that its orders are not rendered futile.

Orders

Orders of the court

Application dismissed

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:	Breeton Pty Ltd v Capregan Pty Ltd & Ors [2010] QSC 170
PARTIES:	BREETON PTY LTD ACN 069 855 661 (applicant) v CAPREGIN PTY LTD ACN 050 412 863 (first respondent) FIZRAY PTY LTD ACN 051 769 521 (second respondent) WHITE RHINOS PTY LTD ACN 082 036 977 (third respondent) RAPOONA PTY LTD ACN 010 071 940 (fourth respondent) JAMES MORTIMER GORMAN (fifth respondent)
FILE NO/S:	BS151 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application for stay by second and fifth respondents
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2010
JUDGE:	Alan Wilson J
ORDER:	Application dismissed
CATCHWORDS:	PRACTICE AND PROCEDURE – ENFORCEMENT OF JUDGMENTS – ENFORCEMENT OF MONEY ORDER – INHERENT JURISDICTION TO STAY OR SET ASIDE – where costs were awarded against second and fifth respondents in 2006 – where applicant applied to court for an enforcement hearing summons in 2010 – where second and fifth respondents allege enforcement of money order and hearing summons is an abuse of court’s process – whether enforcement order and enforcement summons should be stayed or set aside Uniform Civil Procedure Rules 1999, r 494, r 737, r 800, r 807 Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458, considered Carol v Jensen (1900) 10 QLJ 60, considered JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255, considered Re Pacific Mobile Phone Pty Ltd [2008] QSC 210, distinguished Williams v Spautz (1992) 174 CLR 509, applied
COUNSEL:	SD Anderson for the applicant/second & fifth respondents IA Erskine for the respondent/applicant
SOLICITORS:	Walsh Halligan Douglas for the applicant/second & fifth respondents Tucker & Cowan Solicitors for the respondent/applicant