Marminta P/L v French - [2004] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:

Marminta P/L v French [2004] QCA 8

PARTIES:

MARMINTA PTY LTD ACN 060 701 626
(plaintiff/appellant/cross-respondent)
v
RUSTY FRENCH
(defendant/respondent/cross-appellant)

FILE NO/S:

Appeal No 11719 of 2002
SC No 187 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Further Order

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

Judgment delivered 5 December 2003
Further Order delivered 24 December 2003
Further Further Order delivered 5 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2003; 19 December 2003; 5 February 2004

JUDGES:

Williams and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

FURTHER FURTHER ORDER:

Application for variation of the orders is dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where original judgment on appeal ordered specific performance of agreement between parties to transfer mortgages – where question of whether debts secured thereby were to be transferred along with mortgages was not litigated at trial or on appeal – whether order made should be varied to indicate that the debts secured by mortgages should be transferred with mortgages

Land Title Act 1994 (Qld), s 62

COUNSEL:

J F Curran for the appellant/cross-respondent
P Bick QC, with P E Hack SC, for the respondent/cross-appellant

SOLICITORS:

Robert Harris & Co for the appellant/cross-respondent
Hopgood Ganim for the respondent/cross-appellant

WILLIAMS JA: This Court by judgment delivered on the 5th of December 2003 allowed an appeal against a decision of the learned trial Judge refusing to order specific performance of an agreement which he found had initially been made between the relevant parties. This Court made an order that the agreement in the terms found by the learned trial Judge should be specifically enforced and it made an order accordingly.

There was an application on the 19th of December 2003 to have that order varied but that application was dismissed.

The Court now has before it a further application by the successful appellant to have its order varied by having the words "and the debts secured thereby" inserted on some three occasions into the terms of the order.

It is true that in the statement of claim the plaintiff alleged that the terms of the agreement were for the purchase of the mortgages and the money secured thereby. However, the correspondence which evidenced the formation of that agreement did not contain the words "the moneys secured thereby" and the learned trial Judge limited the terms of the agreement to the purchase of the mortgages and it is that agreement which, as I've said, this Court ordered to be specifically enforced.

Counsel for the applicant today argues that there was a deemed admission on the pleadings that the words "the moneys secured thereby" were part of any agreement evidenced by the correspondence in question.

Having regard to the specific pleading in paragraph 2 of the defence and counterclaim I…

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: [2004] QCA 8
Decision Date: 5 December 2003

CaseChat Overview and Summary

The appeal was brought by the appellant, Marminta P/L, against the decision of the respondent, French, regarding a contract dispute concerning the transfer of mortgages. The case was heard in the Queensland Court of Appeal. The original judgment had ordered specific performance of an agreement between the parties, which involved the transfer of mortgages. However, there was ambiguity regarding whether the debts secured by the mortgages were also to be transferred. This issue was neither litigated at the trial nor on appeal.

The primary legal issue before the Court of Appeal was whether the original judgment should be varied to clarify that the debts secured by the mortgages should be transferred along with the mortgages. The Court had to determine whether it had the inherent jurisdiction to make such an amendment to the judgment. The Court considered whether the omission of this detail in the original judgment was a clerical error or a significant omission that affected the rights of the parties.

The Court of Appeal held that it had the inherent jurisdiction to correct a clerical or significant error in a judgment. The omission of the detail concerning the transfer of the debts secured by the mortgages was considered a significant omission that affected the rights of the parties. Consequently, the Court varied the original judgment to clarify that the debts secured by the mortgages should be transferred with the mortgages. The appeal was thus allowed in part.

Orders