Mio Art Pty Ltd v Mango Boulevard Pty Ltd - [2016] QSC 205

SUPREME COURT OF QUEENSLAND

CITATION:

Mio Art Pty Ltd v Mango Boulevard Pty Ltd & Ors [2016] QSC 205

PARTIES:

MIO ART PTY LTD ACN 121 010 875

(plaintiff)

v

MANGO BOULEVARD PTY LTD ACN 101 544 601

(first defendant)

and

SILVANA PEROVICH

(second defendant)

and

ROBERT WILLIAM WHITTON as trustee of the estate of SILVANA PEROVICH

(third defendant)

and

BMD HOLDINGS PTY LTD ACN 010 093 348

(fourth defendant)

FILE NO/S:

BS1714/11

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2016

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. the application is dismissed.

2. the applicants pay the plaintiff’s costs of the application.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – INTERPLEADER – BY STAKEHOLDERS OR SIMILAR PERSONS – where judgment was entered in favour of the plaintiff against the first and fourth defendants for sums payable under a share sale agreement – where other claimants had previously given notice to the first and fourth defendants that they had been assigned the right to payment under the share sale agreement – where the first and fourth defendants applied to interplead in answer to the judgment debt in relation to adverse claims by the possible assignees – whether an interpleader order could be made after final judgment had been delivered

Civil Proceedings Act 2011 (Qld), s 19
Interpleader Act 1831 (Eng), s 1
Property Law Act 1974 (Qld), s 199
Rules of the Supreme Court 1883 (Eng), O 57

Uniform Civil Procedure Rules 1999 (Qld), r 949

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21, cited
Goldberg v Beckett [2015] NSWSC 1966, distinguished
H Stevenson & Son Ltd v Brownell [1912] 2 Ch 344, considered
Hamilton v Marks (1852) 5 De G & Sm 638, considered
Jones v Thomas (1854) 2 Sm & G 186; 65 ER 358, distinguished
Larabrie v Brown (1857) 1 De G & J 204, considered
Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2016] QCA 148, cited
Mio Art Pty Ltd as T’ee of Spencer Family Trust v Mango Boulevard Pty Ltd & Ors (No 6) [2015] QSC 116, cited
Randall v Lithgow (1884) 12 QBD 525, considered

Reading v School Board for London (1886) 16 QBD 686, considered

COUNSEL:

D Keane for the plaintiff
D Butler for the first and fourth defendants
Second defendant in person
No appearance for the third defendant
M Brady for Traditional Values Management Pty Ltd
M Bennett (Solicitor) for Earning Pty Ltd, ACN 128 854 820 Pty Ltd, ACN 128 854 759 Pty Ltd, ACN 128 854 768 Pty Ltd and ACN 127 567 373 Pty Ltd (“Earning and Associates”)
J Lavercombe (Solicitor) for Lillas & Loel
No appearance for R Winny
No appearance for ASIC

No appearance for Compensation Finance (Aust) Pty Ltd

SOLICITORS:

Delta Law for the plaintiff
Carter Newell for the first and fourth defendants
Mills…

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: [2016] QSC 205
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the case of Mio Art Pty Ltd v Mango Boulevard Pty Ltd, the dispute centred around the assignment of sums payable under a share sale agreement and the subsequent interpleader application. The matter was heard in the Federal Court of Australia. The plaintiff, Mio Art Pty Ltd, had obtained judgment against the first and fourth defendants for sums payable under the share sale agreement. Other claimants, who had notified the first and fourth defendants of their assignment of the right to payment, also had an interest in the funds. The first and fourth defendants, upon being unable to determine which of the claimants was entitled to the funds, sought to interplead in response to the judgment debt.

The central legal issue the court needed to resolve was whether an interpleader order could be granted after final judgment had been entered in the case. The court had to consider whether the interpleader application was an appropriate remedy in light of the prior judgment and the notice of assignment given by the other claimants. The court also needed to decide whether the interpleader mechanism could still be used effectively given the timing of the application.

In reaching its decision, the court found that the interpleader order was not appropriate in this case. The court held that the interpleader application was not a suitable remedy once a final judgment had already been entered. The court reasoned that the first and fourth defendants had been on notice of the assignment claims and had not challenged them prior to the judgment. Therefore, they were deemed to have accepted the validity of the assignment claims. Additionally, the court observed that the interpleader order would not resolve the conflicting claims of the assignees as it would not determine which assignee was entitled to the funds. Consequently, the court dismissed the application and ordered the applicants to pay the plaintiff's costs of the application.

Orders

Orders of the court

The order of the court is that:

1. the application is dismissed.

2. the applicants pay the plaintiff’s costs of the application.

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:	Mio Art Pty Ltd v Mango Boulevard Pty Ltd & Ors [2016] QSC 205
PARTIES:	MIO ART PTY LTD ACN 121 010 875 (plaintiff) v MANGO BOULEVARD PTY LTD ACN 101 544 601 (first defendant) and SILVANA PEROVICH (second defendant) and ROBERT WILLIAM WHITTON as trustee of the estate of SILVANA PEROVICH (third defendant) and BMD HOLDINGS PTY LTD ACN 010 093 348 (fourth defendant)
FILE NO/S:	BS1714/11
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	9 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	1 August 2016
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. the application is dismissed. 2. the applicants pay the plaintiff’s costs of the application.
CATCHWORDS:	PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – INTERPLEADER – BY STAKEHOLDERS OR SIMILAR PERSONS – where judgment was entered in favour of the plaintiff against the first and fourth defendants for sums payable under a share sale agreement – where other claimants had previously given notice to the first and fourth defendants that they had been assigned the right to payment under the share sale agreement – where the first and fourth defendants applied to interplead in answer to the judgment debt in relation to adverse claims by the possible assignees – whether an interpleader order could be made after final judgment had been delivered Civil Proceedings Act 2011 (Qld), s 19 Interpleader Act 1831 (Eng), s 1 Property Law Act 1974 (Qld), s 199 Rules of the Supreme Court 1883 (Eng), O 57 Uniform Civil Procedure Rules 1999 (Qld), r 949 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21, cited Goldberg v Beckett [2015] NSWSC 1966, distinguished H Stevenson & Son Ltd v Brownell [1912] 2 Ch 344, considered Hamilton v Marks (1852) 5 De G & Sm 638, considered Jones v Thomas (1854) 2 Sm & G 186; 65 ER 358, distinguished Larabrie v Brown (1857) 1 De G & J 204, considered Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2016] QCA 148, cited Mio Art Pty Ltd as T’ee of Spencer Family Trust v Mango Boulevard Pty Ltd & Ors (No 6) [2015] QSC 116, cited Randall v Lithgow (1884) 12 QBD 525, considered Reading v School Board for London (1886) 16 QBD 686, considered
COUNSEL:	D Keane for the plaintiff D Butler for the first and fourth defendants Second defendant in person No appearance for the third defendant M Brady for Traditional Values Management Pty Ltd M Bennett (Solicitor) for Earning Pty Ltd, ACN 128 854 820 Pty Ltd, ACN 128 854 759 Pty Ltd, ACN 128 854 768 Pty Ltd and ACN 127 567 373 Pty Ltd (“Earning and Associates”) J Lavercombe (Solicitor) for Lillas & Loel No appearance for R Winny No appearance for ASIC No appearance for Compensation Finance (Aust) Pty Ltd
SOLICITORS:	Delta Law for the plaintiff Carter Newell for the first and fourth defendants Mills…