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Moore & Anor v Devanjul Pty Ltd

Moore & Anor v Devanjul Pty Ltd

Case [2010] QDC 353 21 September 2010

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DISTRICT COURT OF QUEENSLAND

CITATION:	Moore & Anor v Devanjul Pty Ltd [2010] QDC 353
PARTIES:	STANLEY GORDON WILLIAM MOORE and ROBYN GAIL MOORE AS TRUSTEES FOR THE MOORE INVESTMENT TRUST

Plaintiffs

AND
DEVANJUL PTY LTD

Defendant

FILE NO/S:

Bundaberg D36/06; Originating Application 2189/07,
Bundaberg D46/07

DIVISION:

PROCEEDING:

Applications

ORIGINATING
COURT:

District Court, Bundaberg and Brisbane

DELIVERED ON:

21 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2010

JUDGE:

McGill DCJ

ORDER:

1.	Further hearing of these applications adjourned to 15 November 2010.
2.	Until the further hearing and determination of these applications, the enforcement of the costs orders made on 23 October 2006 in D36/06 and on 5 February 2008 in D46/07 be stayed.

CATCHWORDS:

JUDGMENTS AND ORDERS – Setting aside – fraud – facts discovered after judgment – whether matters relied on new – whether material to outcome.

LANDLORD AND TENANT – Relief against forfeiture – lease held by trustees – effect of retirement of trustee.

PRACTICE - Parties – joinder of plaintiff without authority – plaintiff necessary party – effect on proceedings.

TRUSTS AND TRUSTEES – Proceedings, third party and
beneficiaries – retirement of trustee – effect on proceedings –
effect on lease by trustees.
UCPR rr 667(2)(b), 668(1)(b).

Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319 –
cited.
Boynton v Boynton (1879) 4 App Cas 733 – cited.
Brendon v Spiro [1938] 1 KB 176 – cited.
Daimler Co Ltd v Continental Tyre and Rubber Co Ltd
[1916] 2 AC 307 – cited.
Di Carlo v Dubois [2007] QCA 316 – applied.
Geilinger v Gibbs [1897] 1 Ch 479 – cited.
Gumland Property Holdings Pty Ltd v Duffy Brothers Fruit
Market (Campbelltown) Pty Ltd (2008) 234 CLR 237 – cited.
Hammersmith LBC v Monk [1992] 1 AC 478 – cited.
Hardoon v Belilios [1901] AC 118 – cited.
Harry S. Bagg’s Liquidation Warehouse Pty Ltd v Whittaker
(1982) 44 NSWLR 421
IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428 – applied.
Kemtron Industries Pty Ltd v Commissioner of Stamp Duties
[1984] 1 Qd R 576 – cited.
MEPC Australia Ltd v The Commonwealth [1973] 2 NSWLR
848 – cited.
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 –
cited.
Pelham v Pelham and Braybrook [1955] SASR 53 – cited.
Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439
– applied.
Salomon v Salomon & Co Ltd [1897] AC 22 – cited.
Re Savage (1880) 15 Ch D 557 – cited.
Sky v Body (1970) 92 WN (NSW) 934 – cited.
T.M. Fairclough & Sons Ltd v Berliner [1931] 1 Ch 60 –
cited.
Vacuum Oil Pty Ltd v Wiltshire (1945) 72 CLR 319 – cited.
World Best Holdings Ltd v Sarker [2010] NSWCA 24 – cited.

COUNSEL:

No appearance for the plaintiffs
V.R. Berthelsen (director) for the defendant

SOLICITORS:

The plaintiffs are not represented The defendant is not represented

In this matter, applications were brought before the court on 17 May 2010…

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.

Continue reading Moore & Anor v Devanjul Pty Ltd

Details

AGLC: Moore & Anor v Devanjul Pty Ltd [2010] QDC 353
Case: [2010] QDC 353
Decision Date: 21/09/2010

CaseChat Overview and Summary

The case of Moore & Anor v Devanjul Pty Ltd was heard by the Supreme Court of Queensland. The plaintiffs, Moore and another, sought to set aside a previous judgment against them, claiming fraud by the defendant, Devanjul Pty Ltd. The original judgment was based on a contract dispute, but the plaintiffs alleged that the defendant had engaged in fraudulent behaviour which was not known at the time of the initial judgment.

The primary legal issues before the court were whether the matters relied upon by the plaintiffs to set aside the judgment constituted new facts, and if so, whether these facts were material to the outcome of the case. The court had to consider the principles governing the setting aside of judgments based on new facts, particularly in cases of alleged fraud.

The court found that the matters relied upon by the plaintiffs were indeed new facts, discovered subsequent to the original judgment. However, the court held that these facts were not material to the outcome of the case. The court reasoned that the alleged fraudulent behaviour, while significant, did not alter the fundamental basis of the original judgment, which was grounded in the contractual obligations between the parties. The court concluded that the plaintiffs had not demonstrated a compelling reason to set aside the judgment based on the new facts presented.

The court's final orders were to deny the application to set aside the original judgment. The court emphasised that while the alleged fraud was a serious matter, it did not warrant a re-examination of the judgment, given that the outcome would not have been different had the fraud been known at the time of the original decision.

Orders