ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF
RECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES
– RES
JUDICATA – GENERAL MATTERS – where a Judge made a guillotine order
Source
Original judgment source is linked above.
Catchwords
ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OFRECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES– RESJUDICATA – GENERAL MATTERS – where a Judge made a guillotine orderthat “there shall be judgment forthe plaintiff ... on thecounterclaim” unless the first and second defendants complied with certainorders by a certain time– where the first and second defendants defaulted– where no judgment was filed or entered – whether the guillotineorder required a determination on the merits – whether the guillotineorder gave rise to a res judicataESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OFRECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES– RESJUDICATA – WHETHER CAUSE OF ACTION THE SAME – where a Judge gavejudgment on the counterclaim on the basisthat it would otherwise constitute anabuse of process – where the Judge stated obiter dicta that thejudgment said to result from the guillotine order gave rise to a res
judicata – where the Court of Appeal upheld the abuse of process
argument and expressed support in obiter dicta for the res judicata
argument – whether the res judicata argument was an essential
step in the reasoning of the Judge or the Court of Appeal
ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF
RECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES
– ISSUE
ESTOPPEL – RESPECTING WHAT MATTERS DECISION CONCLUSIVE – MATTERS
NECESSARY TO THE DECISION – where
it is assumed that the guillotine order
gives rise to a final judgment – whether that necessarily decided the fact
Mango Boulevard P/L v Spencer & Ors [2007] QSC 276,
considered
Mango Boulevard P/L v Spencer & Ors [2008] QSC 117,
considered
Mango Boulevard P/L v Spencer & Ors [2008] QCA 274,
considered
New Brunswick Railway Co v British & French Trust Corporation
Ltd [1939] AC 1, cited
Phillips v Birch [1842] EngR 642
(1842) 4 Man & G 403
134 ER 165, cited
Preston Banking Co. v William Allsup & Sons [1895] 1 Ch 141,
cited
Re South American and Mexican Co [1895] 1 Ch 37, cited
Rogers v Legal Services Commission of South Australia (1995) 64 SASR
572, cited
Shepherd v Robinson (1919) 1 KB 474, cited
Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9
(1940)
63 CLR 382, cited
Woods v Sheriff of Queensland (1895) 6 QLJ 163, cited
Judgment (216 paragraphs)
[1]
ESTOPPEL - FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD - FORMER ADJUDICATION - JUDGMENT INTER PARTES - RES JUDICATA - GENERAL MATTERS - where a Judge made a guillotine order that "there shall be judgment for the plaintiff ... on the counterclaim" unless the first and second defendants complied with certain orders by a certain time - where the first and second defendants defaulted - where no judgment was filed or entered - whether the guillotine order required a determination on the merits - whether the guillotine order gave rise to a res judicata
[2]
ESTOPPEL - FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD - FORMER ADJUDICATION - JUDGMENT INTER PARTES - RES JUDICATA - WHETHER CAUSE OF ACTION THE SAME - where a Judge gave judgment on the counterclaim on the basis that it would otherwise constitute an abuse of process - where the Judge stated obiter dicta that the judgment said to result from the guillotine order gave rise to a res judicata - where the Court of Appeal upheld the abuse of process argument and expressed support in obiter dicta for the res judicata argument - whether the res judicata argument was an essential step in the reasoning of the Judge or the Court of Appeal
[3]
ESTOPPEL - FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD - FORMER ADJUDICATION - JUDGMENT INTER PARTES - ISSUE ESTOPPEL - RESPECTING WHAT MATTERS DECISION CONCLUSIVE - MATTERS NECESSARY TO THE DECISION - where it is assumed that the guillotine order gives rise to a final judgment - whether that necessarily decided the fact now in issue
[4]
PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - JURISDICTION AND GENERALLY - GENERALLY - where the Court of Appeal has held that the case sought to be advanced would have been an abuse of process - where the documents the subject of the guillotine order are now not relevant to the present case due to concessions made by the first and second defendants - whether there is any prejudice to the fair trial of the proceeding if the defendants are allowed to advance their case
[5]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - OTHER MATTERS - where the deed provides that the "Non-Defaulting Party" may acquire "the Defaulting Party's Shares" - where the "Defaulting Party" is defined as "a party which is in default of that party's obligations ... or a party who has committed an Event of Default" - where a "Non-Defaulting Party" means "the parties other than the Defaulting Party" - where each party has purported to issue a notice of default to the other - whether a "Non-Defaulting Party" could itself be in default under the deed
Woods v Sheriff of Queensland (1895) 6 QLJ 163, cited
[39]
F M Douglas QC, with D D Keane, for the first, second and fourth defendants
[40]
Delta Law for the first, second and fourth defendants
[41]
[1] There is an application by each side of these proceedings for summary judgment. To discuss the arguments it is first necessary to set out the complicated history of the litigation.
[42]
[2] The plaintiff ("Mango Boulevard"), the first defendant, ("Spencer") and the second defendant ("Perovich") were parties to a joint venture. It was to be conducted through the company which is the third defendant ("Kinsella Heights"). Mango Boulevard came to own 50 per cent of its shares, and Spencer and Perovich each held 25 per cent. Each of these parties executed the document called the Shareholders Deed. It is the operation of that Deed which gave rise to this litigation.
[43]
[3] By cl 9.1 of the Deed the shareholders agreed not to transfer any of their shares or any interest in them except according to that clause, which required that any shareholder wishing to transfer its shares to offer them first to the others. Clause 10 provided for the compulsory sale of the shares of a party which was in default under the Deed, as follows:
[44]
"10.2 If a party is in default of its obligations under this Deed as described in sub-clause 10.1 ('Defaulting Party') then another party may give:
[45]
(a) a notice in writing setting out the default ('Default Notice') to the Defaulting Party; and
[46]
(b) a copy of the Default Notice to the Company's accountants together with an instruction to determine within 30 days of the [sic] their receipt of a copy of the Default Notice, at the cost of the Defaulting Party:
[47]
(i) the value of the Shares held by the Defaulting Party at the end of the last preceding Financial Year under the principles set out in clause 11; and
[48]
(ii) the damages sustained by the other shareholders ('Non-Defaulting Parties') resulting from the default by the Defaulting Party ('Damages').
[49]
10.3 On serving a Default Notice on the Defaulting Party, the Non-Defaulting Party has, in addition and without prejudice to the Non-Defaulting Party's other rights at law or in equity, an option ('Option') to acquire the Defaulting Party's Shares at a price per Share determined by the Company's accountants under paragraph 10.2(b)(i).
[50]
10.4 The Non-Defaulting Party ('Acquiring Party') may, within 60 days of receiving the determination of the Company's accountants under paragraph 10.2(b)(i), by notice in writing to the Defaulting Party exercise the Option.
[51]
10.5 Completion of the sale of the Defaulting Party's Shares must take place within 14 days of the date that notice under sub-clause 10.4 exercising the Option is given to the Defaulting Party at a time and place to be agreed by the Acquiring Party and the Defaulting Party or, failing agreement, at 10.00am on the next Business Day after the 14 day period at the Company's registered office."
[52]
Clause 10.1 provided that a shareholder would be in default under this Deed if:
[53]
"(d) it commits an act of bankruptcy, becomes bankrupt or unable to pay its debts or suspends payment of its debts within the meaning of the Bankruptcy Act 1966;
[54]
(e) any change occurs in its shareholders or its directors; ..."
[55]
[4] On 22 February 2006, Mango Boulevard gave a notice of default to Spencer and Perovich. In each case the alleged default was that the recipient was unable to pay his or her debts.
[56]
[5] On 28 March 2006, each of Spencer and Perovich gave a notice of default to Mango Boulevard. The alleged defaults were under cl 10.1(e). It was said that Mango Boulevard changed its directors on 11 August 2003 and again on 30 June 2004. That second change involved the appointment of a Mr Thomson.
[57]
[6] Mango Boulevard commenced these proceedings by a claim and statement of claim filed on 9 March 2006. It pleaded the various shareholdings in Kinsella Heights, the terms of the Shareholders Deed upon which it relied, the alleged defaults of Spencer and Perovich and the delivery of its notices of default to them together with copies to the accountants of Kinsella Heights under cl 10.2(b). Paragraph 12 of the statement of claim pleaded, and still pleads, as follows:
[58]
(a) Mango Boulevard is entitled to an option to acquire Mr Spencer's shares in Kinsella Heights in accordance with clause 10 of the Shareholders Deed; and
[59]
(b) Mango Boulevard is entitled to an option to acquire Ms Perovich's shares in Kinsella Heights in accordance with clause 10 of the Shareholders Deed."
[60]
[7] The relief claimed was and remains declaratory relief as follows:
[61]
"1. A declaration that as at 22 February 2006 the first defendant [Spencer] was in default under the Shareholders Deed.
[62]
A declaration that as at 22 February 2006 the second defendant [Perovich] was in default under the Shareholders Deed.
[63]
A declaration that the plaintiff is entitled to an option to acquire the first defendant's Shares in accordance with clause 10 of the Shareholders Deed.
[64]
A declaration that the plaintiff is entitled to an option to acquire the second defendant's Shares in accordance with clause 10 of the Shareholders Deed."
[65]
[8] Spencer and Perovich filed a defence and counterclaim on 1 June 2006. Each denied that he or she was in default. That was the only substantive defence which was then pleaded. There was no plea within the defence that Mango Boulevard was disentitled to act under cl 10 because it was itself in default and was therefore not a "Non-Defaulting Party". Their counterclaim pleaded that neither was in default and that Mango Boulevard's notices had not set out sufficiently the default upon which it was relying. They also alleged that Mango Boulevard was in default, as they had asserted in their own default notices. They pleaded that Mango Boulevard had purported to exercise its options to purchase by notices dated 19 May 2006. But again, in the counterclaim Spencer and Perovich did not plead that the defaults by Mango Boulevard disentitled it to act under cl 10. Rather they went only to an allegation that Spencer and Perovich were then entitled to elect to acquire Mango Boulevard's shares.
[66]
[9] Their counterclaim also claimed that they had been wrongly denied permission by Mango Boulevard to mortgage their shares and that it was thereby in breach of a fiduciary duty owed under the Shareholders Deed. The relief for which they counterclaimed was for declarations declaring Mango Boulevard's notices as having no effect, for injunctions to prevent the transfer of their shares and an unquantified claim for "damages for breach of fiduciary duty".
[67]
[10] Mango Boulevard filed a reply and answer on 4 July 2006. It admitted receipt of the default notices given by Spencer and Perovich. Further, and importantly for present purposes, it admitted the alleged changes in its directors.[1] It denied that Spencer and Perovich were entitled to issue such notices or that the notices had effect. The pleaded reasons for that denial were as follows. Mango Boulevard alleged that by necessary implication the power under cl 10.2 was to be exercised "fairly and in good faith". It alleged that Spencer and Perovich had not acted in good faith, because it was in the interests of the joint venture that these changes to Mango Boulevard's directors occur and there had been an unreasonable delay between those changes and the defendants' reliance upon them. It pleaded that Spencer and Perovich had impliedly consented to the changes of 11 August 2003.[2] There was not an allegation in the same terms in relation to Mr Thomson's appointment. Mango Boulevard pleaded that his appointment was not a default because had he not been appointed, Mango Boulevard would have been in breach of its obligations to act in the interests of the joint venture.[3]
[68]
[11] There then followed what previous judgments have described as a serious and prolonged non-compliance by Spencer and Perovich with their obligations to make disclosure of documents. In particular, they failed to disclose documents relevant to their alleged insolvency. This led to an application by Mango Boulevard which, as filed, sought orders to strike out the defence and counterclaim and for judgment on the counterclaim, or alternatively for a self-executing order that the same results should follow unless there was proper disclosure relating to their respective financial positions.
[69]
[12] Between the filing and the determination of that application, Spencer and Perovich amended their pleading. There was no material change to the Defence. The counterclaim, however, was much expanded. The alleged breaches of fiduciary duties by Mango Boulevard were said to have resulted in loss to Spencer, in his capacity as trustee of the Spencer Family Trust, of the order of $100 million. Further, Spencer and Perovich pleaded that they had exercised their options to purchase the shares of Mango Boulevard in consequence of its defaults and there was a claim for an order that a transfer of those shares to them be registered.
[70]
[13] On 3 April 2007, the Chief Justice ordered the provision of a further list of documents by each of Spencer and Perovich and made a self-executing order in these terms:
[71]
(a) The first defendant has complied with the orders in paragraphs 1 and 2 above; and
[72]
(b) The second defendant has complied with the orders in paragraphs 4 and 5 above;
[73]
Then upon the solicitors for the plaintiff filing an affidavit deposing to the failure of the first and/or second defendants to do so:
[74]
(c) Paragraphs 8, 10 and 22 to 285 of the amended defence and counterclaim filed on 29 March 2007 shall be struck out; and
[75]
(d) There shall be judgment for the plaintiff against the first and second defendants on the counterclaim and an order that the first and second defendants pay the plaintiff's costs of and incidental to the counterclaim of the first and second defendants to be assessed on the standard basis."
[76]
[14] As appears from subsequent judgments, the defaults of Spencer and Perovich in making disclosure had related to the issue alleged of their insolvency. There was no complaint that they had failed to disclose documents (if any) which were directly relevant to the alleged defaults of Mango Boulevard, by its changing its directors.
[77]
[15] Spencer and Perovich failed to comply with those further orders for disclosure and on 30 April 2007 an affidavit deposing to such defaults was filed. However, no judgment was entered, or, as UCPR r 611 now provides, filed. There is a note on the file that a deputy registrar was of the view that "in particular order 7 [of the order of 30 April 2007] on the face of it, does not require a judgment to be signed by the Registrar". That view was incorrect. A final judgment had to be filed according to r 661(3).
[78]
[16] On 8 May 2007 Spencer and Perovich filed an application to vary the order of 3 April 2007 to delete that paragraph of the order which I have set out above or alternatively, to amend it so that it would affect only their pleadings in relation to insolvency. Their application was dismissed by a judgment of Margaret Wilson J,[4] against which there was no appeal. Her Honour found that the response of Spencer and Perovich "to the self-executing order had been casual and their attempts at compliance desultory".[5] Her Honour's view of the then state of the litigation was as follows:
[79]
"[30] In consequence of the first and second defendants'
[80]
non-compliance with the self-executing order, the issues on the plaintiff's claim are very narrow - the construction of the Shareholders Deed and the exercise of the discretion in relation to declaratory relief. If the self-executing order were set aside, the issue of their solvency would again be a live one on the claim. It would also be relevant to the counterclaim, in that the plaintiff alleges that the first and second defendants were themselves in default and so not entitled to issue a default notice against it. The first and second defendants' response to their disclosure obligations so far provides no basis for confidence that they would meet those obligations fully if the self-executing order were set aside or varied. The plaintiff would be prejudiced in the litigation by incomplete disclosure."
[81]
[17] By that stage Spencer and Perovich had each been made bankrupt. Subsequently Spencer retired as trustee of the Spencer Family Trust and was succeeded by Mio Art Pty Ltd ("Mio Art").
[82]
[18] Further applications were argued over two days in March 2008 before Chesterman J. Mango Boulevard then applied for and obtained leave to proceed against Spencer and Perovich (which was necessitated by their bankruptcies) and for the joinder of their trustees in bankruptcy who became the fifth and sixth defendants. Mio Art applied to be substituted for Spencer. Chesterman J ordered that it be joined as a defendant but not substituted for Spencer.
[83]
[19] At this same hearing, Mio Art was then given leave to read and file what was said to be an amended defence and counterclaim, but which was, of course, its original pleading. Mango Boulevard then applied for an order that various paragraphs of that pleading be struck out and that it have judgment against Mio Art upon its counterclaim pursuant to UCPR r 293.
[84]
[20] The Mio Art pleading largely corresponded with what had been Spencer's pleading which, for the most part, had been struck out by the order of 3 April 2007. However, Mio Art also pleaded in its Defence as follows:
[85]
"9. In relation to the directors of Mango Boulevard:
[86]
(a) On or about 30 July 2004 Russell John Thomson ("Thomson") was appointed a director of Mango Boulevard ("the Appointment").
[87]
(b) At no time from the date of the Appointment until 10 April 2006 were any formally constituted Board Meetings of KHD held.
[88]
(i) first learned of the Appointment on 24 March 2006;
[89]
(ii) issued a Notice of Default under clause 10 of the SHD on 28 March 2006; and
[90]
(d) In the premises pleaded in paragraphs (a) to (c) herein, from the date of the Appointment, Mango Boulevard was and remained in default under paragraph 10.1(e) of the SHD.
[91]
(b) on the proper construction of the SHD, clause 10 did not entitle Mango Boulevard to deliver notices of default to Perovich and RW Spencer, because it was itself in default within the meaning of clause 10 of the SHD as particularised in paragraph (9) above."
[92]
[21] Mio Art's counterclaim repeated the allegations in its Defence, and sought, amongst other relief, an injunction to restrain Mango Boulevard for "acting in reliance" upon its notice of default. Spencer and Perovich had pleaded a breach of the Shareholders Deed by a change in the directors of Mango Boulevard by the appointment of Thomson. But they had done so in their counterclaim, to the end of making a claim for the shares of Mango Boulevard. They had not pleaded this defence raised by Mio Art, which was that upon the proper construction of the Shareholders Deed, a party which was itself in default could not be the "Non-Defaulting Party" thereby entitled to an option to purchase under cl 10. It is that case, which I will call the Thomson case, which counsel for Spencer, Perovich and Mio Art now argue is a complete defence to this claim.
[93]
[22] Chesterman J ordered that Mio Art's defence and counterclaim (save for its first paragraph which contained admissions) be struck out and that there would be no leave to re-plead. At the same time, he gave judgment for Mango Boulevard upon Mio Art's counterclaim pursuant to r 293. He held that certain parts of Mio Art's pleading were on their face embarrassing and raised no arguable case. Those parts did not include the Thomson case. He further held that it was an abuse of process for Mio Art, as the successor of Spencer, to effectively re-plead what had been struck out of Spencer's pleading. Thirdly, his Honour discussed and ultimately accepted the argument for Mango Boulevard that Mio Art was precluded from advancing anything which had been struck out by the order of 3 April 2007 because, in consequence of that order and the non-compliance with it, any such case was res judicata. But he remarked that he had reached that conclusion with some hesitation and that he preferred not to base his judgment upon it. In relation to the Thomson case, he concluded as follows:
[94]
"[77] The appropriate relief in the circumstances is to order that the defence and counterclaim ... be struck out. There should be no leave to re-plead because the proceedings are an abuse of process. There is no point in exempting the defence from Thomson's [appointment] from the order. It is res judicata."[6]
[95]
[23] An appeal against that judgment was dismissed.[7] Mio Art argued that at least the Thomson case should have been left open and that Chesterman J had refused leave to re-plead that case upon the reasoning that it was res judicata. It further argued that there was no res judicata. Each argument was rejected. The Court of Appeal held that Chesterman J had considered that the entirety of that which had been struck out was an abuse of process, including the Thomson case, and that there was no error in that finding. This made it unnecessary for the court to consider whether there was a res judicata from the order of 3 April 2007. However, that question was considered, and the view of Chesterman J in this respect was also upheld.
[96]
[24] Perovich was not a party to that appeal. But there is no suggested basis for distinguishing her case, or that of her trustees in bankruptcy, from that of Mio Art.
[97]
[25] They are the circumstances in which these present applications are made. Mango Boulevard seeks summary judgment, pointing to the fact that there is effectively no pleading by any defendant which raises a defence. And the insolvency of each of Spencer and Perovich as at 22 February 2006 is now conceded. But the argument on behalf of Spencer, Perovich and Mio Art is that Mango Boulevard cannot succeed because of the Thomson case, notwithstanding the conclusions of the Court of Appeal.
[98]
[26] Their principal argument is that the Thomson case involves questions which must be pleaded and proved by Mango Boulevard. It is said that Mango Boulevard is entitled to acquire these shares only if it was not in default when it gave its notice, and that it must allege in its statement of claim either that it was not in default or that, for some reason, its default does not disentitle it to the defendants' shares. Because it has not pleaded or proved such a case, it should not be given judgment and, indeed, the defendants should be given judgment upon the plaintiff's claim.
[99]
[27] Alternatively, it is argued that the grant of declaratory relief is discretionary, and the court should decline to grant this relief to a party which is itself in default.
[100]
[28] Each of these arguments confronts the immediate obstacle of the unanimous opinion of the Court of Appeal and Chesterman J that the litigation of the Thomson case is precluded by a res judicata. If there is an issue estoppel, it would preclude the
[101]
re-litigation of the issue regardless of whether the burden of proof or the obligation to plead the issue lies on the plaintiff or the defendants.
[102]
[29] In the Court of Appeal, the principal judgment was given by Muir JA, with whom Mackenzie AJA and Douglas J agreed. Muir JA considered the question of:
[103]
"whether and to what extent the doctrine of res judicata operated to prevent [Mio Art] from litigating issues raised in the counterclaim the subject of the 3 April 2007 order".[8]
[104]
In his view, this was a default judgment and a default judgment may give rise to a res judicata.[9] He referred to Kok Hoong v Leong Cheong Kweng Mines Ltd,[10] Linprint Pty Ltd v Hexham Textiles Pty Ltd,[11] New Brunswick Railway Co v British & French Trust Corporation Ltd,[12] Hume v Munro,[13] Re South American and Mexican Co[14] and Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)[15] as well as the discussion of these cases and others in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed at paras [44]-[51].
[105]
[30] Muir JA said that the purpose of the order of 3 April 2007 was to determine the counterclaim once and for all, which is why the order did not stop at merely striking out the counterclaim. He characterised the judgment, "operating as it did to extinguish the counterclaim" as a final judgment. His Honour concluded as follows:
[106]
"[65] There is, however, one aspect of the 3 April order which gives rise to concern. It orders, in effect, that all allegations in the counter-claim be struck out as well as ordering that there be judgment for Mango on the counter-claim. If the result of the striking out is that the counter-claim upon which judgment was given is one which contains allegations of fact or causes of action, it is arguable that there is no basis for a res judicata, as all that has been decided is that the counter-claim be dismissed.[16] In my view, however, that approach would elevate form over substance.
[107]
[66] The counter-claim in respect of which judgment was given was, and was intended to be, that part of the defence and counter-claim containing paragraphs [22] to [285]; not merely a prayer for relief. The striking out order and the giving of judgment occurred simultaneously. The striking out of the allegations in the counter-claim was sought by Mango and ordered at its request. But if there was to be judgment on the counter-claim, as was always intended, there was no point in striking out any part of it. The inclusion in the 3 April order of the order striking out paragraphs of the defence and counter-claim in the circumstances outlined, should not be regarded as preventing a court from having recourse to the allegations in the counter-claim in order to ascertain the issues determined by the judgment. That is because those allegations were in the counter-claim at the time of judgment and the striking out order should be regarded as having no effect as a result of the judgment on the counter-claim.
[108]
[67] Another argument advanced on behalf of the appellant was that the dismissal of a claim or counter-claim could not give rise to a res judicata. In such a case, it was submitted, the claimant or counter-claimant would always be free to re-commence proceedings. No authority was advanced in support of the proposition and it is inconsistent with the way in which the doctrine has been formulated in many authorities."
[109]
[31] The opinion of Muir JA as to a res judicata was obiter dicta as his Honour made clear. In my view there was no res judicata for reasons which, it appears, the Court of Appeal was not asked to consider. In particular, the Court was not asked to consider the circumstance that what was said to have been a judgment on the counterclaim was not filed. That matter had been put to Chesterman J who dismissed it as irrelevant.[17] His Honour concluded that although no judgment had been filed, "the judgment in question was ... one entered in default of pleading, the counterclaim having been struck out". I respectfully differ. Further, the Court of Appeal apparently was not asked to consider whether the issue of the plaintiff's default was the subject of an issue estoppel: rather, the argument seemed to be that what was assumed to have been a judgment was not capable of giving rise to any estoppel.
[110]
[32] As noted already, the defendants failed to make the required disclosure and an affidavit as to their default was duly filed, but no judgment on the counterclaim was filed. Accordingly, there was nothing done here which was the equivalent of the entry of a judgment. Under the UCPR, the entry of a judgment is now according to r 661 which provides as follows:
[111]
(1) If a judge or judge's associate, magistrate, judicial registrar or registrar writes the date and terms of an order on a file or on a document on the file, then, unless or until the order is filed, the writing is sufficient proof of the making of the order, its date and terms.
[112]
(2) An order of a court is filed in the court if a document embodying the order and the date the order was made is drawn up, settled and signed by the registrar and filed in the court.
[113]
(a) the order is a judgment or another final order; or
[114]
(b) the order is returnable before the Court of Appeal; or
[115]
(a) the order may not be enforced under chapter 19 or by other process; and
[116]
(b) no appeal may be brought against the order without the leave of the court to which the appeal would be made.
[117]
(a) an order appropriate on default of an earlier order may be made without the earlier order being filed; and
[118]
(b) costs payable under an order may be assessed without the order being filed."
[119]
The judgment said to have resulted in this case was one which had to be filed according to r 661(3)(a).
[120]
[33] The entry of a judgment is not merely a matter of form. In particular, the step of the entry of a judgment affects the extent to which it is able to be varied. In Bailey v Marinoff,[18] Gibbs J said:
[121]
"It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it: In re Suffield and Watts; Ex parte Brown;[19]In re Swire; Mellor v Swire;[20]Preston Banking Co. v William Allsup & Sons;[21]Woods v Sheriff of Queensland;[22]Ivanhoe Gold Corporation Ltd v Symonds;[23]MacCarthy v Agard;[24]Arnett v Holloway.[25] The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court."
[122]
Similarly, in DJL v Central Authority,[26] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
[123]
"The common law courts, as superior courts of record, had 'full power to rehear or review a case until judgment [was] drawn up, passed, and entered'. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation.[27] Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court.[28] An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce."[29]
[124]
[34] Because a judgment can be altered in consequence of a reconsideration of the case before the judgment is entered, such a judgment before entry is not a final judgment so as to give rise to a res judicata. In Driver v Driver,[30] Napier CJ delivering the judgment of the Full Court of South Australia said:
[125]
"It follows that 'a judgment is no record till it is made up' (King v Birch;[31]Phillips v Birch[32]). Pronouncing judgment is not entering judgment; something has to be done which will be a record, although the judgment - when it is passed and entered - will take effect as from the time when it is pronounced (Holtby v Hodgson[33]). Whilst the judgment is thus inchoate and incomplete, it is still - speaking generally - open to reconsideration and review. (In re Suffield and Watts; Ex parte Brown;[34]Shepherd v Robinson[35]). It may be said that it is not yet res judicata - it has not yet passed from the control of the judge who pronounced it. (In re Thomas; Bartley v Thomas;[36]Geering v Geering[37]). But it is obvious that this power of reconsideration is not at large. It can only be exercised judicially and on sufficient grounds."
[126]
[35] As observed in the passage, a judgment, once entered, is an effective judgment from the date of its pronouncement: Holtby v Hodgson.[38] As Ormiston JA explained in Hartley Poynton Ltd v Ali,[39] there is no pronouncement of a default judgment, so that the effective date of such a judgment is its date of entry.
[127]
[36] Although the current rules do not use the term entry of a judgment, it cannot be thought that they were intended to displace these well established principles. Rather the intention appears to be to preserve their application, especially having regard to r 661(3)(a).
[128]
[37] Further, in this instance the absence of an entry of a judgment went to more than a lack of finality: it meant that there was no judgment. It appears to have been assumed that a judgment resulted from the order of 3 April 2007 and the occurrence of the subsequent events. But by what act of the court or any of its officers did that judgment arise? There was no pronouncement of that judgment: the order of 3 April 2007 did not itself give judgment. It provided that there would be a judgment in certain events. It was in prospective terms, rather than those of a present judgment with a stay of execution. Nor was it in terms of a judgment with a proviso that it was not to be entered unless those events (default and the affidavit proving default) occurred.
[129]
[38] The notion that a judgment could come into existence in that way, and without the exercise of any judicial act, is difficult to accept. And were that the case, in like circumstances there would often be an uncertainty as to the existence or otherwise of the judgment according to whether, for example, a purported compliance with the order for disclosure was an actual compliance. Rather, as Gaudron J said in FAI General Insurance Co Ltd v Southern Cross Exploration NL,[40] a conditional order of this kind "necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time". The requirement for an affidavit of the plaintiff's solicitor as to non-disclosure was so that the court, through the registrar, could determine that fact.
[130]
[39] Of course the procedural rules contain numerous examples of judgments which may arise other than from a pronouncement in court: for example UCPR rr 283-289. But in each case the rule provides for the exercise of the judicial function of the giving of a judgment by the court or a registrar. Undoubtedly, a judgment on the counterclaim could have been filed under r 661 pursuant to the order of 3 April 2007. But had that occurred, it would have been by that filing, and more specifically by the signing of the judgment by the registrar under r 661(2), that the judgment would have come into existence and effect.
[131]
[40] Commonly, self-executing orders are in terms which provide that unless the order is complied with, the innocent party has a right to enter a judgment. In my view the present order was one of that kind.
[132]
[41] Accordingly, at least because no judgment has been filed there is as yet no judgment, or at least no final judgment, upon that counterclaim. Therefore no res judicata arises from the order of 3 April 2007.
[133]
[42] Alternatively if, as assumed in the Court of Appeal, there is a final judgment from that order, in my respectful view there are further factors against a res judicata precluding the Thomson case. The judgment for which the order of 3 April 2007 provided would have had its basis in UCPR r 225(2), which provides that if a document is not disclosed, the court might give judgment against the party required to disclose it. The power under that rule to give judgment would include the power to order that in default of compliance with orders for disclosure, the innocent party might enter judgment. Although there were no reasons given for the order of 3 April 2007, it is clear that this was the source of the power of the order insofar as the judgment was concerned. The making of this order required no determination of the merits of the then counterclaim. In this way, the judgment, had it been entered, might have been distinguished from cases of judgments in default of a defence, where the essential elements of the plaintiff's case are regarded as established by the judgment because those elements are deemed to be admitted.[41]
[134]
[43] Further, if such a judgment on the counterclaim could be regarded as a determination of the merits, it would be necessary to identify a determination of the issue of the Thomson case. In Kok Hoong v Leong Cheong Kweng Mines Ltd,[42] Viscount Radcliffe said that although default judgments can give rise to estoppels, they
[135]
"must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided ..."
[136]
The question would be whether there was an issue estoppel. These defendants wish to defend on the basis of a default by the plaintiff in the appointment of Mr Thomson. No question of what in England is called cause of action estoppel now arises. The Thomson case was pleaded in the counterclaim which was the subject of the order of 3 April 2007. The question would be whether a judgment entered upon the counterclaim necessarily involved a determination that Mango Boulevard was itself not in default of the Shareholders Deed by the appointment of Mr Thomson. That was pleaded as a default entitling the defendants to acquire Mango Boulevard's shares. But another answer to that claim by Spencer and Perovich was that they were disentitled to the plaintiff's shares because they were themselves defaulting parties. Accordingly, a judgment for the plaintiff that Spencer and Perovich were not entitled to those shares would not necessarily have decided that the plaintiff was a non-defaulting party.
[137]
[44] However, Mango Boulevard has a further argument that there is a res judicata. It is that this results from the judgment of Chesterman J (which would not affect Ms Perovich's position). Chesterman J struck out Mio Art's pleadings but he also gave judgment for Mango Boulevard upon the counterclaim. Accordingly, it is argued, the Thomson case is precluded, at least so far as Mio Art is concerned, because the case has necessarily been determined within that judgment. Again, it is necessary to consider what question or questions were necessarily decided by that judgment.[43]
[138]
[45] Mango Boulevard applied for judgment on Mio Art's counterclaim pursuant to r 293. A judgment granted under that rule required the court to be satisfied that Mio Art had no real prospect of succeeding on its counterclaim and that there was no need for a trial. That would have required a consideration of the merits of the counterclaim. But the merit of a specific allegation would not have required consideration if that allegation were precluded by an issue estoppel. Chesterman J considered that there was a res judicata as a result of what he said was a judgment in consequence of the order of 3 April 2007. He said that the "defence from Thomson's (appointment) ... is res judicata".[44] However, Chesterman J also said that he preferred not to base his judgment on his conclusions as to res judicata because he was satisfied "that the plaintiff has made good its alternative submission that Mio Art's proceeding is an abuse of process".[45]
[139]
[46] In the Court of Appeal, the argument that Chesterman J had not found that the Thomson case involved an abuse of process was rejected. It was there held that the litigation of the Thomson case, in the context of that pleading, would be an abuse of process.[46] That is why Muir JA said that it was unnecessary to decide whether and to what extent the doctrine of res judicata operated to prevent Mio Art from litigating issues raised in the counterclaim the subject of the order of 3 April 2007.[47] Accordingly, as the Court of Appeal held, it was not essential to the judgment on Mio Art's counterclaim that the issue or issues raised by the Thomson case were res judicata. And nor was there any argument that on the merits of that case, Mio Art had no real prospect of success.
[140]
[47] Of course, once every paragraph of the pleading was struck out, Mio Art would have had no real prospect of success on its counterclaim. In that way it might have been considered that the requirements of r 293 were satisfied. However, Chesterman J's preference for the abuse of process ground for his orders indicates that they were based upon the power within UCPR r 225. Chesterman J described the ongoing default in making disclosure and said that Mio Art's position was no different from that of Spencer. A judgment pursuant to r 225(2) requires no determination of any issue raised by that party's pleaded case.
[141]
[48] The ascertainment of what was necessarily determined within this judgment of Chesterman J is undertaken by reference to his reasons for judgment. There is not the difficulty here as might arise, for example, for a judgment given in default of a defence. It can be seen that his opinion as to a res judicata was not an essential step in his reasoning. Had the Court of Appeal disagreed with Chesterman J's view as to res judicata, still it would have dismissed the appeal. It follows that there is no relevant res judicata from the judgment of Chesterman J.
[142]
[49] As the Court of Appeal upheld the finding that the Thomson case was then an abuse of process, what circumstances now exist which would make the litigation of this case permissible?
[143]
[50] The documents which ought to have been disclosed were not relevant to the question of whether Mango Boulevard had itself breached the Shareholders Deed. Why then were Spencer and Perovich (and later Mio Art) to be precluded from litigating the Thomson case? The answer appears in the judgment of Margaret Wilson J. Her Honour referred to the argument, then made for Spencer and Perovich, that she might vary the order of 3 April 2007 by confining the self-executing order to those paragraphs which denied the allegation of insolvency.[48] Discussing the prejudice to Mango Boulevard from the default in making disclosure, her Honour said:
[144]
"[30] In consequence of the first and second defendants' non-compliance with the self-executing order, the issues on the plaintiff's claim are very narrow - the construction of the Shareholders Deed and the exercise of the discretion in relation to declaratory relief. If the self-executing order were set aside, the issue of their solvency would again be a live one on the claim. It would also be relevant to the counterclaim, in that the plaintiff alleges that the first and second defendants were themselves in default and so not entitled to issue a default notice against it. The first and second defendants' response to their disclosure obligations so far provides no basis for confidence that they would meet those obligations fully if the self-executing order were set aside or varied. The plaintiff would be prejudiced in the litigation by incomplete disclosure."[49]
[145]
Her Honour was there anticipating that Mango Boulevard would meet the counterclaim for its shares by the same argument which the defendants now wish to make, which is that only a party itself not in default might elect to buy the others' shares. The insolvency of Spencer and Perovich, her Honour said, would be a defence to the Thomson case within the counterclaim.
[146]
[51] The Mio Art pleading did not counterclaim for Mango Boulevard's shares but only that the Spencer shares be transferred to Mio Art and not to Mango Boulevard. Nevertheless Chesterman J regarded the issue of insolvency as critical to the entire proceeding.[50] So again, the non-disclosure on the issue of solvency was relevant to that case, although not to the Thomson case if considered alone.
[147]
[52] The present circumstances are different. The insolvency of each of Spencer and Perovich is now conceded and there is no claim for Mango Boulevard's shares. In these circumstances, there is no identifiable prejudice to Mango Boulevard from the defendants being allowed to argue the Thomson case. There is no suggestion that any documents relevant to that case have been withheld. Nor is it suggested that the passage of three or four years since the relevant events would make the fair determination of that case problematical.
[148]
[53] I do not mean to express any different view from those who have previously considered that the defendants' conduct in these proceedings has been an abuse of process. The defaults of Spencer and Perovich in complying with their obligations of disclosure, coupled with the extraordinary content of some of their pleadings, warranted the strong criticism appearing in earlier judgments and such orders as were necessary to ensure that this dispute be determined fairly and with the expedition which litigants should be entitled to expect. Nevertheless, the present question is whether the defendants should be precluded from raising a specific case as a defence. They should not be precluded from doing so as some penalty for their previous misconduct. And because that misconduct would not affect the fair determination of this question, and there are no other circumstances which it is said would do so, there is no proper basis now for precluding the litigation of that question.
[149]
[54] In the present hearing, Mango Boulevard argued that the Thomson case was flawed because it involved a misinterpretation of the Shareholders Deed. It argued that a default notice could be given by another party although that party was itself in default. It points to the expression "another party" at the commencement of cl 10.2 and says that this is not limited to a party not then in default.
[150]
[55] The option to acquire shares is granted by cl 10.3 to "the Non-Defaulting Party" and the shares able to be acquired are "the Defaulting Party's Shares". Clause 10.4 provides that the option is to be exercised by "the Non-Defaulting Party". Mango Boulevard says that "the Non-Defaulting Parties", and the singular of that expression in cl 10.3 and cl 10.4, mean simply a party other than a shareholder in receipt of the Default Notice, referring to what it says is a definition of the term in cl 10.2(b)(ii).
[151]
[56] However cl 10 is affected by definitions within cl 1 of Deed. The term "Event of Default" is there defined to mean "the occurrence of one or more of the events listed in clause 11.1". It is common ground that this should be read as a reference to the events listed in cl 10.1. Clause 1 also contains the following definitions:
[152]
"'Defaulting Party' means a party which is in default of that party's obligations under this Deed or a party who has committed an Event of Default pursuant to clause 11.1 [again a reference to cl 10.1]
[153]
'Non-defaulting Party' means the parties other than a Defaulting Party at that time."
[154]
[57] On the argument for the defendants the term "Non-Defaulting Party" takes its meaning from its definition in cl 1. If so, then a shareholder cannot be at once both a "Defaulting Party" and a "Non-Defaulting Party". That argument has considerable force. Were it otherwise, the Shareholders Deed could have a curious operation. If each side was in default, nevertheless each could give a Default Notice and, in turn, a notice exercising the option to acquire the shares of the other. Clause 10 does not provide that once a party receives a Default Notice duly given, that party is disentitled to act under cl 10 for a default of the other. Once the shares of a party were transferred according to cl 10, the former shareholder, of course, could not act under the Deed to acquire the others' shares. But within the substantial period allowed for the process under cl 10, it is not unlikely that each side would have committed an Event of Default and would seek to exercise rights under cl 10 against the other, as the history of this matter demonstrates. It is unlikely that the parties intended that each would be able to acquire the other's shares in those circumstances. Nor is it likely that they intended that whichever was the first to give a Default Notice, or alternatively whichever was the first to exercise its option, would prevail. The more likely intention was that cl 10 could be used only by a party not itself in default. That intention gives effect to the definitions which the parties deliberately included within their deed.
[155]
[58] If the definitions in cl 1 were not to be applied to cl 10, there could be another curious consequence for its operation. Clause 10.2 is engaged where there is "a party ... in default of its obligations under this Deed as described in sub-clause 10.1 ...". Within cl 10.1(b) it is provided that a shareholder would be in default under the Deed if:
[156]
"(b) it fails to remedy any breach of its obligations under this Deed within 14 days after written demand for remedy has been made by another shareholder; [...]"
[157]
The other events or circumstances described within cl 10.1 are not in the nature of a breach of some obligation otherwise expressed in the Deed. Now if the term "Defaulting Party" within cl 10.2 does not take its meaning from the definition in cl 1, but instead takes its meaning from the commencing words in cl 10.2, then this process could be engaged only where there was a default by a failure to remedy a breach as provided in cl 10.1(b). That is unlikely to have been intended, and that consequence is avoided by applying the definitions in cl 1.
[158]
[59] Accordingly, I do not accept Mango Boulevard's argument that it is irrelevant to its claim that it may have then been in default. It is not insignificant that in the many judgments thus far, this argument has not been identified as providing a clear answer on the merits to the Thomson case or to other defaults alleged by these defendants. As I have discussed, the view of Margaret Wilson J was to the contrary.
[159]
[60] In these circumstances, should either side have summary judgment? It is convenient to discuss first the application against Mango Boulevard. It argues that Spencer and Perovich cannot seek summary judgment because they have "no rights in respect of the proceedings", any rights having passed to their respective trustees in bankruptcy. Yet they are applying for summary judgment as defendants pursuant to UCPR r 293 and they are defendants still because Mango Boulevard sought and obtained leave to proceed against them.[51] Therefore it cannot be said that they are incompetent to apply under r 293.
[160]
[61] The substantial answer to their application is that upon any view of the Thomson case, there is a need for a trial. I have mentioned the reply and answer pleaded by Mango Boulevard, which responded to the Thomson case, admitting the change in directorship but pleading that it was justified in the circumstances. That case requires a trial. At least for that reason the application for summary judgment by Spencer, Perovich and Mio Art must be dismissed.
[161]
[62] Mango Boulevard argues that it should have judgment because there is no case raised by the pleadings of any defendant. In particular the Thomson case no longer appears in any pleading. There are only express or deemed admissions of the plaintiff's case. But the fact that the Thomson case is not presently pleaded does not mean that it should not be considered within this summary judgment application, and I have held that the defendants should be allowed to argue it. It cannot be said that this case has no real prospects of success and such an argument was not advanced by Mango Boulevard to Chesterman J or to the Court of Appeal.
[162]
[63] Accordingly, Mango Boulevard should be refused summary judgment at least for the declarations claimed by paragraphs 3 and 4 of its claim.[52] Paragraphs 1 and 2 seek declarations that Spencer and Perovich were in default as at 22 February 2006. The defendants represented at this hearing now concede that each was insolvent as at that date. But as the proper interpretation of the Shareholders Deed, and in particular the various provisions of cl 10, is yet to be finally determined (and with the benefit of any evidence properly admitted for that purpose) it is preferable not to make declarations now in terms of those paragraphs. The plaintiff's interests can be met by a declaration that as at 22 February 2006, each of the first defendant and the second defendant was, in terms of cl 10.1(d) of the Shareholders Deed dated 4 July 2003, unable to pay his or her debts. The plaintiff's application for summary judgment should otherwise be dismissed.
[163]
[64] There is then the question of the further conduct of this case. The statement of claim ought to be amended to correspond with the plaintiff's present case, which is that it has exercised the options to purchase and it is entitled to a transfer of the shares for no consideration, that being the accountants' assessment of their value.
[164]
[65] The defendants involved in this hearing would wish to defend on the basis of the Thomson case but also other allegations that Mango Boulevard was in default and in particular an allegation that it defaulted by agreeing to transfer its shares or some interest in them. Thus far I have not referred to that defence because the Thomson case was sufficient to dispose of the plaintiff's application for summary judgment. On its face, this other defence is similar to the Thomson case, in that it does not involve any question of the insolvency of Spencer and Perovich. If it did, then Mango Boulevard would have the benefit of the declarations which will be made by this judgment. More generally, if these defendants were to plead any matter which, having regard to previous judgments, would still constitute an abuse of process, the court has ample means of protecting the plaintiff's position. There should be directions for the amendment of the Claim and Statement of Claim and for the filing and service of Defences.
[165]
[66] I am not persuaded by the defendants' argument that the Thomson case was something with which the plaintiff had to deal in its statement of claim. The defendants argued that the absence of a default by Mango Boulevard is an essential element of its causes of action. In particular, it was said that that is an element of the plaintiff's entitlement to sue. For Mango Boulevard it was argued that this was a condition precedent within UCPR r 153 and accordingly it was impliedly alleged in its Statement of Claim. Rule 153 does not alter the burden of proof; rather it avoids the necessity for a plaintiff to expressly allege the satisfaction or performance of all conditions precedent.[53] The point is arguable either way, but I prefer the plaintiff's argument.
[166]
[67] There remains the application by the defendants to vary the order of 3 April 2007. It follows from my reasons that some variation of that order is necessary. Otherwise Mango Boulevard could now seek to file its judgment according to the operation of that order as I have described it above at [40]. As I have discussed, until entry of a judgment, it may be varied or set aside. It is necessary to do so in this case to avoid the potential injustice that Mango Boulevard could obtain relief to which it may not be entitled on the merits and where the determination of those merits would not involve, in the circumstances now existing, any unfairness or abuse of process. The only benefit to Mango Boulevard from being able to enter judgment on that counterclaim could be that, consistently with the obiter dicta of Chesterman J and the Court of Appeal, it would result in an issue estoppel. If those dicta are correct, the result could be an unfair windfall for the plaintiff. Accordingly, the order of 3 April 2007 will be varied by deleting sub-paragraph (d) and the word "and" appearing at the end of sub-paragraph (c) of paragraph 7 of that order.
[167]
[68] I will hear the parties as to further directions and costs.
[168]
[1] It admitted that Mr Thomson was appointed on 30 July 2004 rather than 30 June 2004 as they had alleged but nothing comes from the difference.
[169]
[3] Paragraph 17 of the annexure to the reply and answer.