Re Longo, C. v Ex parte Longo, C. [1995] FCA 417

[1995] FCA 417

Federal Court of Australia|1995-06-23|Before: Cooper J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

1995-06-23

Before

Cooper J

Catchwords

Ex parte Wedd (Applicant)
Ex parte Cosimo Longo No. QN104 of 1995 Cooper J., Brisbane, 23 June 1995

Source

Original judgment source is linked above.

Catchwords

Ex parte Wedd (Applicant)Ex parte Cosimo Longo No. QN104 of 1995 Cooper J., Brisbane, 23 June 1995

Judgment (21 paragraphs)

[1]

The applicant deposes that during the negotiation of the compromise he felt he was under a great deal of pressure by his own legal advisers to settle the matter by agreeing to pay the sum of $40,000.00. He says that he was told by his counsel that if he lost before the Tribunal it would seriously prejudice his claim in the District Court and it was only on that basis that he agreed to the compromise. The circumstances he deposes to do not come within the exception to the general rule noted by Fullagar J. in Corney v. Brien. The judgment obtained in Ex parte Banner; In re Blythe was one obtained dishonestly in what amounted to blackmail and as the observations of the Lord Justices show, the circumstances of that case stand in stark contrast to the ones in the instant case. Before a court will look behind a judgment based on a compromise there must be shown in the circumstances of the compromise "such suspicion of unfairness or impropriety as to justify [the] Court in looking behind the judgment to inquire into the consideration for the debt or the propriety of the compromise" (per Astbury J. with whom Clauson J. concurred in In re A Debtor [1929] 1 Ch. 125 at 127). The issues of fraud and sham were issues in the proceedings before the Tribunal and they were compromised in the settlement on the advice of counsel. It is reasonably apparent how the matter was compromised. The claim of the judgment creditor was for $48,508.00 calculated as :- Contract price $39,500.00 Less paid on account $20,000.00 $19,500.00 Supply of ceramic tiles $12,026.40 Supervision $16,981.95 $48,508.35

[11]

This sum, he deposes, Mr. Cavaliere had promised to pay or reimburse to the applicant upon completion of the house at 66 Kuranda Drive, Robina. He alleges that the judgment creditor failed to pay him as promised or at all. As deposed to in his affidavit, the counterclaim, set off or cross demand of the applicant is a simple money count enforceable by plaint proceedings in the District Court between the applicant and Mr. Cavaliere. The claim as deposed to is totally inconsistent with proceedings instituted by the applicant and his wife as plaintiffs in the Supreme Court of Queensland by writ number 528 of 1994 against Mr. Cavaliere, his wife and their daughter, which action has been remitted to the District Court In a statement of claim delivered 25 May 1994 in those proceedings it is alleged :- "1. In or about March 1993 the Plaintiffs on the one part entered into a partnership agreement with the Defendants on the other part. PARTICULARS (a) The partnership agreement was oral; (b) The Plaintiffs on the one part and the Defendants on the other part were to share equally in the profits of the partnership. 2. Between in or about March 1993 and February 1994 the Plaintiffs made monetary contributions to the partnership particulars of which will be provided after discovery and inspection. 3. Between in or about March 1993 and February 1994 the First Defendant, in breach of the partnership agreement, sold partnership property and applied the proceeds thereof to his own use further particulars of which will be provided after discovery. 4. Further or in the alternative on or about 29th July 1993 the Plaintiffs lent the sum of $25,100.00 to the First Defendant (the loan agreement). 5. It was an implied term of the loan agreement that the sum of $25,100.00 was repayable on demand. 6. Despite demand the First Defendant had refused or neglected to pay the sum of $25,100.00 to the Plaintiffs. 7. There is now due and owing from the First Defendant to the Plaintiffs in [sic] the sum of $25,100.00. 8. On or about 2nd March 1994 the partnership was dissolved by mutual agreement. 9. An accounting of what is due and owing to the parties pursuant to the partnership has not been undertaken. 10. The Plaintiffs do not require a jury. AND THE PLAINTIFFS CLAIM:- (i) against the Defendants an injunction restraining them from selling, converting, encumbering or otherwise dealing with certain ceramic tiles constituting partnership property until trial or earlier order; (ii) further or alternatively money owing from the First Defendant in the sum of $25,100.00;

[19]

The only consideration of the jurisdiction of the Tribunal which I have been able to find is the judgment of Demack J. of the Supreme Court of Queensland in Woorabinda Aboriginal Council v. Ealesrose Pty. Ltd. (ACN 010 378300) Trading as NK Builders (Unreported, 22 November, 1993, No. 109 of 1993). His Honour said (at 6-7 of his reasons) :- "The principal argument advanced by Mr Britton is that here the plaintiff has sought a number of declarations and that declaratory orders are ones that are not specifically said to be within the power of the Tribunal. Section 95(1) of the Act says, `The Tribunal may on application by a party to a domestic building dispute make such orders and directions as may be just to resolve the dispute and any other matters at issue between the parties.' That section gives the widest of powers to the Tribunal. Subsection 4 of s 95 enumerates some of the powers that the Tribunal has. Mr Britton submitted that that list is exhaustive. I am not satisfied that that is so. It seems to me it could be read as illustrative of the powers given by s 95(1) just as easily as it can be said to be exhaustive. There does not seem to me to be any reason to assume that legislature in subs 4 has cut down the wide powers given in subs 1. In any case, the declarations that are sought are ones that are simply part of the process of reasoning that would allow this Court to reach the point where damages were assessed. Ultimately, the only issue between the parties is money. To determine who is the one who owes the other money, a large number of issues must be determined, all of which relate to the construction of this group of houses. It seems to me that the Tribunal is well placed to decide all of those issues and at the end of the day it will decide whether some rectification of defective work is to be done and if so whether this to be at the defendant's cost or by the defendant's hand. However, at the end of the day there will certainly be a sum of money to be paid by one side to the other. That seems to me to be an action that may properly be brought in the Tribunal and that pursuant to s 97(1) this action should be transferred to the Tribunal."

[21]

I come to that view with the aid of the decision of Demack J., the statutory object in s.3(c) of the Building Services Act and having regard to the requirement in s.97(1) that a court must transfer to the Tribunal on the application of a party an action arising wholly or partly from a domestic building dispute. It was not, in my view, the intention of Parliament to fragment proceedings by having part only of the dispute transferred to the Tribunal. Rather the jurisdiction and powers are framed in broad and flexible terms to give the Tribunal the scope to resolve finally matters of this nature. In my opinion a counterclaim, set off or cross demand which a party to a domestic building dispute wishes to set up as either a defence or a claim giving rise to an amount to be offset in satisfaction of the price is a claim within the phrase "and any other matters at issue between the parties" and within the jurisdiction of the Tribunal. It was therefore open as a matter of law to the applicant to raise the claim for debt in the proceedings before the Tribunal. The applicant therefore fails to show that he had a claim "that he could not set up in the action or proceeding in which the judgment or order was obtained" (Re: Brink Ex parte Commercial Bank Co. of Sydney Ltd. (1980) 44 FLR 135 at 139). If I am wrong and the applicant's claim for money due on account of the alleged loans to the judgment creditor did not fall within s.95(1) of the Building Services Act, then it was open to the applicant to apply to have the proceedings transferred to the District Court to enable him to bring his counterclaim. His failure to do so prevents him from contending that he could not bring the cross claim (see Re: Rochela Ex parte Antonios (1980) 49 FLR 423; Re Franks Ex parte GIO Holdings Ltd. (1990) 24 FCR 398). The applicant, if he had a claim for $58,898.45, elected not to pursue it in the Tribunal or, if necessary, to transfer the proceedings to the District Court to pursue it. If in fact the applicant has no separate claim for debt but is a joint and several claimant with his wife against Mr. Cavaliere, his wife and their daughter in respect of the causes of action pleaded in the existing District Court proceedings, then the proceedings do not constitute a counterclaim, set off or cross demand within the meaning of s.40(1)(g) of the Act (Re Wedd; Ex parte Wedd (Applicant); Parker (Respondent) (1961) 19 ABC 36 at 38). Conclusion The applicant has failed to make out any ground for the relief claimed in the application filed 2 March 1995. The application must be dismissed with costs. THE COURT ORDERS THAT: 1. The application filed 2 March 1995 is dismissed. 2. The applicant pay the respondent's costs of and incidental to the application, including reserved costs if any, to be taxed if not agreed. I certify that this and the preceding twenty-three (23) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper. Date: 23 June 1995 Associate Counsel for the Applicant: Mr. D. Hawes Solicitors for the Applicant: Piper & Associates Counsel for the Respondent: Mr. K.J. McGhee Solicitors for the Respondent: Price & Roobottom Date of Hearing: 27 March 1995 Place of Hearing: Brisbane Date of Judgment: 23 June 1995

Legislation Cited (2)

Bankruptcy Act 1966(Cth)

Queensland Building Services Authority Act 1991(Qld)

Cases Cited (12)

CATCHWORDS BANKRUPTCY - Application to set aside bankruptcy notice - whether court should go behind a judgment entered by compromise in the Queensland Building Tribunal and registered in the District Court of Queensland - must be substantial reasons for questioning whether there is in truth and reality a debt owing - substance of complaint that judgment creditor would have received lesser amount if claim had not been compromised - no unilateral mistake by judgment debtor. BANKRUPTCY - Whether judgment debtor had counterclaim, set off or cross demand within s.40(1)(g) Bankruptcy Act 1966 (Cth) - claim deposed to inconsistent with statement of claim filed by judgment debtor in proceedings in Supreme Court of Queensland - claim could have been set up in Queensland Building Tribunal or by transfer to District Court of Queensland - no separate claim for a debt but a joint and several claim against judgment creditor in a partnership capacity. Bankruptcy Act 1966 (Cth) ss.40(1)(g), 41(7) Queensland Building Services Authority Act 1991 (Qld) ss.4, 91, 95(1), 95(4), 97(2) Wren v. Mahony (1972) 126 CLR 212 - Appl. Corney v. Brien (1951) 84 CLR 343 - Appl. Oliveri v. Stafford (1989) 24 FCR 413 - Appl. Re: Brink Ex parte Commercial Bank Co. of Sydney Ltd. (1980) 44 FLR 135 - Appl. Re Wedd; Ex parte Wedd (Applicant); Parker (Respondent) (1961) 19 ABC 36 - Appl. Woorabinda Aboriginal Council v. Ealesrose Pty. Ltd. (ACN 010 378300) Trading as NK Builders (Unreported, 22 November, 1993, No. 109 of 1993) - Appl. Ex parte Banner; In re Blythe (1881) 17 Ch.D. 480 - Dist. Re Frazer Ex parte Central Bank of London [1892] 2 QB 633 Simon v. O'Gormon Pty. Ltd. (1979) 27 ALR 619 Re David Ex parte Lahood (1979) 26 ALR 306 Petrie v. Redmond (1942) 13 ABC 44 Re Vojnovski [1970] ALR 355 In re A Debtor [1929] 1 Ch. 125 Wilkinson v. Osborne (1915) 21 CLR 89 Re Riviere; Ex parte Original Mont de Piete Ltd (1919) 20 SR (NSW) 77 Deputy Commissioner of Taxation v. Chamberlain (1990) 26 FCR 221 Re: Rochela Ex parte Antonios (1980) 49 FLR 423 Re Franks Ex parte GIO Holdings Ltd. (1990) 24 FCR 398 Re Cosimo Longo; Ex parte Cosimo Longo No. QN104 of 1995 Cooper J., Brisbane, 23 June 1995

(1972) 126 CLR 212

(1951) 84 CLR 343

(1989) 24 FCR 413

(1980) 44 FLR 135

(1979) 27 ALR 619

(1979) 26 ALR 306

(1915) 21 CLR 89

(1990) 26 FCR 221

(1980) 49 FLR 423

(1990) 24 FCR 398

(1980) 44 FLR 135

Cited By (1)

Stone & Wood Group Pty Ltd v Intellectual Property Development Corporation Pty Ltd