Agripower Australia Ltd v Coleman - [2015] QCA 266

SUPREME COURT OF QUEENSLAND

CITATION:

Agripower Australia Ltd v Coleman & Anor [2015] QCA 266

PARTIES:

AGRIPOWER AUSTRALIA LTD

ACN 132 823 226(appellant)
v
JOHN W COLEMAN
(first respondent)
DIANNE L COLEMAN
(second respondent)

FILE NO/S:

Appeal No 5436 of 2015
SC No 189 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns – [2015] QSC 118

DELIVERED ON:

8 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2015

JUDGES:

Margaret McMurdo P and Morrison JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant held a mining lease over a large deposit of diatomaceous earth (which has commercial value as a fertiliser and soil conditioner) in North Queensland – where the appellant decided to establish a mining operation to extract and sell that material – where the appellant engaged the respondents to assist in establishing that mining operation – where the respondents undertook various works, including providing equipment for screening the diatomaceous earth – where, after screening, the diatomaceous earth was not of the intended size – where the trial judge gave judgment in favour of the respondents in respect of a claim for remuneration for services undertaken at the appellant’s request – where the trial judge dismissed the appellant’s counterclaim, for a loss of profits occasioned by the respondents’ failure to exercise care and skill in undertaking those services – where the appellant appealed against those orders – whether the primary judge’s conclusion, that any loss and damage suffered by the appellant was not the result of a failure of care and skill on the part of the respondents, was contrary to the evidence – whether, if the appellant succeeded in that contention, the damages suffered by the appellant ought properly to have been set off against monies owing to the respondents, such that the judgment entered in favour of the respondents should be set aside and judgment entered for the appellant in the amount still owing after that set-off

COUNSEL:

D B O’Sullivan, with A C Stumer, for the appellant
M A Jonsson for the respondent

SOLICITORS:

Shine Lawyers for the appellant
Williams Graham & Carman for the respondent

MARGARET McMURDO P: I agree with Boddice J’s reasons for dismissing this appeal with costs.
MORRISON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
BODDICE J: On 5 May 2015, judgment was entered in favour of the respondents in respect of a claim for remuneration for services undertaken at the appellant’s request. The appellant’s counterclaim, for a loss of profits occasioned by the respondents’ failure to exercise care and skill in undertaking those services, was dismissed.
The appellant appeals against those orders. At issue is whether the primary Judge’s conclusion, that any loss and damage suffered by the appellant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agripower Australia Ltd v Coleman

Details

AGLC: Agripower Australia Ltd v Coleman [2015] QCA 266
Case: [2015] QCA 266
Decision Date: 8 December 2015

CaseChat Overview and Summary

Agripower Australia Ltd sought to establish a mining operation to extract and sell diatomaceous earth from a deposit in North Queensland. The company engaged the respondents to assist in establishing the operation, including providing equipment for screening the earth. After screening, the earth was not of the intended size, leading to disputes over remuneration and damages. The trial judge ruled in favour of the respondents for remuneration and dismissed the appellant’s counterclaim for loss of profits due to the respondents' alleged failure to exercise care and skill. The appellant appealed, arguing that the trial judge's conclusion on the respondents' liability was contrary to the evidence and that the damages should have been set off against monies owed to the respondents.

The court examined whether the trial judge's conclusion that the loss suffered by the appellant was not due to a failure of care and skill on the part of the respondents was supported by the evidence. The appellant argued that the respondents' failure to properly screen the diatomaceous earth resulted in significant financial loss. However, the court found that the evidence did not support the appellant's claim that the respondents were negligent in their duties. The court also considered whether, if the appellant had succeeded in its contention, the damages should have been offset against the money owed to the respondents. The court found that the trial judge's assessment of the evidence was correct, and the appeal was dismissed with costs.

In light of the findings, the appeal was dismissed with costs. The court held that the trial judge's determination on the issues of liability and damages was well-founded and that there was no basis to set aside the judgment in favour of the respondents. The final order was that the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Agripower Australia Ltd v Coleman & Anor [2015] QCA 266
PARTIES:	AGRIPOWER AUSTRALIA LTD ACN 132 823 226(appellant) v JOHN W COLEMAN (first respondent) DIANNE L COLEMAN (second respondent)
FILE NO/S:	Appeal No 5436 of 2015 SC No 189 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns – [2015] QSC 118
DELIVERED ON:	8 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2015
JUDGES:	Margaret McMurdo P and Morrison JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant held a mining lease over a large deposit of diatomaceous earth (which has commercial value as a fertiliser and soil conditioner) in North Queensland – where the appellant decided to establish a mining operation to extract and sell that material – where the appellant engaged the respondents to assist in establishing that mining operation – where the respondents undertook various works, including providing equipment for screening the diatomaceous earth – where, after screening, the diatomaceous earth was not of the intended size – where the trial judge gave judgment in favour of the respondents in respect of a claim for remuneration for services undertaken at the appellant’s request – where the trial judge dismissed the appellant’s counterclaim, for a loss of profits occasioned by the respondents’ failure to exercise care and skill in undertaking those services – where the appellant appealed against those orders – whether the primary judge’s conclusion, that any loss and damage suffered by the appellant was not the result of a failure of care and skill on the part of the respondents, was contrary to the evidence – whether, if the appellant succeeded in that contention, the damages suffered by the appellant ought properly to have been set off against monies owing to the respondents, such that the judgment entered in favour of the respondents should be set aside and judgment entered for the appellant in the amount still owing after that set-off
COUNSEL:	D B O’Sullivan, with A C Stumer, for the appellant M A Jonsson for the respondent
SOLICITORS:	Shine Lawyers for the appellant Williams Graham & Carman for the respondent