Case: Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310
Outcome: referred to
In his second affidavit, Edwards deposed that: "Pursuant to the Court Orders made by consent on 10 October 2005 the Liquidator failed to deliver Vehicle 2316 to the person that I nominated (as specified in clause 1 of the Orders) until some two weeks after the making of the order. On 31 January 2006 I informed McDermott's Workshop of my trust account details as he had indicated to me that he was providing by direct transfer of funds the amount of $33,000.00 being the sum required to payout the Liquidator pursuant to clause 2 of the 10 October 2005 orders. ... Funds were shown as having been 'cleared' into my trust account on 1 February 2006. I informed the Applicants that I had received the funds into my trust account on 1 February 2006, however, the Applicants indicated to me that the funds were in fact deposited into my trust account on 31 January 2006." Counsel for the applicants submitted that the Court has the power to vary the order under O 35 r 7(2)(c) of the Federal Court Rules 1979 which allows the Court to "vary or set aside a judgment or order after the order has been entered where . . . the order is interlocutory." The applicants argued that the consent orders were interlocutory because they included an order reserving liberty to apply. Counsel for the applicants also relied on O 35 r 7(4) (and, in this connection, Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310) and the inherent jurisdiction of the Court. 9 In the applicants' view, a number of factors support the conclusion that this is an appropriate case to exercise the discretion conferred by O 35 r 7(2) or O 35 r 7(4) or in the Court's inherent jurisdiction. First, so the applicants claimed, the consent orders show that the intention of the parties was that $33,000 be exchanged for the relevant vehicles. Secondly, this money was available to be transferred to the respondents on 31 January 2006 (or at the latest 1 February 2006). Thirdly, according to the applicants, the reason that the money was not delivered on 31 January 2006 was that, contrary to both parties' expectations, reasons for judgment regarding the application to set aside the warrant were not delivered until after than date. Fourthly, the money is available to be paid immediately. Fifthly, the respondents would not, so the applicants said, be prejudiced by a variation in the order. Sixthly, having regard to the liquidator's own delay in delivering vehicle 2316, there should have been no difficulty in the parties agreeing to disregard the delay on the applicants' side. Finally, if the time were not extended, then the liquidator would, so the applicants said, receive a windfall gain not intended by the settlement giving rise to the orders of 10 October 2005. 10 The applicants conceded that they had not paid the $33,000 before 31 January 2006 because they expected a different result in the application to set aside the warrant. They argued that while this view may have been "na&iuml;ve", they should not suffer prejudice as a consequence. They also sought the costs of their application. 23 The orders in paragraphs 2 and 2A of the orders of 10 October 2005 were final orders with respect to the application of 24 March 2004. Thus, the Court has no power to vary these orders pursuant to O 35 r 7(2). Further, the Court has no power under O 35 r 7(4) to make the orders the applicant seeks. As a Full Court said in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 264 per Lee, Hill and Cooper JJ, regarding O 35 r 7(4), "[c]ritical to the jurisdiction of the court is first that the application not be one in any way to vary or alter the initial order". The applicants seek orders to vary the orders in paragraphs 2 and 2A of the 10 October 2006 orders; and O 35 r 7(4) does not give power to do this. In the face of Full Court authority, the earlier decision in Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 is either to be distinguished or is no longer good authority.