SUPREME COURT OF QUEENSLAND
CITATION:
Davis v Perry O’Brien Engineering Pty Ltd [2016] QSC 202
PARTIES:
ROY STEVEN DAVIS and COLLEEN JOYCE DAVIS
(applicants)
v
PERRY O’BRIEN ENGINEERING PTY LTD
ACN 077 375 207(respondent)
FILE NO:
SC No 5928 of 2016
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
2 September 2016
DELIVERED AT:
Brisbane
HEARING DATE:
5 August 2016
JUDGE:
Applegarth J
ORDER:
1. The declarations sought in paragraph 1 of the originating application filed 16 June 2016 are declined.
2. The proceeding continue as if commenced by way of claim.
3. The parties confer for the purpose of resolving or narrowing the issues in dispute, identifying the real issues that remain in dispute and agreeing steps for the just and expeditious resolution of those issues at a minimum of expense.
4. Costs reserved.
CATCHWORDS:
EQUITY – TRUSTS AND TRUSTEES – EXPRESS TRUSTS CONSTITUED INTER VIVOS – DECLARATION OF TRUST – NECESSITY FOR INTENTION – where parties entered into a Share Sale Agreement to transfer the ownership of a company – where those parties and the company entered into a subsequent deed, which amended the Share Sale Agreement and by which the sellers gave a loan to the company – where the deed provided that the proceeds from the sale of certain items defined in the deed were to be paid to the sellers as soon as they were received – whether the parties intended by that clause that the proceeds were to be held on trust for the sellers
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – RIGHTS AND LIABILITIES OF THIRD PARTIES – where parties entered into a Share Sale Agreement to transfer the ownership of a company – where under the Share Sale Agreement the sellers warranted certain things to the buyers – where the company itself was not a party to the Agreement – where some warranties provided that the sellers would grant indemnities in favour of the buyers over claims against the company arising from circumstances that existed prior to settlement – whether the warranties appear to be intended to create duties enforceable by the company – whether the company is entitled to bring a claim for breach of those promises
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CROSS-CLAIMS: SET-OFF AND COUNTERCLAIM – SET-OFF – WHAT MAY BE SET-OFF – EQUITABLE SET-OFF – GENERAL MATTERS – where parties entered into a Share Sale Agreement to transfer the ownership of a company – where under the Share Sale Agreement the sellers warranted certain things to the buyers – where the company itself was not a party to the Agreement – where the parties and the company subsequently entered into a deed, which varied the Share Sale Agreement and which made provisions for a loan and repayments – where the sellers seek a declaration that the company must account to them based on a payment obligation under the deed – where the company advances claims for breaches…
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- AGLC
- Davis v Perry O'Brien Engineering Pty Ltd [2016] QSC 202
- Case
- [2016] QSC 202
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the sellers' entitlement to the proceeds of the sale of certain items was intended to be held on trust for them. The court also needed to determine whether the warranties in the Share Sale Agreement created duties enforceable by the company and whether the company's claims could be set-off against the sellers' claims under the deed. Furthermore, the court had to determine whether the company's arguments about being able to enforce promises in the deed and equitable set-off raised issues which should be tried in the ordinary way, rather than determined on the application.
The court held that the declarations sought in paragraph 1 of the originating application were declined. The court held that the proceeding would continue as if commenced by way of claim and that the parties should confer to resolve or narrow the issues in dispute. The court held that the company's arguments about being able to enforce promises in the deed and equitable set-off raised issues which should be tried in the ordinary way, rather than determined on the application. The court reserved costs.
The court ordered that the declarations sought in paragraph 1 of the originating application were declined, the proceeding continue as if commenced by way of claim, the parties confer to resolve or narrow the issues in dispute, and costs reserved.
Orders
Orders of the court
1. The declarations sought in paragraph 1 of the originating application filed 16 June 2016 are declined.
2. The proceeding continue as if commenced by way of claim.
3. The parties confer for the purpose of resolving or narrowing the issues in dispute, identifying the real issues that remain in dispute and agreeing steps for the just and expeditious resolution of those issues at a minimum of expense.
4. Costs reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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