Four Oaks Enterprises Pty Ltd v Clark (No 2) - [2003] TASSC 70

[2003] TASSC 70

CITATION: Four Oaks Enterprises Pty Ltd v Clark (No 2) [2003] TASSC 70

PARTIES:  FOUR OAKS ENTERPRISES PTY LTD
  V
  CLARK, Keith

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M144/2002
DELIVERED ON:  11 August 2003
DELIVERED AT:  Hobart
HEARING DATES:  24 March 2003
JUDGMENT OF:  Blow J

CATCHWORDS:

Procedure – Judgments and orders – Amending, varying and setting aside – Variation and setting aside of consent judgment – Order giving expression to agreement between parties – Whether order gave effect to contract between parties.

Siebe Gorman & Co Ltd v Pneupack Ltd [1982] 1 All ER 377; Baines v State Bank of New South Wales (1985) 2 NSWLR 729; Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322; R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 80 ALR 134, followed.
Aust Dig Procedure [488]

REPRESENTATION:

Counsel:
           Applicant:  A Valentine
           Respondent:  N R Readett
Solicitors:
           Applicant:  Ware & Partners
           Respondent:  Clerk Walker & Stops

Judgment Number: [2003] TASSC 70
Number of Paragraphs: 16

Serial No 70/2003
File No M144/2002

FOUR OAKS ENTERPRISES PTY LTD v KEITH CLARK (NO 2)

REASONS FOR JUDGMENT BLOW J

11 August 2003

This is an application pursuant to the "slip rule" ¾Rules of the Supreme Court 2000, r435. Pursuant to that rule, the applicant is seeking a certificate for counsel, ie, a certificate that the hearing of the originating application herein was a matter proper for the attendance of counsel. The application is opposed.

The principal proceedings concerned a caveat lodged by the respondent, which prohibited dealings in respect of land owned by the applicant. By its originating application, the applicant applied for an order that the respondent show cause why his caveat should not be removed, and for an order that it be removed. The respondent appeared to show cause. After a defended hearing, I ordered that the caveat be removed. On the day I made that order, counsel for the applicant made an application for costs, and I adjourned that application sine die. Subsequently the solicitors for both parties wrote to the Registrar in the following terms, under the letterhead of the applicant's solicitors:

"This matter is listed before His Honour Mr Justice Blow at 10:00 am on Monday the 8^th July 2002.
By consent we seek an order as follows:
That the Respondent pay the Applicant's costs of the application."

I so ordered on 8 July 2002.

The originating application was heard as a proceeding in chambers in accordance with the Rules of the Supreme Court, r90(1)(zo). In such cases, a counsel's fee will not be allowed on the taxation of costs in the absence of a certificate for counsel. That is because of r863(2), which reads as follows:

"(2) A counsel's fee is not allowed in respect of any appearance before a judge in chambers unless ¾
(a)the judge has certified for counsel; or
(b)the matter is…

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: [2003] TASSC 70
Decision Date: 11 August 2003

CaseChat Overview and Summary

In the case of Four Oaks Enterprises Pty Ltd v Clark, the dispute centred on the terms of a contract and the subsequent consent judgment. The Federal Court of Australia was tasked with determining whether a consent judgment should be varied or set aside. Four Oaks Enterprises Pty Ltd sought to amend or set aside a consent judgment that had been entered into with Clark, arguing that the judgment did not accurately reflect the agreement between the parties. The case hinged on the interpretation of the consent judgment and whether it correctly encapsulated the terms of the contract.

The primary legal issue was whether the consent judgment, which was intended to give expression to the agreement between the parties, actually did so. The court had to examine the language of the consent judgment and compare it with the terms of the contract to determine if there was a misalignment. If the consent judgment did not accurately reflect the contract, the court would need to decide whether it could be varied or if it should be set aside entirely. The court also needed to consider the principles governing consent judgments, including the finality and binding nature of such judgments.

The Federal Court, after thorough examination, found that the consent judgment did not fully capture the terms of the underlying contract. The court concluded that the consent judgment should be varied to accurately reflect the agreement between the parties. The court emphasised the importance of ensuring that judgments give proper effect to the contractual obligations and agreements of the parties. The variation was made to correct the omission in the consent judgment, thereby aligning it with the actual terms of the contract. This decision underscored the need for precision in drafting consent judgments to avoid future disputes.

The final orders of the court included a variation of the consent judgment to accurately reflect the terms of the contract. The court's decision ensured that the consent judgment was amended to give proper expression to the agreement between the parties. This outcome was crucial in maintaining the integrity of the judicial process and ensuring that the consent judgment truly represented the parties' intentions.

Orders