Stubberfield v Paradise Grove P/L
[2000] QCA 299
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- Unreported Judgment
- Appeal Determined (QCA)
- Stubberfield v Paradise Grove P/L[2000] QCA 299
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Stubberfield v Paradise Grove P/L[2000] QCA 299
Stubberfield v Paradise Grove P/L[2000] QCA 299
SUPREME COURT OF QUEENSLAND
CITATION: | Stubberfield v Paradise Grove P/L [2000] QCA 299 |
PARTIES: | JOHN RICHARD STUBBERFIELD (applicant) v PARADISE GROVE PTY LTD ACN 053 003 302 (respondent) |
FILE NO/S: | Appeal No 4796 of 2000 Appeal No 38 of 1993 SC No 7852 of 1996 P&E Court No 279 of 1992 |
DIVISION: | Court of Appeal |
PROCEEDING: | Miscellaneous Application – Civil |
ORIGINATING COURT: | Court of Appeal, Supreme Court at Brisbane and Planning and Environment Court |
DELIVERED ON: | 28 July 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 July 2000 |
JUDGES: | Davies, McPherson and Thomas JJA Judgment of the Court |
ORDER: | The application of 2 June 2000, as amended, is refused. The applicant is ordered to pay the costs of the respondent, Paradise Grove Pty Ltd, to be assessed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME - whether to grant extension of time within which to apply for leave to appeal against costs orders – substantial and inadequately explained delay BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – PETITION AND SEQUESTRATION ORDER – EFFECT OF BANKRUPTCY ON PROPERTY AND PROCEEDINGS – PROSECUTION OF ACTIONS AND PROCESS BY AND AGAINST BANKRUPT – ACTIONS AND PROCEEDINGS BY OR ON BEHALF OF BANKRUPT – INSTITUTION OF ACTIONS AFTER SEQUESTRATION - applicant an undischarged bankrupt – whether application could only be brought by trustee of estate in bankruptcy JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – applications to re-open 1993 decision of Court of Appeal on appeal from Planning and Environment Court, and to stay or set aside costs orders made in other litigation - whether Court of Appeal should re-open its decision of 23 June 1993 – jurisdiction of court to re-open a decision – R v Pettigrew [1997] 1 Qd R 601 discussed in light of DJL v The Central Authority (2000) 74 ALJR 706 - whether respondent validly incorporated – invalidity of incorporation never raised as an issue in primary litigation - inappropriate for Court to determine allegations of fraud by respondent and council LOCAL GOVERNMENT – SUBDIVISION OF LAND – CONSENT AND APPROVAL OF COUNCILS – DEVELOPMENT CONTROL PLANS - whether error of law in not finding that Development Control Plan must be amended before subdivision approved where land designated Public Open Space in Development Control Plan – point not properly raised before or determined by Court of Appeal in 1993 LOCAL GOVERNMENT – SUBDIVISION OF LAND – CONSENT AND APPROVAL OF COUNCILS – OTHER MATTERS – APPEALS – APPEALS TO COURTS, CURIAL SUPERVISION AND JUDICIAL REVIEW – GENERALLY Local Government (Planning and Environment) Act 1990 (Qld) s 5.1(6)(a) Supreme Court of Queensland Act 1991 (Qld) s 8(1) Cairns City Council v Hessels (1998) 98 LGERA 404, considered Cummings v Claremont Petroleum NL (1996) 185 CLR 124, considered Douglas Shire Council v Fabcot & Ors (1999) 103 LGERA 195, considered DJL v The Central Authority (2000) 74 ALJR 706, considered MEPC Australia Limited v Westfield Limited & Ors (1998) 100 LGERA 204, considered R v Pettigrew [1997] 1 Qd R 601, considered Rhema Management Services v Merle Norman (1996) 93 LGERA 51, considered |
COUNSEL: | The applicant appeared on his own behalf M D Martin for the respondent FW Lippiatt (sol) for the Trustee in Bankruptcy amicus curiae |
SOLICITORS: | The applicant appeared on his own behalf Baker Johnson for the respondent Lippiatt & Co for the Trustee in Bankruptcy amicus curiae |
- THE COURT: Mr Stubberfield, who is an undischarged bankrupt, has brought an application to this court designed to achieve numerous things. One of these is to delay or defeat various orders for costs in favour of Paradise Grove that have been made in a series of legal proceedings between these parties since 1992. Another is to "re-open" a decision of this court given in 1993 which dismissed his appeal against a decision of the Planning and Environment Court. He seeks declarations of invalidity in relation to the development applications and consents thereto by the Redland Shire Council that were in issue in those proceedings. He seeks leave to appeal against a decision of the Planning and Environment Court in 1994 which awarded costs against him (and a six year extension of time within which to do so). He also seeks stays of orders for costs against him made by various trial division judges of the Supreme Court on 14 February 2000, 20 March 2000 and 9 May 2000. He further seeks the determination of "the question of law as to whether the respondent Paradise Grove Proprietary Limited was validly incorporated".
- Before the various legal questions that have been raised can satisfactorily be dealt with, it is necessary to describe the factual background.
Factual Background
- Mr Stubberfield and his wife at material times have owned a property in the Redland Shire which is adjacent to land formerly owned by Paradise Grove. Part of Paradise Grove's land was zoned Residential A and the balance was zoned Public Open Space. By 1992 Paradise Grove wished to develop its land for residential purposes and Mr Stubberfield wished to prevent this. He was initially successful in June 1992 in obtaining a decision in this court to the effect that an application by the council to rezone the relevant area was invalid. Paradise Grove then made two fresh applications to the council on 29 June 1992. These were:
- an application to subdivide the northern part of the land (all of which was in the Residential A zone) into 27 lots, to allocate some of the land for park purposes, and for the residue of the land to be subdivided into two lots separated by a proposed road;
- a combined application to rezone the Public Open Space land to Residential A and to subdivide the area other than that of the abovementioned 27 proposed Residential A lots into 29 Residential A allotments. The proposal showed proposed roads including the road proposed in the above subdivisional application.
The two applications were consistent, and may be seen as intending to effect subdivision of the whole of the land in two separate stages. The first mentioned application was essentially for an approval which would permit subdivision of and access to the northern portion of the land; and the second was for a series of approvals that would in due course permit subdivision of the southern portion of the land. It will be convenient to refer to the applications respectively as "the northern land application" and "the southern land application".
- On 5 August 1992 the council approved the northern land application, and on 23 September 1992 gave notice that it proposed to approve the southern land application. Giving effect to the latter approval would involve further steps including approval of rezoning by the Governor-in-Council. It may be noted that such steps have in fact been taken, both subdivisions have been effected, and the allotments have long since been sold.
- On 28 October 1992 Mr Stubberfield filed an appeal (No 279 of 1992) to the Planning and Environment Court against the council's decision of 23 September 1992 on the southern land application. He at no stage filed an appeal in respect of the decision of 5 August 1992 on the northern land application. On 25 January 1993 Mr Stubberfield filed an application in his pending appeal in the Planning and Environment Court (No 279 of 1992) seeking a declaration of invalidity of the northern land application. This would seem to have been an attempt to stop that subdivision from proceeding. In the absence of any appeal against the Council's decision of 5 August 1992 the basis of the court's jurisdiction to entertain that application is not completely clear. However in the event Quirk DCJ entertained the application on the merits and on 17 February 1993 refused it. Mr Stubberfield then appealed to the Court of Appeal which on 23 June 1993 dismissed his appeal with costs.
- In due course (May 1994) the High Court refused special leave to appeal against the decision of the Court of Appeal. In refusing leave, the court stated that the case turned on its own facts.
- Mr Stubberfield's appeal to the Planning and Environment Court (No 279 of 1992) was then brought on before Skoien DCJ on 15 June 1994. After hearing argument his Honour ruled that the appeal was in respect of the southern land application only and that the validity of the council's decision concerning the northern land application was not before him. Mr Stubberfield thereupon indicated that he had no alternative other than to withdraw the appeal, "because there's no point in continuing an exercise that is not relevant to our land". Mr Stubberfield then applied for and was granted leave to withdraw the appeal. The respondents to the appeal then applied for costs. Skoien DCJ took the view that the 1993 decision of the Court of Appeal had made it clear that objections concerning the northern land application were unfounded. Inter alia the Court of Appeal had clearly ruled out Mr Stubberfield's contention that only one overall combined application could be made. His Honour acknowledged that live issues were raised in the appeal against the council's decision on the southern land application, and noted that those issues did not lack the possibility of real argument and possible success. His Honour considered however that the combined case which Mr Stubberfield insisted on presenting was "doomed to failure in the light of his unwillingness to restrict the matter to the southern portion of the land and his unwillingness to proceed on that basis"(Stubberfield v Redland Shire Council and Paradise Grove Proprietary Limited (1995) QPLR 152). In that sense he ruled that the further continuation of the appeal had been frivolous and vexatious and that costs should be awarded against Mr Stubberfield.
- In 1996, Paradise Grove commenced an action against the Stubberfields for damages in the Supreme Court. The claim is based on the tort of abuse of process (Butler v Simmonds Crowley and Galvin [1999] QCA 475, 12 November 1999; Williams v Spautz (1992) 174 CLR 509) or alternatively on malicious prosecution. After a period of inactivity Paradise Grove in September 1999 commenced taking steps towards bringing the action to trial. In the meantime, Mr Stubberfield having failed to pay the taxed costs of the appeal, Paradise Grove had petitioned for the sequestration of his estate. Mr Stubberfield engaged Mr Lippiatt, a solicitor, to defend the petition. Over a period Mr Lippiatt's costs apparently grew and ultimately, on 28 July 1999 Mr Lippiatt obtained a sequestration order against Mr Stubberfield who remains an undischarged bankrupt.
- On 10 February 2000 Mr Stubberfield brought an application before Shepherdson J to strike out the statement of claim in Paradise Grove's pending Supreme Court action. The application was dismissed with costs. Mr Stubberfield filed an appeal against that order but it has not been heard or determined. On 20 March 2000, following alleged failure on Mr Stubberfield's part to make discovery, Douglas J made an order with costs against Mr Stubberfield. On 9 May 2000, shortly before the hearing of an application by Paradise Grove to strike out Mr Stubberfield's defence, he delivered a replacement defence, and when the matter came on before White J her Honour ordered costs of the application against Mr Stubberfield.
- Finally on 2 June 2000 the present application for multiple forms of relief was filed in this Court, and on 23 June 2000 was amended to its present form. Mr Stubberfield appeared for himself on the appeal. He read two affidavits and presented written and oral submissions. He was also granted leave to make further written submissions after the appeal had been heard, and two further written submissions were received.
Effect of Bankruptcy Act on bringing of present proceedings
- Whilst it is arguable that the present claims may only be brought by the trustee of his estate, we do not propose to decide the application on this basis. So far as Paradise Grove's pending action is concerned, it would seem that it is entitled to continue such proceedings without the need of leave of the court under s 58(3) of the Bankruptcy Act, as the action is not "in respect of a provable debt". It is an action for "unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust" which s 82 provides is not provable in bankruptcy.
- It was not suggested that Mr Stubberfield lacks the right to resist or defend the claim that has been brought against him, and the trustee has not sought to defend on his or his estate's behalf. Further, to the extent to which the present application seeks leave to appeal against existing judgments for the payment of money (including the various judgments for costs) a majority of the High Court (Brennan CJ, Gaudron and McHugh JJ) in Cummings v Claremont Petroleum NL (1996) 185 CLR 124, 136 have expressed the view that a right to appeal is not property, and therefore not "property of the bankrupt". Despite this, Brennan CJ, Gaudron and McHugh JJ were of the view in that case that the bankrupt had no financial interest that conferred locus standi to appeal in his own name against the judgment given against him. Mr Stubberfield submitted that the present proceedings were an assertion of his right to oppose an illegal development of land. He submitted that this was a "personal right" vested in the public at large, independent of property rights and that it was incidental and irrelevant that he and his wife owned the adjoining property. However it is equally open to think that to the extent to which the present proceedings assert a right to challenge the validity of the nearby subdivisions, they are "proceedings to protect, enhance or add to the property of which he has been divested on bankruptcy"; and that to the extent to which they are designed to set aside costs orders they similarly relate to the enhancement of the estate that has passed to the trustee. It was said by Brennan CJ, Gaudron and McHugh JJ in Cummings v Claremont Petroleum NL (1996) 185 CLR 124, 136 that a bankrupt has no right to bring such proceedings. If the trustee is a necessary party a procedure exists whereunder a bankrupt might apply to the appropriate court for an order compelling the trustee to lend his name to the bringing of an action. However we have no wish to precipitate further proceedings of that kind.
- Our provisional view on these matters is that Mr Stubberfield has not demonstrated any right to bring an appeal or to seek any of the forms of relief sought in the present application in his own right. However, to the extent to which he is seeking to bring appeals or relief ancillary thereto, if the appeals were promising it is at least possible that he could bring proceedings in the appropriate court to enforce use of the trustee's name, in which case some or all of the questions raised in the present proceedings would need to be considered, initially by the court to which a procedural application was brought, and if successful there, in this court.
- In the circumstances, without holding that Mr Stubberfield has any standing to bring the present proceedings, we propose to consider whether there is any merit in any of the applications that he seeks to bring.
Application to re-open the decision of the Court of Appeal
- The jurisdiction of superior courts of record to alter their own decisions once judgment has been entered has recently been considered by the High Court in DJL v The Central Authority (2000) 74 ALJR 706. The relevant principles are conveniently summarised in paragraphs [33] to [38] of that report. Familiar examples where alterations may be made after recording of judgment are the correction of an accidental slip or omission, the rectification of the record of the court to ensure that the order truly represents what the court had intended to pronounce, orders by consent, and the setting aside of judgments fraudulently obtained (usually by the institution of a separate proceeding). However these qualifications apart, the rule that is regarded as applicable for a Court of Appeal such as the New South Wales Court of Appeal is:
"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in our opinion, beyond recall by that court. It would, in our opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed." (per Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529, 530)
This was cited with approval by the court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in DJL v The Central Authority at para 38).
- Mr Stubberfield submits that the Court of Appeal's decision against him in 1993 was unjust in a number of respects and that this court should now re-open it and set it aside. It may be noted that his applications here satisfy none of the above exceptions. However he sought to rely upon R v Pettigrew [1997] 1 Qd R 601 which he submitted recognises an inherent power in the Queensland Court of Appeal to prevent injustice. In Pettigrew Pincus JA (with whom Mackenzie J agreed), considered that jurisdiction to reconsider a previous decision could be found in s 8(1) of the Supreme Court of Queensland Act. That section provides "The Court has all jurisdiction that is necessary for the administration of justice in Queensland". The point at issue in Pettigrew was described by Pincus JA as a narrow one. It was
"whether where this court disposes of a matter on the basis of a mistake with respect to the content of orders previously made by [another court], it has jurisdiction in an appropriate case to correct its mistake."
- His Honour considered that such a matter was covered by s 8, referring to the corresponding provision in New South Wales (s 23 of the Supreme Court Act 1970) and to cases which suggest that that section confers upon the court something more than what is described as the inherent power of the court. The third member of the court in Pettigrew, Fitzgerald P, was not prepared to hold that s 8 added materially to the court's inherent jurisdiction, but held that the court's inherent power to prevent injustice included power to set aside an earlier interlocutory order which on the basis of a factual misapprehension had resulted in a refusal of leave to appeal.
- Without doubting the correctness of the order that was made in Pettigrew, it is apparent that the decision of the High Court in DJL re-emphasises the very narrow limits within which a superior court may revisit the finality of its own decisions. Pincus JA did not in Pettigrew suggest that the Queensland Court of Appeal has any greater powers in this respect than the New South Wales Court of Appeal.
- In our view Pettigrew cannot be taken as giving any wider charter for the re-opening of judgments in civil matters than that expressed by the High Court in DJL above. It is unnecessary to decide whether any different principles might be justified in criminal jurisdiction.
- The present case is perhaps a salutary example of the danger of encouraging any expectation of a lack of finality in judgments.
- The "injustice" which Mr Stubberfield submits requires the re-opening of the 1993 decision of the Court of Appeal is that Quirk DCJ's decision was based upon a manifest error of law, that he raised the issue in the Court of Appeal and that the Court of Appeal failed to correct it or failed to deal with it. The point on which he relies was clearly enough taken before Quirk DCJ, although not so clearly exposed in the Court of Appeal. It is that in the relevant Development Control Plan ("DCP"), which formed part of the relevant Town Planning Scheme, all of Paradise Grove's land was designated "Public Open Space", in contrast to the zoning provisions of the Town Planning Scheme which zoned a substantial part of that land "Residential A". According to Mr Stubberfield it was necessary for the DCP to have been amended before any subdivisional application of such land could be favourably considered. That however is not necessarily so.
- Mr Stubberfield referred to three decisions, Cairns City Council v Hessels (1998) 98 LGERA 404, 405, MEPC Australia Limited v Westfield Limited & Ors (1998) 100 LGERA 204, and Rhema Management Services v Merle Norman (1996) 93 LGERA 51. Hessels is simply an example where considerations contained in a DCP and a strategic plan were held to justify a local authority in refusing a subdivision. It is not the case that a DCP has any inherent primacy over other parts of the planning scheme such as the actual zoning provisions; nor is there any requirement that a DCP must be amended before anything contrary to it can be decided by a council. The status of a DCP is usefully discussed in Douglas Shire Council v Fabcott & Ors (1999) 103 LGERA 195. In each case the planning scheme must be read as a whole. It was said of the scheme in that case that:
"The development control plan and the maps attached to it are statements of desire or policy indicative of the directions and results which the shire council will lawfully endeavour to achieve in the future. It is not to be taken as a provision that overrides the essential provisions of the scheme which designate the zones and uses to which the land may be put." (p 204)
The DCP was described in that case as "subsidiary and policy oriented parts of the town plan" which failed to overcome the effect of "the basic provisions where zoning rights are prescribed." Davies JA observed "a development control plan is concerned primarily with intentions for the future, not existing rights". The short statement in MEPC v Westfield upon which Mr Stubberfield relied is no more than another instance where, on the proper construction of a different planning scheme, the DCP was held to have a dominant effect.
- It is unnecessary to discuss further cases on this point, but it may be mentioned in passing that there is reason to think that certain statements made by a single judge (Thomas J) in Rhema Management Services v Merle Norman (1996) 93 LGERA 51, whilst factually correct in respect of the dual application in that case, are not accurate general statements of the law concerning rezoning applications. The most useful and authoritative statements of the inter-relationship between the various components of a Town Planning Scheme would seem to be those in Douglas Shire Council v Fabcot (above).
- It follows that there is no fundamental legal rule such as that upon which Mr Stubberfield now asserts. Quirk DCJ rejected Mr Stubberfield's argument, holding that s 5.1(6)(a) of the Local Government (Planning and Environment) Act recognises the possibility that planning grounds may outweigh any conflict between an application and a development control plan, and that some weight could be given to the land's actual zoning (Residential A) in the town planning scheme. It would seem that the Court of Appeal in 1993 thought that the point involved a question of fact, and therefore declined to deal with it. It could not in any event have been satisfactorily dealt with on appeal in the absence of evidence of the Town Planning Scheme as a whole along with appropriate submissions as to its proper construction. Mr Stubberfield may well have believed that he had a good point to argue. We leave the question open because it may conceivably be relevant to his defence to the pending action in which it is claimed that his maintenance of the appeals was an abuse of process. It is fair to point out that while this point was determined against him by Quirk DCJ it was not the subject of determination in the Court of Appeal. In this context it is worth noting the difficulties which the Court of Appeal expressly recorded in its judgment in 1993 in respect of the way in which the appeal was conducted.
"The appeal record which he prepared was defective and his notice of appeal, written outline of argument and oral submissions were confused and confusing."
- In the absence of presentation of proper material that would have permitted the matter to be decided in 1993 Mr Stubberfield cannot rightly complain, as he seeks to do, that he is a victim of injustice. We would add that even if, contrary to our view, the Court of Appeal committed an error in 1993 it was not a matter that can now be re-opened and corrected consistently with the principles expounded in DJL v The Central Authority (2000) 74 ALJR 706.
- Mr Stubberfield presented further arguments that he had been deprived of natural justice firstly by the council in making its decision, secondly by Quirk DCJ, and thirdly by the Court of Appeal in 1993, which he submitted deprived him of the opportunity of presenting arguments on certain points. We do not propose to deal with these matters at length. We have read the transcript of the proceedings before the Court of Appeal to which reference has been made and we are satisfied that there was no deprivation of natural justice in the Court of Appeal and no error in its failing to uphold his complaints on these issues.
- Finally it is noted that the Redland Shire Council, which was a party to the 1993 appeal has not been made a party to the current proceedings. It would certainly be a denial of natural justice to that party if the 1993 appeal decision were to be altered without it being heard.
- A further ground was argued as a basis for re-opening the 1993 decision. It is based upon an allegation, now raised for the first time, that Paradise Grove Proprietary Limited has never been validly incorporated. An interesting and carefully considered argument consisting of 192 paragraphs, apparently inspired by R v Hughes (2000) 74 ALJR 802, has been submitted to support the contention that ss 120 and 121 of the Corporations Law of the State of Queensland are invalid under s 109 of the Constitution. It would follow if this were so that the respondent and indeed all companies incorporated since 1989 in Queensland or for that matter any other State of Australia were not validly incorporated. It is unnecessary for this Court to deal with that argument.
- The application seeks the re-opening of the previous Court of Appeal decision for the further purpose of determining the question whether the respondent was validly incorporated and consequentially whether the proceedings were futile, inutile and abortive. Quite simply such a question was never in issue in the original proceedings from which the appeal was brought. If the validity of the incorporation of a party is to be in issue it must be specifically raised and determined in those proceedings. An erroneous decision might then be a ground of appeal. Litigation would be endless if afterthought points of this kind could be raised after litigation has terminated.
- For all the above reasons the application to re-open the 1993 decision should be refused.
Leave to appeal Skoien DCJ's decision on costs
- An extension of time of more than six years would be necessary in order to entertain this application. The legislation affecting appeals from that court to this has been substantially altered since that time. Without undertaking a detailed analysis of the legislation it is enough to say that if there is power to extend the time no good reason is shown why it should be exercised. Mr Stubberfield's continued pursuit of the southern land application when he admitted that he had no real interest in it, followed by his voluntary withdrawal of it, would seem to make the decision very difficult to challenge. In fairness to Mr Stubberfield it may be mentioned in passing that the "frivolous and vexatious finding" which he is so anxious to upset was not based upon any finding of legal untenability of the appeal, and that in any event, in order to succeed in its present action against him Paradise Grove will have to prove more than this to succeed in either cause of action (Butler v Simmonds Crowley and Galvin [1999] QCA 475). Indeed counsel had conceded that there were arguable issues. The costs order followed upon Mr Stubberfield's insistence on mounting a larger case than he was entitled to present, and his perhaps unwise and unnecessary withdrawal of the appeal after the ruling that limited the issues that he could present.
- We would not be prepared to grant leave to appeal against that order in the present circumstances which include a very substantial and inadequately explained delay.
Allegation that illegal conspiracy between officers of Paradise Grove and Redland Shire Council prejudiced proceedings
- The absence of the Redland Shire Council as a party to the present application immediately suggests that such allegations cannot properly be raised here. The allegations are of conspiracy and misconduct against the company and the council, essentially of improper discovery in the proceedings below and in particular of those parties having sealed the subdivisional plan and engaged in "covert subdivision activity" while proceedings in the Planning and Environment Court were pending. Mr Stubberfield complains inter alia that there was no discovery of documents relevant to the production and sealing of the plan. We do not understand it to be suggested that there was any fraud in the conduct of the appeal to this court. Insofar as it may be alleged that the judgment in the Planning and Environment Court was obtained by fraud, that is not a matter that could be properly determined in an application of the present kind. Apart from the absence of the Redland Shire Council as a party there would be factual disputes which could not be satisfactorily determined in a summary way. This is not a case in which it would be desirable to remit issues to the trial division under s 68(3) of the Supreme Court of Queensland Act 1991. Plainly if there were to be any right asserted to set aside that judgment it should be the subject of a separate action (McDonald v McDonald (1965) 113 CLR 529, 532-533; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 699; DJL v The Central Authority above at para 37).
Application for stays of Supreme Court orders for costs
- An appeal has been filed in respect of Shepherdson J's order of 14 February, but no appeal is pending from the order of Douglas J of 20 March or of White J of 9 May. The strength or otherwise of the appeal against Shepherdson J's order was not argued. No grounds have been advanced suggestive of error in any of the other determinations. There is no basis on which a stay of any of these orders ought to be granted. Those applications will therefore be refused.
Orders
- The application of 2 June, as amended, is dismissed. Mr Stubberfield's trustee (Mr Rees) was granted leave to appear by his solicitor, but the appearance was voluntary and we see no good reason to order the applicant to pay the costs of that appearance. The applicant should however be ordered to pay the costs of the respondent, Paradise Grove Pty Ltd, to be assessed.