Clone Pty Ltd v Players Pty Ltd (in liq)

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON AND EDELMAN JJ

CLONE PTY LTD  APPELLANT

AND

PLAYERS PTY LTD (IN LIQUIDATION)
(RECEIVERS & MANAGERS APPOINTED) & ORS            RESPONDENTS

Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed)

[2018] HCA 12

21 March 2018

A22/2017 & A23/2017

ORDER

Matter No A22/2017

1.Appeal allowed.

2.Set aside orders 3, 4 and 5 of the Full Court of the Supreme Court of South Australia dated 8 December 2016 and, in their place, order that:

(a)the appeal to the Full Court of the Supreme Court of South Australia be allowed;

(b)the orders of the Supreme Court of South Australia (Hargrave AJ) dated 9 November 2015 in proceeding SCCIV‑04-319 be set aside and, in their place, order that:

(i)the application be refused; and

(ii)the first, seventh, eighth and tenth defendants pay the plaintiff's costs; and

(c)the first to fourth respondents pay the appellant's costs.

3.The first to fourth respondents pay the appellant's costs of the appeal to this Court.

Matter No A23/2017

1.Appeal allowed.

2. Set aside orders 3, 4 and 5 of the Full Court of the Supreme Court of South Australia dated 8 December 2016 and, in their place, order that:

(a) the appeal to the Full Court of the Supreme Court of South Australia be allowed;

(b) the orders of the Supreme Court of South Australia (Hargrave AJ) dated 9 November 2015 in proceeding SCCIV‑10-819 be set aside and, in their place, order that:

(i) the action be dismissed; and

(ii) the plaintiffs pay the defendant's costs; and

(c) the first to fourth respondents pay the appellant's costs.

3. The first to fourth respondents pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of South Australia

Representation

B C Roberts SC with R Bonig for the appellant (instructed by Finlaysons Lawyers)

A S Bell SC with P Zappia QC for the first to fourth respondents (instructed by Griffins Lawyers)

Submitting appearance for the fifth respondent

C D Bleby SC, Solicitor-General for the State of South Australia with B L Garnaut for the sixth respondent (instructed by the Crown Solicitor (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Equity – Where judgment given by Supreme Court of South Australia, as varied by Full Court of Supreme Court of South Australia – Where successful party engaged in malpractice – Where malpractice later discovered – Where perfected judgment set aside – Where no pleading or proof of fraud – Nature of court's equitable power to set aside perfected judgment – Whether equitable power extends to malpractice not amounting to fraud – Whether power to set aside perfected judgment conditional upon unsuccessful party having exercised reasonable diligence to discover fraud or malpractice.

Procedure – Perfected judgment – Rescission – Where two applications brought to set aside judgment – Where judgment set…