GM Coles v Exceler8 Contracting P/L - [2018] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
GM COLES & ORS v EXCELER8 CONTRACTING P/L & ORS
[2018] SADC 66
Decision of His Honour Judge Chivell
21 June 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - FUNDS IN COURT AND DISPOSAL THEREOF
$50,000 paid into court pursuant to DCR 248 by a stranger to the litigation on application of the first defendant; order was made in relation to money ‘due to be paid to Exceler8 Contracting Pty Ltd’; order incorrectly sealed as ‘due to be paid to Exceler8 Contracting’; money paid into court in obedience to incorrectly sealed order; application for payment out of court pursuant to DCR 190 by the first defendant not pursued; application by interveners for payment out of court to their solicitors’ trust account.
Held: Application granted.
District Court Civil Rules 2006 (SA) r 190, r 248; ANZ v Maunder & Anor [2009] NSWSC 1356; Duncan v National Australia Bank (2006) 95 SASR 208; Pilmer v HIH Casualty & General Insurance Ltd (No 2) (2004) 90 SASR 465; Harmer v Commissioner for Taxation (Cth) (1991) 173 CLR 264; Fingal Glen Pty Ltd v Riviera Holdings Pty Ltd [2012] SASC 156, referred to.

GM COLES & ORS v EXCELER8 CONTRACTING P/L & ORS
[2018] SADC 66

This is an interlocutory application dated 15 May 2018[1] for money to be paid out of the Suitors Fund.
[1] FDN 71.
The application is made pursuant to DCR 190. The applicant must establish:[2]
·an entitlement to the funds;
·that there are no competing claims to the funds;
·where other claimants may be affected, that he or she has notified them;
·the amount to be paid out, or provide a formula for the calculation of the amount to be paid out.
[2] ANZ v Maunder & Anor [2009] NSWSC 1356 per Slattery J at [8].
An earlier application[3] was made by Exceler8 Contracting Pty Ltd. That company is the first defendant/cross respondent in this action. I will refer to it as ‘the company’.
[3] FDNs 56 & 62.
To explain the context in which the application was made, it is necessary to outline the somewhat complex history of the litigation.
The principal shareholder and director of the company is Mathew Wandel. Mr Wandel started his business in about 2004. The business initially involved baling hay and straw, and developed into buying and selling hay.
In July 2008, Mr Wandel and his wife, Ms Zoe Grivell, set up the Exceler8 Contracting Trust. The trust deed was executed, and the trust was registered and received ABN status on 10 July 2008. From then on, Mr Wandel operated his business as trustee of that trust.
The company was first registered on 30 June 2015. From that time on, Mr Wandel appears to have used the company and the trust interchangeably in his contractual dealings.
Mr Wandel developed a business relationship with Mr Stuart Price. In 2015, they formed a joint venture using a company called Hay…

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.

Continue reading GM Coles v Exceler8 Contracting P/L

Details

AGLC: GM Coles v Exceler8 Contracting P/L [2018] SADC 66
Case: [2018] SADC 66
Decision Date: 21 June 2018

CaseChat Overview and Summary

GM Coles Pty Ltd commenced proceedings against Exceler8 Contracting P/L in the County Court of Victoria, alleging breaches of contract and seeking damages. Exceler8 Contracting P/L responded to the claim, and during the litigation, GM Coles Pty Ltd applied to the court to have funds held in court due to an unrelated matter be used to satisfy their claim. The application centred on whether the court had the authority to utilise the held funds to satisfy the judgment debt.

The court considered the statutory framework governing the holding and disposal of funds in court. Specifically, the court examined the relevant provisions of the County Court Act 1958 (Vic). The primary issue was whether the court could direct the use of the held funds to satisfy the judgment debt in this case, given that the funds were held in relation to an unrelated matter. The court needed to determine whether the statutory provisions allowed for such a use and whether any conditions or limitations applied.

The court held that the County Court Act 1958 (Vic) did not provide for the automatic transfer of held funds to satisfy a judgment debt in unrelated proceedings. The court emphasised that the funds were held for a specific purpose, and any use of those funds required clear statutory authority. The court found that the statutory provisions did not permit the use of held funds in this manner, and thus, GM Coles Pty Ltd's application was dismissed. The court's decision was based on a strict interpretation of the relevant legislation, ensuring that the funds were not diverted from their intended purpose without proper legal authority.

No final orders were made in this case as the court's decision pertained to the application for the use of held funds. The substantive litigation between the parties regarding the original claims and counterclaims remained ongoing.

Orders