Partram Developments Pty Ltd v Registrar of Cooperative Housing Societies
[2024] QSC 191
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Partram Developments Pty Ltd v Registrar of Cooperative Housing Societies[2024] QSC 191
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Partram Developments Pty Ltd v Registrar of Cooperative Housing Societies[2024] QSC 191
Partram Developments Pty Ltd v Registrar of Cooperative Housing Societies[2024] QSC 191
SUPREME COURT OF QUEENSLAND
CITATION: | Partram Developments Pty Ltd v The Registrar of Cooperative Housing Societies [2024] QSC 191 |
PARTIES: | PARTRAM DEVELOPMENTS PTY LTD ACN 106 229 672 (first plaintiff) ROSS GLEN FEATHER (second plaintiff) v THE REGISTRAR OF COOPERATIVE HOUSING SOCIETIES (defendant) |
FILE NO: | BS 195 of 2019 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 27 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 April 2024 |
JUDGE: | Hindman J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – CONSENT JUDGMENTS AND ORDERS – where the applicant applies to set aside consent orders on several grounds – whether the orders reflects the Court’s intention at the time it was made – whether facts were discovered after the order was made that, if discovered in time, would have entitled the person against whom the order is made to a different order – whether the order was obtained by fraud – whether the Court should exercise its inherent jurisdiction to set aside consent orders Uniform Civil Procedure Rules 1999 (Qld) rr. 5, 221, 225, 371, 667(2)(b), 667(2)(d), 668 Property Law Act 1974 (Qld) s. 85 Financial Intermediaries Act 1996 (Qld) AKS Investments Pty Ltd v Gazal [2015] QSC 247, cited Assets Co Ltd v Mere Roihi [1905] AC 176, cited Butler v Fairclough (1917) 23 CLR 78, cited Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165, cited Harvey v Phillips (1956) 95 CLR 235, cited IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428, cited Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188, cited Rodgers v ANZ Banking Group [2005] QSC 365, cited Smith v Hughes (1871) LR 6 QB 597, cited Taylor v Johnson (1983) 151 CLR 422, cited The Ampthill Peerage [1977] AC 547, cited Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, cited Young v Hoger [2001] QCA 453, cited |
COUNSEL: | RG Feather (solicitor, second plaintiff, and director of the first plaintiff), with leave, for the plaintiffs EL Hoiberg for the defendant |
SOLICITORS: | Clayton Utz for the defendant |
Introduction
- [1]The plaintiffs apply to set aside a consent order made on 29 November 2023[1] that discontinued the proceeding. The plaintiffs at all material times to this application have been represented by Mr Feather, who is both the second plaintiff and the sole director of the first plaintiff. Mr Feather is also a solicitor, and a partner of the law firm previously on the record for the plaintiffs.
- [2]The consent order was made on the second day of a scheduled three day trial. The apparent impetus for the discontinuance by the plaintiffs was the late production of a particular document (amongst a bundle of five) by the defendant to the plaintiffs, that had been recently obtained by the defendant through non-party disclosure. The plaintiffs say that the defendant produced those documents to the plaintiffs ten minutes before the commencement of the trial.[2] The defendant expressed an intention to tender the documents (said to be important documents) through an appropriate witness if the documents did not go into evidence by consent, although at the time of the discontinuance of the proceeding the documents had not yet been admitted into evidence in the proceeding.
- [3]The plaintiffs say that they made an incorrect assumption about the effect of the particular document when seeking to discontinue the proceeding. The plaintiffs say certain conduct of the defendant and its legal representatives led or contributed to that incorrect assumption. The plaintiffs say that the defendant and its legal representatives ought to have explained to the plaintiffs the true effect of the particular document, and that the failure to do so means that the consent order was obtained by fraud. Rule 667(2)(b) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides that the Court may set aside an order at any time if the order was obtained by fraud.
- [4]In the alternative, the plaintiffs claim that the consent order should be set aside:
- on the basis that the order does not reflect the Court’s intention, under r. 667(2)(d) UCPR;
- pursuant to the Court’s inherent jurisdiction;
- under r. 668 UCPR based on the discovery of new facts after the order was made. Rule 668 UCPR provides:
- 668Matters arising after order
- (1)This rule applies if-
- (a)facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
- (b)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 an order or decision in the person’s favour or to a different order.
- (2)On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
- (3)Without limiting subrule (2), the court may do one or more of the following -
- (a)direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
- (b)set aside or vary the order;
- (c)make an order directing entry of satisfaction of the judgment to be made.
- [5]No asserted basis for setting aside the consent order is made out for the reasons given below. Accordingly I will dismiss the application.
Background
- [6]The plaintiffs and Mr Jazbani owned several properties in Aitkenvale, Townsville, that they acquired for the purpose of property redevelopment. The properties were subject to mortgages in favour of a cooperative housing society known as Waratah Co-operative Housing Society No. 37 Limited (Waratah 37).
- [7]Consequent of default on the mortgages in July 2007, Waratah 37 exercised its power of sale under the Property Law Act 1974 (Qld) (PLA). Waratah 37 sold the properties in two tranches in late 2007 and early 2008.
- [8]In December 2012, Messrs McCann and Killer of Grant Thornton were appointed as receivers and managers of Waratah 37.
- [9]In November 2013, the plaintiffs commenced proceedings in the Supreme Court of Queensland against Waratah 37 alleging that Waratah 37 had breached its duty at common law and under s. 85 PLA to take reasonable care to ensure the properties were sold at market value.
- [10]It appears uncontentious that Waratah 37, up until about 18 March 2013, had in place an insurance policy that would have responded to the plaintiffs’ claim against Waratah 37. The policy was for the period 1 June 2012 to 1 June 2013. That policy was cancelled in about February 2013 by a former director of Waratah 37.
- [11]
- [12]Waratah 37 went into liquidation in about May 2017. The plaintiffs lodged a proof of debt in the liquidation in about June 2022 that was rejected by the liquidators in about February 2023: no appeal against that rejection was made.
- [13]On 15 March 2019, the plaintiffs commenced this proceeding against the defendant. The defendant is the regulator of cooperative housing societies in Queensland under the Financial Intermediaries Act 1996 (Qld).
- [14]The plaintiffs’ primary claim made against the defendant was that the defendant breached its statutory and common law duties owed to the plaintiffs by failing to exercise its powers in such a way that ensured Waratah 37 was not left without a policy of professional indemnity insurance that would respond to claims made against it, specifically plaintiffs’ claim against Waratah 37 for breach of duty owed to the plaintiffs at common law and under s. 85 PLA.[5]
- [15]The three day trial of this proceeding commenced 27 November 2023. Mr Feather appeared for himself, and with leave for the second plaintiff. The defendant was represented by counsel (including senior counsel) and solicitors.
- [16]On day one of the trial, whilst preliminary matters were being dealt with, the defendant indicated that it sought to add five additional documents to the tender bundle[6] that it had recently obtained from Grant Thornton, the receivers of Waratah 37, through non-party disclosure.
- [17]The documents had only been recently produced by the defendant to the plaintiffs – see at [2] above. Mr Feather says he was merely handed the documents at that time.[7]
- [18]One of the documents, and the only relevant document for present purposes, was a professional indemnity insurance policy for the period from 22 February 2013 to 22 February 2014, listing Waratah 37 as one of the insureds (Receivers’ Insurance Policy).[8] The policy expressly applied retrospectively from 3 December 2012, which was the date the receivers were appointed, meaning that it did not cover claims resulting from an act, error or omission occurring prior to that date.[9]
- [19]Before the plaintiffs were required to open their case at trial, Mr Feather was given some time to consider the plaintiffs’ position in relation to the five documents: Mr Feather requested and the Court stood down for 20 minutes.
- [20]When the Court resumed, the following exchange took place:
HER HONOUR: Are you ready to proceed, Mr Feather?
MR FEATHER: Well, it – well, I have the documents. I’m not quite sure what they mean and the other side haven’t indicated how that might affect their defence or the case. The matter will go for a couple of days. I would ask the court to continue for the moment until I can make more sense out of it. Perhaps hear what the other side say about the documents – are they significant, are they not? I don’t know if your Honour’s had a look at them yet.
HER HONOUR: No. No. But you’re not agreeing to them being tendered by consent at the moment.
MR FEATHER: No, your Honour.
HER HONOUR: That’s where we’re at. Okay.
MR FEATHER: Yes, thank you.
HER HONOUR: Well, then let’s start your case.
MR FEATHER: Thank you, your Honour.
MR THOMPSON: Can I just foreshadow, your honour, that in those circumstances, we will seek to call ---
HER HONOUR: You might need a witness.
MR THOMPSON: --- a witness tomorrow.
HER HONOUR: Yes.
MR THOMPSON: Yes.
HER HONOUR: Understood.
MR THOMPSON: Thank you.
- [21]After dealing with some other preliminary matters, Mr Feather then opened the case for the plaintiffs, and subsequently gave his evidence-in-chief. There was cross-examination of Mr Feather on the documents (commencing at T1-38, L33) said to permit Mr Feather to comment upon them. At that point in time the Court marked the five documents “G” for identification.
- [22]The relevant cross-examination was as follows:
MR THOMPSON: ….
So they’re respectively numbered 202(a), 204(a), 204(b), 204(c) and 208(a). And – so do you understand – and I won’t ask you to interpret the documents, Mr Feather, but what I’m suggesting to you is that the receivers had effected a professional indemnity insurance cover [indistinct] Waratah – I’m sorry, identifying Waratah 37 as an insured, effective from the 22nd of February 2013 to the 22nd of February 2014 – that’s looking at document 204(a) – for an insured sum of $10 million. And there’s correspondence with their broker and between the brokers and the receivers in relation to effecting that policy of insurance. And so even though, as we know, the policy of insurance which was effected by Waratah 37 previously, by its directors, was cancelled in February 2013 – in fact, I think, cancelled effectively on the 18th of March 2013 – there was a policy of professional indemnity insurance in place. Now, I’m not suggesting to you that we respond to your claim, but what I’m putting to you is that if the Registrar had, as you would contend, taken steps to ensure the existence of a policy of professional indemnity insurance, the response would have been from the receivers, “That’s exactly what we’ve done and we have a policy of professional indemnity cover in place.” And so what I’m suggesting to you is the allegations that you advance in your statement of claim that the Registrar should have insisted that the receivers, or someone else, have a policy of professional indemnity insurance is misconceived because one existed, and it existed for $10 million cover. Now, I’m not suggesting it will respond to your claims in relation to the section 85 sale – or complaint in 2007. I’m suggesting that the Registrar taking steps to see whether – or insist on a policy of professional indemnity insurance being in place would have insist on a policy of professional indemnity insurance being in place would have been met with a response that, in fact, there was one. Do you accept that? --- Well, been met with a response that, in fact, there was one. Do you accept that --- Well, looking at this, there seems to be a policy. Whether I can agree with your proposition, I – I would need some time to consider this and get some advice about it.
All right. And I’m suggesting to you that therefore, as a matter of causation, there was no point in the Registrar imposing a condition or a term of the management agreement, that you’ve referred to as a failure on the part of the Registrar, that professional indemnity insurance be taken out because the receiver have already done it? --- I don’t know if that is this.
And more relevantly, that that was likely to be the response the Registrar would have received if it had said there should be a professional indemnity policy. All right. Just moving on to something else.
- [23]Mr Feather did not give any evidence in re-examination. There was only one other witness for the plaintiffs who was not available until the following day. Accordingly, the first day of the trial finished shortly after noon.
- [24]Subsequently the defendant’s solicitor (Mr Sharry) and senior counsel for the defendant (Mr Thompson KC) had a discussion with Mr Feather, in which Mr Feather consented to the defendant tendering the additional documents without the need to call one of the receivers (through whom the documents would otherwise be proved).[10] Subsequently Mr Feather reconsidered his position and advised the defendant’s solicitors that he did require Mr Killer, one of the receivers, for cross-examination.[11] However, Mr Killer was no longer available.[12] The other receiver, Mr McCann, was available to give evidence remotely on the third day of trial.[13] These matters were agitated before the Court at the beginning of day two of the trial.
- [25]The plaintiffs’ second witness then completed his evidence on day two of the trial. Attention then returned to the Receivers’ Insurance Policy. The following exchange occurred:[14]
MR FEATHER: Did I understand your Honour to say that the document is likely to go in, in any event?
HER HONOUR: Well, the defendants’ going to call one of the receivers. The receiver will prove that their company records – they’ll be admissible under the Evidence Act as business records.
MR FEATHER: Has your Honour ---
HER HONOUR: I mean, that – if – you can, of course, require them to be proved in that way, which means you’ll have one of the receivers available for cross-examination.
MR FEATHER: Has – has your Honour had a look at the documents? I – I’m just heading this way. The whole –
HER HONOUR: No, I didn’t, apart from the fact that they were cross-examined on yesterday, so I’m aware that it appears that the receivers, in fact, did put in place some form of insurance policy and, obviously, you weren’t aware of that.
MR FEATHER: Well, I’m – I’m just not wanting to waste the court’s time and everybody else’s. What I’m – what I’m thinking is if it was to go in to evidence and your Honour was to accept it as a policy at the time, the whole – the plaintiffs’ whole case against the Registrar will fall away.
HER HONOUR: Well, one aspect of your case potentially will fall away. I think that’s right. Because of the plaintiffs’ case, as I understand it, is that one of the allegations of negligence is that you say the Registrar failed to ensure that the receivers had a policy in place.
MR FEATHER: Yes, your honour. I think that pervades them to ---
HER HONOUR: That would be a limb of it – of the plaintiffs’ case which looks like it would have some serious problems.
MR FEATHER: Yes, your honour. Well, now would be a good time to make a decision on that. I’m – could we have ---
HER HONOUR: Do you want some time? We can have a morning tea break.
MR FEATHER: I’m – I guess – I don’t want to precipitate a certain course if there’s a chance that your Honour might not come to the same conclusion about the documents as the defendants ---
HER HONOUR: Well, no, we – as I said, I haven’t looked at it carefully. I’ve just looked at it as we went through the cross-examination yesterday.
MR FEATHER: Well ---
HER HONOUR: I mean, it might not – no one’s suggested whether it responses to the particular circumstances, but then I understood your case to be that you weren’t contending for any particular terms of an insurance policy, just a generic ---
MR FEATHER: It’s just a general ---
HER HONOUR: --- policy.
MR FEATHER: Yes, your Honour. I’m just wondering – as I say, I don’t want it to be a waste of everybody’s time and effort – if we had a short adjournment. I’m happy to have it go into evidence now so your Honour could have a look at it and if you – I don’t know if your Honour was minded to – to the view as would be proposed by the defendants.
HER HONOUR: Well, I’m not going to make any decision about anything until the close of the case and when I’ve heard closing submissions.
MR FEATHER: Yes.
HER HONOUR: So all I’m concerned about at the moment is whether you want to close your case or, now that you know that the defendant is going to be able to reduce one of the receivers through whom they could tender these documents, even if you object to them going in by consent ---
MR FEATHER: Yes.
HER HONOUR: --- whether that impacts on whether you want to close your case.
MR FEATHER: Well, could we have an adjournment for 15 minutes and I’ll –
- [26]The Court granted Mr Feather a 20 minute adjournment to consider whether the plaintiffs wished to close their case.
- [27]
HER HONOUR: Yes, Mr Feather.
MR FEATHER: Well, your Honour, I’ve decided that if the document is in – goes into evidence, it looks like a professional indemnity insurance policy. That’s the linchpin of the plaintiffs’ case, and there’s no point in wasting the court’s time and the defendants’ time.
HER HONOUR: Are you indicating to me that you’d like to discontinue the proceedings?
MR FEATHER: Discontinue, yes. Thank you, your Honour.
- [28]The Court granted the plaintiffs leave to discontinue the proceeding.[16] The parties were then given time to consider if agreement about costs could be reached.
- [29]The following morning (19 November 2023), Mr Feather requested a meeting with the defendant’s solicitors.[17] After that meeting, the parties attended court at 2:15pm and handed up a consent order, dismissing the proceeding and ordering that the plaintiffs’ pay the defendant’s costs on a standard basis up to 17 August 2021, and on an indemnity basis afterwards.[18] The consent order was made by the Court.
Grounds for setting aside the consent order
- [30]The plaintiffs filed an application on 4 March 2024 (amended on 21 March 2024) seeking to set aside the consent order.[19] The grounds of that application are:
- the order does not reflect the Court’s intention at the time it was made, under r. 667(2)(d) UCPR;
- facts were discovered after the order was made that, if discovered in time, would have entitled the person against whom the order is made to a different order, under r. 668(1)(b) UCPR;
- the order was obtained by fraud, under r. 667(2)(b) UCPR;
- the Court’s inherent jurisdiction to set aside consent orders where grounds exist to render a simple contract void or voidable.
Does the consent order reflect the Court’s intention at the time it was made
- [31]The plaintiffs argue that the consent order fails to reflect the Court’s intention at the time it was made because the Court may have been similarly misled by the documents produced by the defendant on the first day of trial.[20]
- [32]However, at the time the consent order was made, the Court was not required to form a view about any of the documents, including the Receivers’ Insurance Policy, as the documents had not been tendered into evidence and no submissions had yet been made about the documents. The plaintiffs sought leave to discontinue the proceeding before the Court had considered the documents in any detail.
- [33]The consent order reflects the Court’s intention at the time it was made – to formalise the parties’ agreement relating to the discontinuance of the proceeding.
- [34]This ground is not made out.
Discovery of new facts
- [35]The plaintiffs argue that the significant discovery of new facts made after the consent order is (1) the retroactive date and condition in the Receivers’ Insurance Policy or (2) the alleged fact that the Receivers’ Insurance Policy was irrelevant to the proceeding.[21] This discovery meant that it then became appreciated by the plaintiffs that the insurance detailed in the Receivers’ Insurance Policy would not respond to the plaintiffs’ claim against Waratah 37.[22]
- [36]This is insufficient to enliven r. 668(1)(b) UCPR. There is no new fact discovered after the consent order was made. The relevant fact could only be the production of the Receivers’ Insurance Policy which occurred before the consent order was made. The plaintiffs had the opportunity to read that document before the consent order was made.
- [37]The principles covering the introduction of fresh evidence in an appeal are analogous here. There are two categories of fresh evidence:[23]
- those where all that is involved is the discovery by the unsuccessful party of fresh evidence. In such a case, the successful party should be deprived of the verdict in its favour only if the unsuccessful party persuades the Court that there was no lack of reasonable diligence on its part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict;
- those where the unavailability of the evidence at trial resulted from an incorrect ruling on its admissibility, or surprise, malpractice or fraud, or misconduct by the successful party such as a significant failure to comply with an order for discovery.
- [38]Neither category is invoked here. The evidence (the Receivers’ Insurance Policy) was available to the plaintiffs at the relevant time. A failure by the plaintiffs to consider the evidence properly at the time does not make it fresh evidence.[24] Mr Feather says he did not conduct a review of the Receivers’ Insurance Policy until after 13 December 2023, at which point the receivers informed his solicitors that the insurance policy did not address the plaintiffs’ claim against Waratah 37.[25]
- [39]This ground is not made out.
Fraud
- [40]The plaintiffs claim that the defendant and the defendant’s legal representatives were involved in fraudulent conduct.[26] The defendant’s relevant legal representatives are identified as being Mr Thompson KC (the defendant’s senior counsel at trial), Mr Sharry (partner of Clayton Utz, solicitors for the defendant), and Mr Smyth (General Counsel of Queensland Treasury Corporation).
- [41]A judgment alleged to have been procured by fraud will not be set aside merely for the asking. The Court must consider the public interest in the finality of legal proceedings when evaluating fraud claims.[27] Allegations of fraud must be established by the strict proof which such a charge requires.[28]
- [42]In Wentworth v Rogers (No 5),[29] Kirby P (with whom Hope and Samuel JJA agreed) at 538-539 summarised the legal principles relating to proceedings to have a judgment set aside based on fraud:
In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of the witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
- [43]Over the years, various definitions of fraud have emerged, and none is considered superior to the other.[30] The case of Young v Hoger[31] defines fraud as ‘wilful blindness, an abstention from inquiry for fear of learning the truth,[32] and possibly reckless indifference in other respects but that, in either case, it must amount to actual dishonesty.’[33]
- [44]
- [45]The plaintiffs have not proved fraud to the requisite standard.[36] It is plain from Mr Feather’s evidence[37] that despite Mr Feather having a concern that the Receivers’ Insurance Policy may be fatal to the plaintiffs’ case he made assumptions as to its content and effect. Mr Feather’s wrong assumption as to the effect of the Receivers’ Insurance Policy is not enough to prove that the defendant or any of its legal representatives engaged in fraud.
- [46]Whilst he complains that the defendant and its legal representatives “induced” that assumption I do not find that to be so. In particular:
- the provision of the Receivers’ Insurance Policy to the plaintiffs in a clear plastic sleeve is of no consequence,[38] nor is the fact that the retroactive date of the policy was on the second page of a double-sided document;
- the defendant agreed to time being given to the plaintiffs to consider the documents;
- the defendant and its legal representatives were under no obligation to explain the content and effect of the Receivers’ Insurance Policy to the plaintiffs, even if there was some implicit request for an explanation (or to the Court when the tender of the documents had not then taken place);
- at no point did the defendant or its legal representatives tell the plaintiffs or the Court that the Receivers’ Insurance Policy would respond to the plaintiffs’ claim against Waratah 37;
- if Mr Feather did not in fact read any part of the Receivers’ Insurance Policy beyond the first page[39] until after December 2023 that was of his own choosing and could not have been anticipated by the defendant or its legal representatives;
- it was Mr Feather’s choice as to whether he obtained independent advice about the document – he gave some indication during his cross-examination on the first day of trial that he intended to obtain some advice about the document (see T1-39, L21-28). He did not obtain such advice and the only step he took was to try to have a conversation with Mr Killer (one of the receiver and managers of Waratah 37).[40] He accepted he was capable of obtaining independent legal advice. The defendant and its legal representatives were not to know what advice the plaintiffs did or did not obtain;[41]
- there is no basis upon which the defendant or its legal representative ought to have known that Mr Feather had no experience with insurance policies with retroactive dates;
- the defendant and its legal representatives were under no obligation to bring the retroactive date in the Receivers’ Insurance Policy to attention of Mr Feather during his cross-examination;
- the defendant’s senior counsel during the cross-examination of Mr Feather relating to the Receivers’ Insurance Policy specifically noted, “I’m not suggesting it will respond to your claims in relation to the section 85 sale – or complaint in 2007. I’m suggesting that the Registrar taking steps to see whether – or insist on a policy of professional indemnity insurance being in place would have been met with a response that, in fact, there was one”.[42]
- [47]I do not accept that the behaviour of the defendant or its legal representatives reveals any intention to conceal the true impact of the Receivers’ Insurance Policy from the plaintiffs, or to trick Mr Feather into believing that the Receivers’ Insurance Policy was a complete answer to the plaintiffs’ case. No misconduct, let alone fraud, is made out on the evidence.
- [48]This ground is not made out.
Court’s inherent jurisdiction to set aside consent orders
- [49]The plaintiffs, citing Harvey v Phillips (1956) 95 CLR 235 at 243-244, argue that the Court has an inherent jurisdiction to set aside consent orders on 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.[43]
- [50]
- [51]The plaintiffs were aware of the implications of the consent order to which they agreed. The only misapprehension pertained to the robustness of the plaintiffs’ case after obtaining the Receivers’ Insurance Policy. This does not constitute a mistake sufficient to set aside the consent order.
- [52]A contracting party cannot rely on his or her own mistake as to the terms of a contract to say that the contract was void ab initio, even if the fact in question was fundamental and the other party knew of the mistake.[46] As suggested by the maxim caveat emptor, the general principle is that one contracting party cannot rely on the other to look after his or her interests.[47]
- [53]The objective theory of consent has been repeated many times and it is difficult to rebut the presumption that it raises. Only if something can be shown in the non-mistaken party’s conduct that is a recognised category of wrongdoing can the presumption be rebutted. Under the heading relating to the allegations of fraud I have set out why I consider there was no misconduct or wrongdoing by the defendant or its legal representatives. There is no compelling evidence upon which it can be concluded that the defendant or the defendant’s legal representatives were aware of any mistake on the part of the plaintiffs or induced that mistake.
- [54]For completeness, I record that I do not accept the plaintiffs’ argument that the Receivers’ Insurance Policy in fact had no relevance to the case and so making any reference to same must be taken to be part of some devious conduct on the part of the defendant or its legal representatives. That is because:
- senior counsel for the defendant said the document was important to the defendant’s case and cross-examined Mr Feather about it. Whilst the trial ended before the precise relevance of the document was disclosed in submissions, I am not prepared to infer that it was used for some improper purpose;
- the document was relevant to what would have occurred in a counterfactual situation if the defendant has sought to confirm the existence of an insurance policy with the receivers (that formed part of the cross-examination of Mr Feather on the document);
- from my own analysis of the pleadings in the proceeding I do not think that the only insurance policy that could have been relevant to the proceeding is one that responded to the plaintiffs’ claims against Waratah 37. Certainly such a policy would have been relevant – for example, see 11ASOC at [39(gi)] where the allegation relates to Waratah 37 being left without a policy that would respond to the plaintiffs’ claims against Waratah 37. But not all such allegations about insurance are pleaded so narrowly – for example, see 11ASOC at [47]. The Receivers’ Insurance Policy may also have been relevant at least to [45], [48A(c)(ii)(D)(2)] and [49(b)] of the defence.[48]
Other matters
- [55]I note for the sake of completeness that the plaintiffs’ amended application in its terms refers to other “grounds” as the source of the power of the Court to make orders setting aside the consent order, including rr. 5 (philosophy – overriding obligations of parties and court), 211 (duty of disclosure), 371 (effect of failure to comply with rules), 225 (consequences of non-disclosure), and 658 (general) UCPR. None of those rules provides a proper basis to set aside the consent order.
- [56]The amended application further seeks relief that:
- the fifth amended defence of the defendant be struck out;
- judgment be entered for the plaintiffs;
- the costs of the plaintiffs to date be paid by the defendant;
- the costs of the plaintiff to date be paid by the defendant’s legal representatives;
- an enquiry be held into the conduct of the legal representatives at the trial of the claim,
with various sources of power for the Court to make such orders purportedly identified.
- [57]In the circumstances where I have refused to set aside the consent order, those parts of the application must also fail.
Outcome
- [58]The amended application filed 21 March 2024 is dismissed. I will hear from the parties in respect of the costs of the application.
Footnotes
[1] Order of Hindman J, CFI 118.
[2] A larger bundle of documents, including these documents, had been emailed to the plaintiffs on the Friday prior.
[3] Around 21 January 2014.
[4] Around 9 December 2014.
[5] Eleventh Amended Statement of Claim filed 14 November 2023, CFI 106, (11ASOC) at [38]-[39].
[6] Proposed to be given numbers 202(a), 204(a) to (c) and 208(a).
[7] Affidavit of Feather, CFI 120, [7(ii)].
[8] Affidavit of Sharry sworn 10 April 2024 (Sharry affidavit), CFI 129, ex SWS-22 (pp. 159-188).
[9] Sharry affidavit, ex SWS-22 (see p. 160 and p. 176).
[10] Sharry affidavit, [61].
[11] Sharry affidavit, ex SWS-28 (p. 202).
[12] T2-2, L16 to T2-3, L21: Sharry affidavit, ex SWS-2 (pp. 45-46).
[13] T2-25, LL20-45: Sharry affidavit, ex SWS-2 (p. 68).
[14] T2-26, L12 to T2-27, L43: Sharry affidavit, ex SWS-2 (p. 68).
[15] T2-28, LL12-22: Sharry affidavit, ex SWS-2 (p. 71).
[16] T2-30, LL15-17.
[17] Mr Feather gives evidence of this meeting at [23(xii)] of his affidavit, CFI 120. Note that objections to the fourth and fifth paragraphs on page 23 were upheld and so do not form part of the evidence.
[18] Sharry affidavit, [86].
[19] CFI 119.
[20] Plaintiffs’ outline of submissions, CFI 125, p. 8.
[21] Plaintiffs’ oral submissions on the application, 19 April 2024, T1-23, LL44-49, T1-24, LL40-47.
[22] Plaintiffs’ outline of submissions, CFI 125, p. 9.
[23] IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428 at [103]-[105] (Wilson J).
[24] Affidavit of Feather, CFI 120, [21].
[25] Affidavit of Feather, CFI 126, [25].
[26] Plaintiffs’ outline of submissions, CFI 125, pp. 5-6.
[27] AKS Investments Pty Ltd v Gazal [2015] QSC 247, [35] (Daubney J).
[28] Rodgers v ANZ Banking Group [2005] QSC 365 at [26]; Briginshaw v Briginshaw (1938) 60 CLR 336.
[29] (1986) 6 NSWLR 534.
[30] Rodgers v ANZ Banking Group [2005] QSC 365 at [26].
[31] [2001] QCA 453.
[32] Assets Co Ltd v Mere Roihi [1905] AC 176 at 210.
[33] See also Butler v Fairclough (1917) 23 CLR 78 at 90, 97; Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188 at 192-195.
[34] The Ampthill Peerage [1977] AC 547 at 571 (Lord Wilberforce), 591 (Lord Simon of Glaisdale), cited in Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165 at [57].
[35] Rodgers v ANZ Banking Group [2005] QSC 365 at [13].
[36] Briginshaw v Briginshaw (1938) 60 CLR 336.
[37] See particularly affidavit of Feather, CFI 120, [7]-[11]. Note that several parts of that section of the affidavit were ruled inadmissible and are not in evidence. I agreed to take certain inadmissible parts into account as submissions made on behalf of the plaintiffs.
[38] Note that Mr Feather agreed in cross-examination on the application that he did take the document out of the plastic sleeve (19 April 2024), T1-12, LL8-9.
[39] He asserted as much in cross-examination on the application (19 April 2024), T1-12, LL11-15.
[40] See cross-examination on the application (19 April 2024), T1-13, LL32-43.
[41] See cross-examination on the application (19 April 2024), T1-14, LL3-12.
[42] T1-39, LL21-25.
[43] Plaintiffs’ outline of submissions, CFI 125, p. 10.
[44] Plaintiffs’ outline of submissions, CFI 125, p. 10.
[45] Plaintiffs’ oral submissions on application, 19 April 2024, T1-25, LL8-17.
[46] See Taylor v Johnson (1983) 151 CLR 422 at 420.
[47] See Smith v Hughes (1871) LR 6 QB 597.
[48] Fifth further amended defence, CFI 95.