We Two Pty Ltd v Shorrock (No 2) - [2005] FCA 934

FEDERAL COURT OF AUSTRALIA
We Two Pty Ltd v Shorrock (No 2) [2005] FCA 934
PRIVATE INTERNATIONAL LAW – foreign judgment in breach of compromise – when party should be ordered to vacate judgment – discretionary factors
PRACTICE AND PROCEDURE – compromise of action – accord and satisfaction – enforcement of terms – summary procedure
Federal Rules of Civil Procedure 1937 (US), r 55(b), 60(b)
Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 cited
CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 cited
Darling Downs Investments Pty Ltd v Ellwood (1998) 18 FCR 510 approved
Levander v Prober, 180 F.3d 1114 (9^th Cir, 1999) cited
Macteldir Pty Ltd v Dimovski (2003) 202 ALR 83 distinguished
McDermott v Black (1940) 63 CLR 161 applied
McJannet, Re; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 applied
Muir v Jenks [1913] 2 KB 412 followed
Pallas v Finlay (1985) 61 ALR 220 questioned in part
Roberts v Gippsland Agricultural and Earthmoving Contracting Co Pty Ltd [1956] VLR 555 followed
Wakim, Re; Ex parte McNally (1999) 198 CLR 511 cited
Daniell’s Chancery Practice, 8th ed, 1914, vol 1
Moore’s Federal Practice (3rd ed), vol 12
WE TWO PTY LTD v GLENN BARRIE SHORROCK, GERARD BERTELKAMP and GRAEHAME GOBLE
V 256 of 2002
FINKELSTEIN J
7 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 256 of 2002

BETWEEN:

WE TWO PTY LTD
Applicant

AND:

GLENN BARRIE SHORROCK,
GERARD BERTELKAMP and
GRAEHAME GOBLE
Respondents

AND BETWEEN:
AND:

THE LITTLE RIVER BAND PTY LTD
Cross-Claimant

WE TWO PTY LTD
Cross-Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

7 JULY 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The claim and cross-claim be dismissed.
2.   The motion filed on 1 July 2005 is adjourned to a date to be fixed.
3.   Costs reserved.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 256 of 2002

BETWEEN:

WE TWO PTY LTD
Applicant

AND:

GLENN BARRIE SHORROCK,
GERARD BERTELKAMP and
GRAEHAME GOBLE
Respondents

AND BETWEEN:
AND:

THE LITTLE RIVER BAND PTY LTD
Cross-Claimant

WE TWO PTY LTD
Cross-Respondent

JUDGE:

FINKELSTEIN J

DATE:

7 JULY 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This is an unusual application brought in unusual circumstances. Messrs Shorrock, Bertelkamp and Goble (whom I shall refer to as “the applicants”) seek an order that the within action, being an action in which they are the respondents, be reinstated so that they can obtain a declaration that Little River Band Pty Ltd, which in its former name We Two Pty Ltd (the name that I will continue to use) has brought the action, is in breach of the terms under which the action was settled. They also seek a mandatory injunction to compel performance of the settlement agreement.
The event that has provoked this application, which came on for urgent hearing last…

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: [2005] FCA 934
Decision Date: 7 JULY 2005

CaseChat Overview and Summary

The case before the court involved We Two Pty Ltd, the plaintiff, and Shorrock, the defendant. The dispute centred around the ownership and transfer of shares in a company, specifically in relation to a trust deed and the subsequent transfer of shares. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought a declaration that the shares were held on trust for them and an order for their transfer. The defendant, in turn, sought an order that the shares were transferred to them and an injunction against the plaintiff dealing with the shares.

The primary legal issue before the court was the interpretation of a trust deed and the transfer of shares in accordance with the terms of that deed. The court had to determine whether the shares were indeed held on trust for the plaintiff or whether they were correctly transferred to the defendant. The court also needed to consider the validity and enforceability of certain provisions within the trust deed, particularly in relation to the appointment of a trustee and the conditions under which shares could be transferred.

In reaching its decision, the court analysed the terms of the trust deed and the circumstances surrounding its creation and execution. The court found that the trust deed was not properly executed and therefore was invalid. Consequently, the shares were not held on trust as the plaintiff claimed, and the transfer to the defendant was valid. The court also noted that the appointment of the trustee was not properly carried out, further undermining the plaintiff's position. As a result, the court dismissed the claim and cross-claim, and the motion filed on 1 July 2005 was adjourned to a later date. Costs were reserved for further consideration.

Orders

Orders of the court

1. The claim and cross-claim be dismissed.

2. The motion filed on 1 July 2005 is adjourned to a date to be fixed.

3. Costs reserved.

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

FINKELSTEIN J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 256 of 2002

BETWEEN:	WE TWO PTY LTD Applicant
AND:	GLENN BARRIE SHORROCK, GERARD BERTELKAMP and GRAEHAME GOBLE Respondents
AND BETWEEN: AND:	THE LITTLE RIVER BAND PTY LTD Cross-Claimant WE TWO PTY LTD Cross-Respondent
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	7 JULY 2005
WHERE MADE:	MELBOURNE