Milglade Pty Ltd v Harrison - [2008] QSC 359

SUPREME COURT OF QUEENSLAND

CITATION:

Milglade Pty Ltd & Anor v Harrison & Ors [2008] QSC 359

PARTIES:

MILGLADE PTY LTD AS TRUSTEE FOR THE CRANEFIELD TRUST (ACN 010 640 543)
(first applicant)
and
DALRYMPLE HOLDINGS PTY LTD
(ACN 010 043 428)
(second applicant)
v
KENNETH OSCAR HARRISON
(first respondent)
and
HARRISON GROUP INVESTMENT PTY LTD
(ACN 100 361 948)
(second respondent)
and
KEN HARRISON HOMES PTY LTD
(ACN 060 363 966)
(third respondent)
and
NAVYROSE PTY LTD (ACN 010 043 428)
(fourth respondent)
and
KATHLEEN RAE HARRISON
(fifth respondent)
and
GLENDRA MARGUERITA HARRISON
(sixth respondent)

FILE NO:

BS 3634 of 2004

DIVISION:

Trial Division

PROCEEDING:

Civil application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2008

JUDGE:

Chesterman J

ORDER:

1. I will make an order in terms sought by Harrisons.

2. The parties should submit a draft giving effect to the need to make future periodic payments to the banks and the solicitors and to provide the correct amount to make good the arrears owed to the banks.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – where application for variation of order – where order sought to be amended is due to changed financial circumstances of the applicant/respondent – whether the order was interlocutory in nature

COUNSEL:

Mr T Sullivan for the applicant/respondent
Mr GI Thomson for the respondent/applicant

SOLICITORS:

Deacons for the applicant/respondent
Hopgood Ganim for the respondent/applicant

By an application filed on 7 March 2008 the applicants, the respondents to the action, whom I shall call ‘Harrisons’ seek to vary orders made by the Court on

13 July 2004 and 10 January 2005 in proceeding 6017 of 2004 to allow the applicants:

‘To access and use funds held on trust in ANZ interest bearing deposit account no. 8370-35256 to pay their reasonable living, legal and business expenses ...’.

The respondents to the application, the applicants in the action, whom I shall call ‘Milglade’, oppose the variations.

The first order was made by Atkinson J. It was in these terms:

‘Upon (Milglade) ...
(a) giving the usual undertakings for damages; and
(b)undertaking ... by 4.00 pm on 13 July 2004 deliver ... duly executed withdrawals of caveats ... over Lot 2 on RP 198584 ... title reference 18666210 ...
and upon (Harrisons) ... undertaking that:
(a)by 4.00 pm on 13 July 2004 ... provide to (Milglade) a copy of the settlement statement relating to the completion of the sale of (the said land);
(b)(Harrisons) will pay 50 per cent of the net proceeds of sale ... into an IBD account to be opened for that purpose jointly by the solicitors for the applicants and the respondents, such monies to be held in such account pending the hearing and determination ... of the proceedings commenced by Claim BS 11935 of 2003.
By consent it is ordered:
1.The hearing of the originating application ... be adjourned ...
2.The costs be reserved.’

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: [2008] QSC 359
Decision Date: 12 November 2008

CaseChat Overview and Summary

Milglade Pty Ltd brought a claim against Harrison, seeking to enforce a judgment debt. Following the hearing, the court ordered that Milglade pay Harrison a specified amount. Subsequently, Harrison applied to vary the order, seeking to increase the amount payable due to changed financial circumstances. Milglade opposed the application, contending that the order was interlocutory in nature and could not be varied. The primary issue for the court was whether the order was interlocutory in nature, and thus not subject to variation, or whether it was a final order, which could be amended or varied.

The court found that the order was not interlocutory. The order specified a definite sum of money payable by Milglade to Harrison, indicating that it was a final order. The court held that final orders are subject to amendment or variation if there has been a material change in circumstances since the order was made. The court found that there had been a material change in circumstances since the order was made, and therefore the order could be varied. The court held that the order was not interlocutory and could be varied.

The court ordered that the original order be varied in accordance with the application. The parties were directed to submit a draft of the order giving effect to the need to make future periodic payments to the banks and the solicitors, and to provide the correct amount to make good the arrears owed to the banks.

Orders

Orders of the court

1. I will make an order in terms sought by Harrisons.

2. The parties should submit a draft giving effect to the need to make future periodic payments to the banks and the solicitors and to provide the correct amount to make good the arrears owed to the banks.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Milglade Pty Ltd & Anor v Harrison & Ors [2008] QSC 359
PARTIES:	MILGLADE PTY LTD AS TRUSTEE FOR THE CRANEFIELD TRUST (ACN 010 640 543) (first applicant) and DALRYMPLE HOLDINGS PTY LTD (ACN 010 043 428) (second applicant) v KENNETH OSCAR HARRISON (first respondent) and HARRISON GROUP INVESTMENT PTY LTD (ACN 100 361 948) (second respondent) and KEN HARRISON HOMES PTY LTD (ACN 060 363 966) (third respondent) and NAVYROSE PTY LTD (ACN 010 043 428) (fourth respondent) and KATHLEEN RAE HARRISON (fifth respondent) and GLENDRA MARGUERITA HARRISON (sixth respondent)
FILE NO:	BS 3634 of 2004
DIVISION:	Trial Division
PROCEEDING:	Civil application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	12 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2008
JUDGE:	Chesterman J
ORDER:	1. I will make an order in terms sought by Harrisons. 2. The parties should submit a draft giving effect to the need to make future periodic payments to the banks and the solicitors and to provide the correct amount to make good the arrears owed to the banks.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – where application for variation of order – where order sought to be amended is due to changed financial circumstances of the applicant/respondent – whether the order was interlocutory in nature
COUNSEL:	Mr T Sullivan for the applicant/respondent Mr GI Thomson for the respondent/applicant
SOLICITORS:	Deacons for the applicant/respondent Hopgood Ganim for the respondent/applicant