SUPREME COURT OF QUEENSLAND
CITATION: Mango Boulevard P/L v Spencer & Ors [2007] QSC 276 PARTIES: MANGO BOULEVARD PTY LTD (ACN 101 544 601)
(respondent/plaintiff)
v
RICHARD SPENCER
(applicant/first defendant)
SILVANA PEROVICH
(applicant/second defendant)
KINSELLA HEIGHTS DEVELOPMENTS PTY LTD
(ACN 100 373 368)
(third defendant)FILE NO/S: BS1999 of 2006 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 4 October 2007 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 28 June 2007 JUDGE: Wilson J ORDER: The application is dismissed CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – RELIEF AGAINST – a self-executing order was made requiring the applicants to provide disclosure in a specified way by a specific date – in the event of failure to comply with the order, parts of the defence were struck out and judgment was entered on the counterclaim – the applicants seek relief from the operation of that order, under r 7 or r 668 of the Uniform Civil Procedure Rules – whether to grant relief Uniform Civil Procedure Rules 1999 (Qld) s 7, s 668 Arrow Nominees Inc v Blackledge [2000] All ER (D) 854,
followed
FAI General Insurance Company Limited v Southern Cross
Exploration NL (1988) 165 CLR 268, followed
IVI Pty Ltd v Baycrown Pty Ltd [2006] QCA 461, citedCOUNSEL: I R Perkins for the applicants/first and second defendants
J K Bond SC and T Bradley for the respondent/plaintiffSOLICITORS: TressCox Lawyers for the applicants/first and second
defendants
Minter Ellison for the respondent/plaintiff
Wilson J: By an application filed on 8 May 2007 the applicants/first and second defendants seek relief against a self-executing order made by the Chief Justice on 3 April 2007. The application is made under r 668 or alternatively r 7 of the Uniform Civil Procedure Rules 1999 (Qld).
Background
The third defendant is the owner of a valuable parcel of land at Mango Hill adjacent to North Lakes which it acquired by a contract which was completed in 2004.
When the contract was made in May 2002 the first and second defendants held all of the shares in the third defendant and were its only directors. On or about 4 July 2003 the first and second defendants entered into two agreements with the plaintiff –
(a) The Share Sale Agreement by which they sold 50% of the shareholding in the third defendant to the plaintiff; and (b) The Shareholders Deed which contained certain provisions allowing the shareholders to acquire the other shareholders’ shares in certain circumstances.
In about January 2006 the first and second defendants were considering mortgaging their shares to raise finance. They raised with the plaintiff the matter of its consent under the provisions of the Shareholders Deed. The plaintiff indicated it would refuse to give consent. When the consent was formally sought, it was refused. The first and second defendants allege that the refusal was unreasonable and in breach of the Shareholders Deed.
In about February 2006 the plaintiff gave…
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- Case
- [2007] QSC 276
- Decision Date
CaseChat Overview and Summary
The court found that the defendants had provided explanations for their failure to comply with the order, such as a subsequent request for disclosure, equipment failure, and the pressure to withdraw admissions. However, the court concluded that these explanations were insufficient to excuse the non-compliance. The court emphasised that the defendants' response to the self-executing order had put the fairness of a trial at risk. Therefore, the court declined to extend the time for compliance with the order or to vary it in any way. The application for relief was dismissed, and the court upheld the consequences of non-compliance as specified in the self-executing order.
The court's decision highlights the importance of adhering to court orders, particularly self-executing orders, and the need for defendants to provide satisfactory explanations for non-compliance. The court's reasoning underscores the potential consequences of failing to comply with court orders, which can jeopardise the fairness of a trial. The dismissal of the application reinforces the court's commitment to upholding the integrity of the legal process.
Orders
Orders of the court
The application is dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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