Mango Boulevard Pty Ltd v Spencer - [2007] QSC 276

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, cited
COUNSEL: I R Perkins for the applicants/first and second defendants
J K Bond SC and T Bradley for the respondent/plaintiff
SOLICITORS: 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…

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.

Keep reading for free

Create a free CaseChat account to read Mango Boulevard Pty Ltd v Spencer and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] QSC 276
Decision Date: 4 October 2007

CaseChat Overview and Summary

Mango Boulevard Pty Ltd, the plaintiff, brought an action against Spencer and others, the defendants, seeking relief against the consequences of non-compliance with a self-executing order. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the defendants' application for relief from the order should be granted, considering their failure to comply with the self-executing order, which required them to provide disclosure by a specific date. The court also had to determine if the defendants' reasons for non-compliance were sufficient to warrant relief under the Uniform Civil Procedure Rules.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The first and second defendants rely on a number of circumstances which they say affected their efforts to comply with the self-executing order, such as their attempt to comply with another request for disclosure made by the plaintiff about a fortnight after the self-executing order was made and requiring the copying of about 1,300 documents and the delivery of them to the plaintiff’s solicitors by 26 April 2007, a breakdown in their photocopying equipment, and pressure to make an application to withdraw admissions. Those matters may well be some explanation, but not an excuse, for failure to comply by 4.00 pm on 27 April 2007. However, they carry very little weight in all of the circumstances. Conclusion This is an application to relieve against the consequences of non-compliance with a self-executing order. Two months passed between the making of that order and the hearing of the application. Compliance was still incomplete, and the explanations relied upon were, as counsel for the plaintiff submitted, quite lame. Whether the application be considered as one to extend time under r 7 or one under r 668, the same factors inform the exercise of the discretion. The first and second defendants’ response to the self-executing order has been such as to put the fairness of a trial in jeopardy. I decline to extend time for compliance with the self-executing order, or to vary it in any respect. In all the circumstances the application is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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, cited
COUNSEL:	I R Perkins for the applicants/first and second defendants J K Bond SC and T Bradley for the respondent/plaintiff
SOLICITORS:	TressCox Lawyers for the applicants/first and second defendants Minter Ellison for the respondent/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.