Felaifel & Ors v Babtain & Ors [2003] QSC 464

State Reporting Bureau IjZCXB} QSC 46^- 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 HELMAN J REVISED COPIES ISSUED State Reporting Bureau Date: 8 January, 2004 No BS9341 of 2003 ADEL JASSIM FELAIFEL First Applicant and ANNE WINDSOR Second Applicant and AL HEJRA PTY LTD ACN 097 843 242 Third Applicant and HEJRA (NO 545) PTY LTD Fourth Applicant ACN 099 608 714 and GEORGE (NO 171) ACN 099 272 170 PTY LTD ACN 099 PTY LTD AND 100 EAGLE STREET 272 198 Fifth Applicant and /ARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal ffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for leir 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 h Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 8 -- 17122003 T02/HMC9 M/T 1/2003 (Heiman J) 1 AC WINDSOR PTY LTD ACN 099 315 554 Sixth Applicant and BRISBAH PTY LTD ACN 097 958 873 Seventh Applicant and 10 OMAR ALI BABTAIN First Respondent and KHALID BIN NASSER BIN ABDULLA AL MISNAD Second Respondent No S6153 of 2002 2u OMAR ALI BABTAIN First Applicant and KHALID BIN NASSER BIN ABDULLA AL MISNAD Second Applicant and 30 INTERNATIONAL TRADING & DEVELOPMENT COMPANY Third Applicant and ADEL JASSIM FELAIFEL First Respondent and ANNE WINDSOR Second Respondent and AL HEJRA PTY LTD ACN 097 843 242 Third Respondent and HEJRA (NO 545) PTY LTD ACN 099 608 714 Fourth Respondent 50 and GEORGE (NO 171) PTY LTD ACN 099 272 170 AND 100 EAGLE STREET PTY LTD ACN 099 272 198 Fifth Respondent and 2 60 -- 2 of 8 -- AC WINDSOR PTY LTD ACN 099 315 554 Sixth Respondent and BRISBAH PTY LTD ACN 097 958 873 Seventh Respondent 17122003 T02/HMC9 M/T 1/2003 (He-lman J) BRISBANE ..DATE 17/12/2003 JUDGMENT 1 10 20 30 40 50 3 60 -- 3 of 8 -- HIS HONOUR: There are two applications before the Court. 1 17122003 T02/HMC9 M/T 1/2003 (Helman J) On 20 October 2003 an originating application (no. BS9341 of 2003) by Al Hejra Pty Ltd, Hejra (No 545) Pty Ltd, George (No 171) Pty Ltd, 100 Eagle Street Pty Ltd, AC Windsor Pty Ltd and Brisbah Pty Ltd was filed seeking an order against Omar Ali Babtain and Khalid Bin Nasser Bin Abdulla Al Misnad that statutory demands dated 29 September 2003 be set aside pursuant to S.459J of the Corporations Act 2001. There were two other, natural, persons, Adel Jassim Felaifel and Anne Windsor, shown as applicants in the heading of the originating application but they are not applicants. There were two grounds given for the application, but only one was proceeded with before me: "that there is a genuine dispute about the existence and amount of the debt due which the demands relate" . 10 2 b 30 The second application was filed on 23 October 2003 in proceeding no. S6153 of 2002. In it the applicants in proceeding no. BS9341 of 2003 and Adel Jassim Felaifel and Anne Windsor, being respondents in proceeding no. S6153 of 2002, sought an order that paragraph (c) of the judgment dated 4 February 2003 in that proceeding (no. S6153 of 2002) be set aside. The respondents to the second application, applicants in proceeding no. 6153 of 2002, are the respondents in the first, together with the third applicant in proceeding no. S6153 of 2002, International Trading & Development Company. & 50 4 JUDGMENT 60 -- 4 of 8 -- To understand the disputes that have given rise to these applications one must first go to a written agreement dated 1 October 2002 between Omar Ali Babtain, Khalid Bin Nasser Bin Abdulla Al Misnad, Jassim Abdulla Al Misnad, Saud Almana, and International Trading & Development Company (referred to in the agreement as "the first parties") and Adel Jassim Felaifel, Anne Cherie Windsor, Al Hejra Pty Ltd, Hejra (No 545) Pty Ltd, George (No 171) Pty Ltd, 100 Eagle Street Pty Ltd, AC Windsor Pty Ltd, Brisbah Pty Ltd, and Al Massar Real Estate Investment Company (referred to in the agreement as "the Respondents".) The agreement begins with an introductory recital recording that "[t]he Respondents are desirous of settling the claims made by the first parties...in respect of proceedings S6153 of 2002 and S8477 of 2002". Clause 9 provides that the Respondents "agree to pay to the first parties' costs in the amount of AUD $400,000 by February 1, 2003" . On 3 October 2002 Atkinson J. made an order by consent in proceeding no. 6153 of 2002. Paragraphs 7 and 8 of the order, so far as they are relevant, are as follows: 7. That, upon the filing of an Affidavit in accordance with paragraph 8 hereof (herein called "the Affidavit"), the Applicants (and each of them) may immediately enter judgment in the Registry of this Honourable Court, against the Respondents (and each of them), for the following relief: (a) To recover such monetary sums, whether in Australian currency or in the currency of Bahrain, as has been agreed to be paid by the Respondents to the Applicants, in accordance with the instrument entitled "Heads of Agreement" dated 1 October 2002 entered into between the Applicants, the Respondents and 17122003 T02/HMC9 M/T 1/2003 (Helman J) 1 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 8 -- 17122003 T02/HMC9 M/T 1/2003 (Helman J) others (herein called "the Heads of Agreement"), reduced to the extent that, as deposed to in the Affidavit: (i) Payment has been made to and received by the Applicants (or each of them) in accordance with the Heads of Agreement ... 8. The Affidavit must: (a) Be made by a solicitor of this Honourable Court, acting on behalf of the Applicants (or any of them) ; (b) Exhibit a copy of the Heads of Agreement; (c) Contain details of: (i) all payments made, and all properties transferred, by the Respondents (or any of them) to the Applicants (or any of them) in accordance with the Heads of Agreement; (ii) all payments which the Respondents (or any of them) have failed to make to the Applicants (or any of them) in breach of the Heads of Agreement; (v) all other information reasonably necessary to enable orders to be taken out in accordance with paragraph 7 hereof . On 4 February 2003, before a Deputy Registrar, judgment was entered against the respondents in proceeding no. 6153 of 2002 inter alia requiring them to pay to Omar Ali Babtain and Khalid Bin Nasser Bin Abdulla Al Misnad "the sum of $400,000.00 in accordance with clause 9 of the Heads of Agreement" (paragraph (c) ). A narrative recital to the judgment recorded that the respondents, referred to as defendants, had not complied "with a 'Heads of Agreement 1 executed by, amongst others, the First, Second, and Third Plaintiffs [Omar Ali Babtain, Khalid Bin Nasser Bin Abdulla Al Misnad and International Trading & Development Company] ." 6 JUDGMENT -- 6 of 8 -- In support of their application filed on 23 October 2003 the applicants contend that the judgment for the $400,000 was irregularly entered because the agreement of 1 October 2002 created an obligation to pay the $400,000 to joint, but not several, obligees, the five first parties. On the principle explained in 9(1) Halsbury's Laws of England, 4th ed. reissue (1998), para. 1081 p.812, all joint obligees were necessary parties to a proceeding to enforce the obligation, but since only two of the five first parties sought, and obtained, the judgment for the $400,000 it was fatally flawed and must be set aside. On behalf of Omar Ali Babtain and Khalid Bin Nasser Bin Abdulla Al Misnad, Mr Morris Q.C. did not challenge that legal principle but did argue that the judgment was not irregular, and if it is the defect in it may properly be remedied by amendment by adding the three missing first parties to it. Mr Morris's first argument rests upon the wording of the consent order, and in particular the parenthetical words "and each of them" where they appear first in paragraph 7. Those words clearly have the effect, Mr Morris argued, of converting the obligation under the agreement to an obligation enforceable severally by each of the three applicants in proceeding no. 6153 of 2002.I I am persuaded that Mr Morris's first argument is correct. The rights and obligations created by the agreement were superseded by those provided for and agreed to in the consent order. The $400,000 was treated in the agreement of 1 October 17122003 T02/HMC9 M/T 1/2003 (He!man J) 1 10 20 30 40 50 7 JUDGMENT 60 -- 7 of 8 -- 2002 as a lump sum owing to all five first parties, without any dissection revealing how the figure was made up. Then the consent order provided for the enforcement of the obligation by three of the five either jointly, or, as I read the order, severally. The application to set aside paragraph (c) of the judgment of 4 February 2003 must then be dismissed. 17122003 T02/HMC9 M/T 1/2003 (Helman J) 1 10 The creditors' statutory demands issued by Omar Ali Babtain and Khalid Bin Nasser Bin Abdulla Al Misnad against the applicants in the originating application all relied on the 2o judgment of 4 February 2003. The issue on the application to have paragraph (c) of that judgment having been resolved in favour of the respondents, it follows that the originating application too must be dismissed: so both applications will be dismissed. 30 HIS HONOUR: I order that the originating application be amended by striking out the names of the first and second applicants as parties to the application. In the case of each application the orders are that the application is dismissed, and that the applicants pay to the respondents their costs of and incidental to the application to be assessed. 50 8 JUDGMENT 60 -- 8 of 8 --