Epicastle Pty Ltd & Lewis v Hardy - [1992] QCA 160

IN THE COURT OF APPEAL	[1992] QCA 160
SUPREME COURT OF QUEENSLAND

C.A. No. 2624 of 1985.

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Demack J.

BETWEEN:

EPICASTLE PTY LTD

(First Plaintiff) Respondent

- and -

SHANE GEORGE LEWIS

(Second Plaintiff) Respondent

AND:

PETER WILLIAM HARDY (a bankrupt)

(First Defendant)

- and -

THE OFFICIAL TRUSTEE IN BANKRUPTCY
as the Trustee of the property of
PETER WILLIAM HARDY (a bankrupt)

(Second Defendant) Respondent

Consolidated with Writ 3764 of 1985

BETWEEN:

ROCKDEL PTY LTD

(Plaintiff) Appellant

AND:

SHANE GEORGE LEWIS

(Defendant) Respondent

JUDGMENT - THE COURT

Delivered the Twenty-Fifth day of June 1992

MINUTE OF ORDER
Appeal allowed. Vary order made on 27 June 1991 by inserting after the word "is", and before the
word "null", in the paragraph numbered 3 in that order the words "as between the parties to action no.
2624 of 1985".
CATCHWORDS
PRACTICE - PARTIES TO ACTIONS - Order made for consolidation of actions with 1 common party
- Whether true consolidation - whether definition in 2nd action bound by consent order in 1st action

- whether defendant consented to terms of order - whether actions treated as separate by parties.

Counsel: Dutney Q.C. for the appellant

McHugh for the respondents Epicastle Pty Ltd and Lewis Egan for the respondent
The Official Receiver

Solicitors:	R G Kilner & Black N R Barbi Morris Fletcher & Cross
Hearing date:	17 June 1992

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 2624 of 1985.

Brisbane

Before	Fitzgerald P. McPherson J.A. Demack J.
BETWEEN:

EPICASTLE PTY LTD

(First Plaintiff) Respondent

- and -

SHANE GEORGE LEWIS

(Second Plaintiff) Respondent

AND:

PETER WILLIAM HARDY (a bankrupt)

(First Defendant)

- and -

THE OFFICIAL TRUSTEE IN BANKRUPTCY
as the Trustee of the property of
PETER WILLIAM HARDY (a bankrupt)

(Second Defendant) Respondent

Consolidated with Writ 3764 of 1985

BETWEEN:

ROCKDEL PTY LTD

(Plaintiff) Appellant

AND:

SHANE GEORGE LEWIS

(Defendant) Respondent

JUDGMENT - THE COURT

Delivered the twenty-fifth day of June 1992

This appeal involves two actions in the Supreme Court. In the first of them, which

is no. 2624 of 1985, Epicastle Pty Ltd and Shane George Lewis are the plaintiffs.
Originally the only defendant in the action was Hardy; but when he became bankrupt the

Official Trustee was added as co-defendant. In the second action no. 3764 of 1985 the

plaintiff is Rockdel Pty Ltd and the defendant is Shane George Lewis.

According to the statement of claim delivered in the second action, the material

facts are that Lewis was registered proprietor of a lot in a building units plan. He executed

a bill of mortgage over that lot, which was registered on 22 April 1985 as no. H566200.

The bill of mortgage was in favour of Peter William Hardy, who in July 1985 executed and

delivered to Rockdel Pty Ltd an instrument transferring his interest as mortgagee. It was

lodged at the…

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: [1992] QCA 160
Decision Date: 25/06/1992

CaseChat Overview and Summary

This appeal concerns two separate actions that were brought in the Supreme Court. The first action, number 2624 of 1985, was filed by Epicastle Pty Ltd and Shane George Lewis, with Peter William Hardy and the Official Trustee in Bankruptcy as defendants. The second action, number 3764 of 1985, involved Rockdel Pty Ltd as the plaintiff and Shane George Lewis as the defendant. The dispute centered around a bill of mortgage that was executed by Lewis in favor of Hardy and later transferred to Rockdel Pty Ltd. Lewis alleged that Hardy, his solicitor, fraudulently induced him to sign the mortgage. The legal issues revolved around whether Rockdel Pty Ltd was bound by a consent order made in the first action and whether that order could be varied to clarify its scope.

The court found that Rockdel Pty Ltd was not bound by the consent order made in the first action. The order was made in the presence of Rockdel's counsel, who did not consent to the order but also did not oppose it. The court held that Rockdel's counsel's mere presence and silence did not equate to consent. The order was intended only for the parties involved in the first action, and Rockdel Pty Ltd was not a party to that action. The court allowed the appeal and varied the order to clarify that it only applied to the parties in the first action.

The final orders of the court were to allow the appeal and vary the consent order by inserting specific wording to indicate that it applied only to the parties in the first action. Additionally, Lewis was ordered to pay the costs of the appeal for Rockdel Pty Ltd and the Official Trustee in Bankruptcy.

Orders