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EBANC Trade Pty Ltd v Clucor Pty Ltd

 

[2004] QSC 321

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MOYNIHAN J

No 5298 of 2004

EBANC TRADE PTY LTD

Plaintiff

and

 

CLUCOR PTY LTD

Defendant

BRISBANE

DATE 27/08/2004

JUDGMENT

HIS HONOUR: This is an application to set aside a judgment by default and an enforcement warrant based on that judgment.

The amount of the judgment was based on the claim advanced in the action. On the 16th of July, however, the claim was compromised for a lesser amount pursuant to heads of agreement bearing that date. The cause of action on which the claim and summary judgment were based therefore had, at the very least, arguably ceased. The cause of action merged in the compromise and the summary judgment must be set aside ex debito justitiae.

The question is whether it should be on terms. In my exercise of discretion, I am not prepared to order it be on terms. It is for the plaintiff to formulate the claim which it now seeks to advance, whether that be based on breach of heads of agreement or some other basis and for the defendant to be given the opportunity to defend the claim which is advanced against it.

I therefore allow the application to set the summary judgment aside and the warrant.

HIS HONOUR: The applicant should have it's costs, to be assessed on the standard basis.

HIS HONOUR: I have inserted the provision about costs.

HIS HONOUR: Other than the reserve costs of Monday the 22nd of August.

Close

Editorial Notes

  • Published Case Name:

    EBANC Trade Pty Ltd v Clucor Pty Ltd

  • Shortened Case Name:

    EBANC Trade Pty Ltd v Clucor Pty Ltd

  • MNC:

    [2004] QSC 321

  • Court:

    QSC

  • Judge(s):

    Moynihan J

  • Date:

    27 Aug 2004

Litigation History

No Litigation History

Appeal Status

No Status