Morais v Mills (No1)

DISTRICT COURT OF QUEENSLAND

CITATION:

Morais & Anor v Mills (No1) [2010] QDC 252

PARTIES:

EDWARD MORAIS AND VIRGINIA MORAIS
(Plaintiffs)

V

JAMES MILLS
(Defendant)

FILE NO/S:

DC 1308 of 2009

DIVISION:

Civil

PROCEEDING:

District Court at Brisbane

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 June 2010

DELIVERED AT:

Brisbane

HEARING DATES:

On the papers

JUDGE:

Dorney QC DCJ

ORDERS:

I further order that Order 2 of the orders made by me on 11 June 2010 be varied by inserting “2a,” immediately before “2g” in that Order.

CATCHWORDS:

RECTIFICATION OF ORDER – Where “order” does not reflect intention of court at time order made or resulted from accidental slip or omission.

Uniform Civil Procedure Rules rr 7, 388, 667

McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152

Queensland Pork P/L v Lott [2003] QCA 271

Introduction

1. On 11 June 2010 I made orders in this proceeding. 

1. Among those orders was an order that the plaintiffs deliver up to the defendant certain specific identified items of personal property:  see Order 2.  The form of the order was one that included a reference to paragraph 30 of the counter-claim of the defendant filed 30 June 2009 and then excluded from the order for delivery up certain items that were the subject of an order made by Robin QC, DCJ on 24 June 2009. 

Error in order

1. Both the solicitors for the defendant and the plaintiffs (who were self-represented at the relevant time) made submissions by way of email concerning the order for delivery up. Those submissions, and any responses from the Court, have been placed on the Court file.

1. Since the trial has concluded and judgment given, no further evidence can now be led by either of the parties. Further, it does not matter that the defendant in this proceeding post-decision now indicates that he does not necessarily want some of the items that are the subject of the delivery up order. But what they may agree between themselves is entirely their own concern.

1. Nevertheless, the plaintiffs and the solicitors for the defendant have pointed out one particular aspect of the order for delivery up which does cause concern.  In the Reasons for Judgment I dealt, in some detail (see paragraphs [60]-[65]), with the issue of the return of the defendant’s mother’s ring. In the end, I concluded that the defendant could not succeed on the counter-claim in detinue or conversion to any degree at all with respect to that ring. I now have been, correctly, informed that item 2a (which presently is expressly included in the items to be delivered up in accordance with Order 2) deals with that special ring.  In consequence, Order 2 does not reflect fully my intention that the defendant not succeed with respect to that issue. 

How to rectify

1. In Queensland Pork P/L v Lott [2003] QCA 271, the Court of Appeal considered the issue of the correction of the judgment given. In particular, it found that, in the case…