Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd
[1990] FCA 356
•26 Apr 1990
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JUDGMENT NO. ........ ..... . 3 5 6 7%- , . , . , .
IN THE FEDERAL COURT OF AUSTRALIA 1 QLD G198 of 1986 QUEENSLAND DISTRICT REGISTRY 1 GENERAL DIVISION 1
BETWEEN: CABOOLTURE PARK SHOPPING CENTRE PTY LTD
Applicant
AND: WHITE INDUSTRIES (OLD) PTY LTD
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 2 6 APRIL 1990 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application by Messrs Hodgson and Cornell be dismissed;
2. The applicants, Messrs Hodgson and Cornell, pay the costs of and incidental to today's application incurred by White Industries (Queensland) Pty Ltd, to be taxed.
=E: Settlement and entry of orders is dealt with in Order 3 6 of
the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA QLD G198 of 1986
| I | QUEENSLAND DISTRICT REGISTRY |
| i | GENERAL DIVISION |
| ! |
BETWEEN: CABOOLTURE PARK SHOPPING CENTRE PTY LTD
Applicant
AND: WHITE INDUSTRIES (OLD) PTY LTD
Respondent
PINCUS J. 26 APRIL 1990
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EX TEMPORE REASONS FOR JUDGMENT
This is an application by Messrs A.G. Hodgson and A.N. Cornell who, I am informed, are receivers and managers of Hersfield Development Corporation Pty Ltd. Mr Quinn has applied on behalf of Messrs Hodgson and Cornell for relief against an order which I made on Monday, 23 April. He asks that the order be stayed to enable his applicants to produce material which would enable the Court to grant more substantial relief in their
favour . The sequence of events is as follows: in 1986, Caboolture Park Shopping Centre Pty Ltd, which I shall call "Caboolture Park", sued White Industries (Qld) Pty Ltd, which I shall call "White Industries", alleging contravention of s.52 of
the Trade Practices Act, fraudulent misrepresentation, and other wrongs. The claim was defended, and a cross-claim was made by White Industries against Caboolture Park for moneys due in respect of building work.
The case was tried before Ryan J., and the hearing
concluded in August 1989. In the meantime, in July 1988, moneys were paid into Court by Caboolture Park to meet the cross-claim.
On 6 April 1990, Ryan J. gave judgment in favour of White Industries against Caboolture Park in the sum of about $5,500,000, with costs. On 23 April, on the application of White Industries, I ordered that the sum in Court, a sum in excess of over $700,000, together with accretions, be paid out to White Industries in partial satisfaction of the judgment.
Mr Quinn says that the parties for whom he appears, Messrs Hodgson and Cornell, have an interest in the matter in one or both of two ways: firstly, he says that his instructions are that the money which was paid into Court in July 1988
belonged to Hersfield Development Corporation Pty Ltd, which I shall call "Hersfield". He submits that if the evidence which he expects to be able to obtain is tendered, there will be room for a finding that IIersfield owned the money when it was paid into Court, and continued to have an interest in the money, which entitles Messrs Hodgson and Cornell to pursue an application to prevent the payment out, which I ordered on Monday.
The second basis upon which Mr Quinn says that Messrs Hodgson and Cornell have an interest is that he says it may be that the payment in, in July 1988, was a preference, and he says that Hersfield has, as a mortgagee or the holder of some other security interest, security over the right to recover the money from Court.
An application of rather similar kind was heard by me last year, and is reported in 90 ALR 589. I delivered judgment on 10 November 1989. That was an application by Caboolture Park, by a llr J.D. Anderson, who was receiver and manager of Caboolture Park, and by the Australia and New Zealand Banking Group Limited, which was a mortgagee. I held, in substance, that those applicants had no interest in the moneys in Court which they could assert by getting an order for payment out, and that the money should stay in Court to await the outcome of the litigation. It did stay in Court, and the litigation had an outcome favourable to White Industries, and, as I have
mentioned, I ordered it to be paid out to that company. It appears to me that the claim that Hersfield is the owner of the money has some legal difficulties about it. As has been pointed out on behalf of White Industries, the Rules contemplate that a party shall bring money into Court; so that, assuming the money was provided by Hersfield, it must have been brought in by Caboolture Park. The status it then had is, if my
| I | judgment in the previous matter be right, that the party paying |
| I | |
| it in had parted outright with it, in accordance with the views of Oliver L.J. in Peal Furniture CO Ltd v. Adrian Share (Interiors) Ltd [l9771 1 WLR 464, referred to at pp.592 and 593. Quoting from that decision, I went on to say: |
"The money becomes subject entirely to whatever order
the court may see fit to make ...
Now, Mr Quinn says that, as the owner, Hersfield must have some interest in the money. It seems to me that the contention ignores the fact that Hersfield plainly, on his instructions, agreed to the money being used for this purpose, and, if I am right, agreed to its being subjected to the Court's order.
The decision which I gave in the previous application, decided in November last year is, in the result, entirely inconsistent with the contention which is now made, and that contention seems to me, in any event, to be fundamentally
wrong. It cannot be the case that a defendant or respondent can obtain moneys from another person, pay it into Court, and the other person, whose existence is entirely unknown to the other side, then has some right over the moneys superior to that of the party. Its right must be under and subordinate to that of the party paying in, and the right of the party paying in has already been the subject of my judgment on 10 November 1989.
The second basis upon which Mr Quinn puts the matter, viz. the supposed preference, seems to me to have no substance. If the payment in was a preference, then the party to say so is, obviously, the party in whose winding up the preference could be recovered.
Mr Quinn thinks that Caboolture Park has been wound up, and Mr Fraser thinks it has not, but, whether it has been wound up or not, it is plain that a mere security holder (that is, a mortgagee from Caboolture Park) cannot bring a suit to recover a preference, or bring an application to stay the order with a view to ultimately recovering the preference.
The position of Messrs Hodgson and Cornell, it must be noted, is not made difficult merely by the fact that they are not Caboolture Park. They are not even Hersfield. Mr Quinn, with his customary candour, made it clear that he does not claim to have any instructions from Hersfield. He is acting for Messrs Hodgson and Cornell, it appears, as representatives of
creditors of Hersfield. How the creditors of Hersfield could
possibly have a right to the money of a superior kind to that of
Caboolture Park is not clear.
I would, if I thought that the matters raised were seriously arguable, stay the order which I made on Monday to allow the evidence to be adduced and the matter to be argued more fully. I note, however, that doing so would be rather
| ! | generous, because the money was paid into Court, now, nearly two years ago. Hersfield, as Mr Fraser points out, must have been aware it was in Court. The litigation was going on. Hersfield was apparently content to let the money sit there and be disposed of in the ordinary way. | |
| The evidence in the previous case showed that it was known, at the conclusion of the hearing in August last year, that there was going to be a judgment against Caboolture Park but Hersfield did nothing to recover its money. Caboolture Park lost the case, as expected; the only real dispute was as to amount. | ||
| In my view, the foreshadowed claim is without substance and the application by Messrs Hodgson and Cornell will be dismissed, that is, I decline to stay the order which I made on 23 April 1990. | ||
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| because the matter has been litigated with what might be described as minimum trouble so far as White Industries are concerned. They have not had to put any material or to read any. They have simply come here to instruct counsel. | ||
| I | The order will be that Messrs Hodgson and Cornell pay | |
| i | the costs of and incidental to today's application incurred by White Industries (Queensland) Pty Ltd, to be taxed. |
I certify that this and the six preceding pages are a true copy of the reasons for judgment herein of His Honour Mr Justice Pincus.
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