DISTRICT COURT OF QUEENSLAND

1. [1]
   On 22 June 2007 the Registrar of the District Court, Maroochydore, with the written consent of the parties, gave judgment in a proceeding pursuant to rule 666 Uniform Civil Procedure Rules (UCPR) in the following terms:

“1. Pursuant to the provisions of Part 19of the Property Law Act 1974 the applicant do all things and sign all documents as may be necessary to transfer to the respondent all of her right, title and interest in the title to the land situated at 20 Sapphire Court, Nambour described as Lot 10 on RP109999, County of Canning, Parish of Maroochy, title reference 13960100.

2. In consideration of such transfer the respondent shall pay to the applicant the sum of $40,000 such sum to be paid by way of bank cheque, on or before 6 July 2007 and the applicant shall accept such sum in full and final satisfaction of all matters in dispute between them.

3. If the sum of $40,000 is not paid to the applicant on or before 6 July 2007, the respondent shall pay the applicant’s legal costs of enforcing these orders.

4. Each of the parties be declared to be the owner of all other property in their respective possessions.

5. Each party shall pay their own costs of and incidental to this application.”

2. [2]
   The applicant referred to in the judgment was C (C). The respondent was G (G). They had been in a defacto relationship.

3. [3]
   Lot 10 was held in joint tenancy by C and G. 

4. [4]
   These reasons deal with two applications in the proceeding finalised by the judgment, one by each of the parties to the defunct de-facto relationship.

5. [5]
   The former male partner’s (G) application filed 24 October 2007 was:

“1. A declaration that by her execution of Property Agents and Motor Dealers form 22(a) on either or both 22 and/or 24 August 2007, the applicant C she having prior to and/or at the time of such execution the benefit of independent and qualified legal counsel or advice made an election to continue with and to take the benefit of consent orders entered into between the parties in this Honourable Court on 22 June 2007 without any variation, alteration or adjustment to those orders and;

2. A declaration consequential upon declaration 1 of these orders that by her election, the applicant C is estopped from raising any further or additional claims under Part 19 of the Property Law Act 1974 against the account of the respondent;

3. An order that the applicant C execute all such other forms and documents as may reasonably be required to be signed or done by her to complete the sale referred to at order 3 of these orders including (but not limited to) the execution of any and all banking instructions, trust account authorities and the like that should be necessary to enable the respondent G to discharge his obligations to pay the applicant the sum of $40,000 pursuant to the said consent orders;

4. In default of compliance by the said C to the terms of orders 3 and 4 of these orders, the Registrar of this Honourable Court shall upon their being duly satisfied of such non-compliance by the applicant and for which purpose a duly sworn and filed affidavit of the respondent or his solicitor deposing to such non-compliance shall be sufficient evidence, be authorised to sign any and all necessary forms and other documents as may be required to give effect to these orders;

5. An order that the applicant C pay the respondent’s costs and outlays of and incidental to this application in a proceeding with the same to be fixed in the sum of $7700 (inclusive of GST and counsel’s fees) or in such other sum or upon such other terms or basis as to this Honourable Court may seem meet;

6. Such further or other declaration, direction or order as to this Honourable Court may appear just and expedient.”

6. [6]
   The former female partner’s (C) application filed 30 November 2007 was:

“1. That the consent orders made on 22 June 2007 be set aside;

2. That the court make such further orders as this Honourable Court may deem appropriate;

3. That the respondent pay the applicant’s costs of and incidental to this application.”

7. [7]
   Although it was not the first application filed it is convenient to deal with C’s application first.

8. [8]
   On 16 February 2006 C brought an application in the District Court at Maroochydore for property adjustment orders pursuant to Part 19 of the Property Law Act 1974.  The consent order referred to above was made in that proceeding.  Both parties were legally represented.

9. [9]
   C did not transfer her interest in the property. G did not pay the $40,000 on or before 6 July 2007 or at all. Apart from the present application no step has been taken in the court to enforce any part of the judgment.

10. [10]
    On 22 and 24 August 2007 C with G signed a Form 22(a) appointment of real estate agent to sell the property in question by auction. The reserve price was set at $315,000 which was the value placed on the property by a registered valuer apparently engaged by both parties. The valuation was dated 16 March 2007. It may be accepted that valuation informed the compromise represented by the consent order. As a result of the auction a contract of sale eventuated at a price of $435,000. This contract did not complete. Advice was received on 2 January 2008 that it had been terminated apparently for good cause.

11. [11]
    The property was listed with a real estate agent in January 2008. On 8 January 2008 C signed a Form 22(a) appointment of agent. The price reserved was $450,000. A price adjustment authority was signed by C on 21 January 2008 reducing that price to $419,000. Since that time a contract of sale has been entered into for $400,000.

12. [12]
    On 18 February 2008 C obtained a valuation of the property by another registered valuer. That valuation was $390,000.

13. [13]
    A judgment by the Registrar pursuant to rule 666 UCPR applies as if it had been given or made by the court.^[1] 

14. [14]
    Putting rules 667 and 668 UCPR to one side for the moment, a consent order by the court that finally disposes of the issues between the parties to proceedings in the court has “always been regarded as a judicial determination of those issues and nonetheless so because they are made in accordance with a contract between the parties--- When the parties to a contract choose to have the contract embodied in a consent order the court ‘will only interfere with such an order on the same grounds as it would with any other contract’ per Lord Denning MR in Siebe Gorman Ltd v Pneupac Ltd [1982] 1 WLR 185 at 189; [1982] 1 All ER 377 at 380.  And see Harvey v Phillips (1956) 95 CLR 235 at 243-4; Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 at 280”.^[2]  Once a judgment finally disposing of a proceeding is passed and entered, the court has no inherent jurisdiction to set it aside.^[3] 

15. [15]
    Rules 667 and 668 UCPR provide jurisdiction to a court to vary or set aside an order it has made. Rule 667 can have no application in the present case and so it may be put aside.

16. [16]
    C’s application calls in aid rule 668 UCPR. The rule applies in circumstances where either:

facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or

facts are discovered after an order is made that if discovered in time would have entitled the person against whom the order is made to a different order. 

In the exercise of its discretion the court “may stay enforcement of the order against the person or give other appropriate relief”. 

17. [17]
    C as I understand it has submitted that facts have arisen since the order was made which entitle her to be relieved from it. Those facts are:

that contracts of sale were entered into for a price considerably higher than the valuation which underlay the compromise embodied in the judgment;

that G will not keep the property.  As to this had C transferred her interest as ordered and G paid $40,000 he could have immediately sold the property;

neither party has complied with the consent orders or sought to enforce them but have rather acted to jointly sell the property. 

18. [18]
    C has also submitted that facts have been discovered after the order was made which if discovered before the order was made would have entitled her to a different order namely that in exchange for transferring her interest in the property she receive a greater sum of money. As to this she must show that there is evidence which would establish that at the time of the compromise embodied in the judgment the property was of a substantially greater value than $315,000, that evidence of this could not have been obtained with reasonable diligence prior to the compromise embodied in the consent order and that if it had been obtained it would have resulted in a compromise with a greater sum to be paid to her.^[4]

19. [19]
    It has been held that it is not necessary that the person seeking the favourable exercise of the discretion under rule 668 have an absolute right to relief^[5] rather that the after discovered facts be such that the courts discretion under the Rule is enlivened.^[6]

20. [20]
    The operation of rule 668 is available to a person “against whom the order is made”. C is such a person. The judgment required she transfer her interest in the real property to G and G pay her $40,000.

21. [21]
    The question is whether the discretion should be exercised as C’s seeks.

• The judgment was based on the consent of the parties; on an agreement between the parties.  It has been said that this is a relevant factor in the exercise of the discretion Smith v Smith [1987] 2 Qd R 807 at 810 per Thomas J.  In the same case de Jersey J (as he then was) Andrews CJ concurring, said “the circumstances in which consent orders such as this, final in character, may be varied are very limited see General Credits v Ebsworth [1986] 2 Qd R 162 at 164-5.  Although as I have said the general terms of O.45, r.1,^[7] would appear to enable the use of that rule for the variation of orders made by consent the circumstances of that consent should still nevertheless in my view weigh heavily in the exercise of the discretion”.^[8]  Similarly in Rockett & Anor v The Proprietors of “The Sands” BUP 82 [2001] QCA 99, a case about rule 668 UCPR, McPherson JA speaking of a consent order said “courts have only limited powers to set aside their orders and the power to do so is even more restricted when the order in question has been made by consent of the parties to it; at least that is so when a compromise is involved.”

• The sale price in subsequent contracts of sale and the 2008 valuation are advanced as establishing the value of the property which if discovered prior to the compromise would have entitled C to a different order.  I think there are problems with that.  I doubt it can be concluded it would have “entitled” her to a different order although it may have informed a different compromise.  Nor is it clear these subsequent contracts and the 2008 valuation establish the value of the property at the time of the compromise embodied in the consent orders. See Jacqueline Sands v David Leslie Henderson (2007) NSWSC 1200 where McLaughlin J came to a similar view.  In that case an auction two months after a valuation informing an agreement between parties reflected in a consent order by a court disposing of the issues between them resulted in a price considerably greater than the valuation.  There is the added difficulty of showing that evidence of substantially greater value could not have been obtained shortly prior to the compromise.  

• It seems to me C is on stronger ground when consideration is given to whether facts have arisen after the orders were made.  G did not comply with the order.   Nor did C.  Instead, as joint owners of the property, G and C acted together to achieve its sale.  Each will execute a transfer of the property to the purchasers.  As events have unfolded the judgment will not operate according to its terms.  G has not paid $40,000 to C and C has not transferred her interest in the property to G.  Rather, acting together, they will both transfer their interest in the property to a purchaser.  Sale of the property will probably occur for $400,000 a substantially greater sum than that which informed the compromise.

22. [22]
    G’s application for declarations and consequential orders is based upon the consent judgment. Apart from the question whether the court has any jurisdiction to make declarations in a proceeding which has been finalised by the judgment I am not persuaded it should be concluded that by signing a Form 22(a) appointment of agent, C has unequivocally elected to take the benefit of the consent order nor that thereby she is estopped from making any further or additional claim under Part 19 Property Law Act 1974 (if the discretion under the Rule 668 UCPR is exercised in her favour). 

23. [23]
    G has not sought the court’s assistance in the proceeding to enforce the court’s order that C transfer all her right title and interest in the property to him. This no doubt was because, as he says in his affidavit filed 24 October 2007 in support of his application, he could not raise the money to pay the $40,000 to C.

24. [24]
    Rule 668 is expressed in wide terms. In considering whether to exercise the discretion all the circumstances must be considered including whether there is any circumstance existing in which, apart from rule 668, a consent judgment would be set aside. As to that in Harvey v Phillips (1956) 95 CLR 235 the High Court said at 243- 4

“the question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.  The rule appears rather from positive statements of the grounds that suffice (see Halsbury’s Laws of England Vol 26, 2nd Edition, pages 84,85); but there is a dictum of Lindley LJ which is distinct enough: “--- nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud, but upon any grounds which invalidate the agreement it expressed in a more formal way than usual--- to my mind the only question is whether the agreement on which the consent order was based can be invalidated or not.  Of course if that agreement cannot be invalidated the consent order is good.” Huddersfield Banking Co Ltd v Henry Lister & Son Ltd (1895) 2 Ch 273, 280”.

25. [25]
    C has the consent judgment which she may have sought to enforce. She has not sought to do so. Nor (until the present application, no doubt provoked by C’s attitude) has G. Rather C (sensibly) joined with G in executing authority for the property to be sold and its equity realised.

26. [26]
    Written submissions of counsel were provided at the hearing on 29 February 2008. I will have them marked as Exhibit 1. On or about the 10 March 2008 Counsel for G provided the court with further written submissions under cover of a letter from G’s solicitor dated 10 March 2008. I delayed giving judgment and had my associate enquire of C’s legal advisors whether they wished to respond. Counsel for C has provided brief written submissions in response. These additional submissions and the letter from G’s solicitor will be marked Exhibit 2.

27. [27]
    The additional written submissions of counsel for G argue that:

C’s application contends that the consent order was wrongly made or erroneous and thus is not amenable to rule 668 as distinct from an order that was accepted as correct at the time it was made but facts have since arisen which may call for relief under rule 668.  Woods v Sheriff of Queensland (1985) 6 QLJ 163; IVI Pty Ltd v Baycrown Pty Ltd [2006] QCA 461; Rockett & Anor v The Proprietors of “The Sands” BUP 82 [2001] QCA 99.

C’s application impermissibly attempts to amalgamate the two separate bases of relief provided for in Rule 668(1)(a) and (b).

28. [28]
    I reject these submissions. It is apparent it is not contended the court in making the order was wrong. At the time the order was made it was not wrong. Nor does C’s application depend upon an amalgamation of rule 668(1)(a) and (b). Events have moved beyond then. Since new facts have arisen which establish that in all probability the property will realise a sale price of $400,000.

29. [29]
    I have come to the view I should exercise the discretion in C’s favour. I set aside the Judgment given in the District Court at Maroochydore on 22 June 2007. I direct the parties comply with District Court Practice Direction No. 5 of 2004 to the extent they have not already done so within 28 days. I further direct that at the expiration of 42 days the matter be placed on the callover list of matters for trial. There will be no orders as to costs.