Ebanc Trade Pty Ltd v Clucor Pty Ltd [2004] QSC 321

State Reporting Bureau j^ooQ OSC3SU 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 MOYNIHAN J No 5298 of 2004 EBANC TRADE PTY LTD and CLUCOR PTY LTD BRISBANE ..DATE 27/08/2004 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 10 September, 2004 Plaintiff Defendant WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 3 -- HIS HONOUR: This is an application to set aside a judgment by default and an enforcement warrant' based on that judgment. 27082004 T09/JIR26 M/T 1/2004&2/2004 (Moynihan J) 1 The amount of the judgment was based on the claim advanced in the action. On the 16th of July, however, the claim was compromised for a lesser amount pursuant to heads of agreement bearing that date. The cause of action on which the claim and summary judgment were based therefore had, at the very least, arguably ceased. The cause of action merged in the compromise and the summary judgment must be set aside ex debito justitiae . 10 2i The question is whether it should be on terms. In my exercise of discretion, I am not prepared to order it be on terms. It is for the plaintiff to formulate the claim which it now seeks 30 to advance, whether that be based on breach of heads of agreement or some other basis and for the defendant to be given the opportunity to defend the claim which is advanced against it. 40 I therefore allow the application to set the summary judgment aside and the warrant. 50 HIS HONOUR: The applicant should have it ’s costs, to be assessed on the standard basis. 2 JUDGMENT SO -- 2 of 3 -- HIS HONOUR: I have inserted the provision about costs. 27082004 T09/JIR26 M/T 1/2004&2/2004 (Moynihan J) HIS HONOUR: Other than the reserve costs of Monday the 22nd of August. 10 20 30 40 50 3 JUDGMENT 80 -- 3 of 3 --