Aircraft Portfolio Management Ltd (Cayman Islands) v Global Air Operations Pty Ltd & Anor [2005] QSC 185

State Reporting Bureau [zoos] QSO& gny Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MUIR J REVISED COPIES ISSUED State Reporting Bureau Date: 17 June, 2005 No S8447 of 2003 AIRCRAFT PORTFOLIO MANAGEMENT LIMITED Plaintiff (CAYMAN ISLANDS) and GLOBAL AIR OPERATIONS PTY LTD First Defendant ACN 101 402 233 and GLOBAL AIR GROUP PTY LTD Second Defendant BRISBANE . .DATE 06/06/2005 JUDGMENT VARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal iffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for heir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those :ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 4 -- HIS HONOUR: The plaintiff sues, in broad terms, to recover moneys paid by the plaintiff to the first defendant pursuant to or in respect of a charter flight arrangement contract ("the agreement") entered into between the plaintiff and the first defendant. After the agreement was entered into, the plaintiff paid the contract sum of US$750,000. The flight was cancelled almost immediately. The plaintiff sought a refund of the moneys paid and that was refused. Initially the contention was that a refund would be made subject to deduction of expenses incurred prior to the notification of termination or to the effect that the contract would not be proceeding. At this time, however, it came to be asserted by the first defendant that there was no entitlement to any refund at all and/or that expenses exceeded the charter fee . In any event, that narrative is by way of background. The material clearly establishes a misrepresentation by the terms of the contract as to the airworthiness of the aircraft to be supplied and that, when made, the representation was, to the knowledge of the representor, untrue. The material also establishes reliance by the applicant/plaintiff on the representation in entering into the agreement . 06062005 D.l Tl/DBK (Muir J) 2 JUDGMENT -- 2 of 4 -- 1 The right to damages under section 82 of the Trade Practices Act 1974, therefore, arises. In this case the damages are readily quantifiable as the sum paid in reliance on the representation. The plaintiff also seeks interest and there is no reason why it should not obtain interest on the judgment sum at the current rate of 9 per cent . Another company related to the first defendant, Global Air Group Pty Ltd, was joined as second defendant. The plaintiff claims against it on its own behalf and on behalf of all creditors of the first defendant for an order that the transfer of the aircraft from the first to the second defendant is void as against the plaintiff and all other creditors of the first defendant pursuant to section 228 of the Property Law Act 1974, and costs and other consequential orders. The material there, in very brief terms, establishes the demand by the plaintiff for repayment of the charter fee, assurances that repayment would be made, a clear entitlement on the part of the plaintiff to repayment, but nevertheless a transfer effected shortly after requests for repayment from the first defendant to the second defendant . The transfer was executed by a director of both companies on behalf of both of them and the charter moneys were dissipated 06062005 D.l Tl/DBK (Muir J) 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 4 -- not for the benefit of the first defendant within days of receipt . Accordingly, the plaintiff is entitled to the relief which it seeks against the second defendant also. There will be judgment in terms of minutes of judgment or order which counsel for the plaintiff has kindly agreed to prepare in accordance with intimations made by me in the course of argument. 06062005 D.l Tl/DBK (Muir J) 1 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 4 --