Alborn v Stephens - [2012] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

Alborn & Ors v Stephens & Ors [2012] QCA 176

PARTIES:

RICHARD MOLLISON ALBORN
(first appellant)
ALBORN FAMILY CORPORATION PTY LTD
ACN 080 955 595
(second appellant)
SHAYKAR PTY LTD
ACN 076 868 552
(third appellant)
v
RAY STEPHENS
(first respondent)
GLENYS MARGARET STEPHENS
(second respondent)
AS & L PTY LTD
ACN 087 729 048
(third respondent)

FILE NO/S:

Appeal No 11669 of 2011
SC No 7795 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2012

JUDGES:

Holmes and Fraser JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal is allowed.

2.    Judgment and orders at first instance are set aside.

3.    Submissions are to be provided within 14 days hereof as to the orders which should now be made.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the appellants were plaintiffs in an action for damages and compensation – where the appellants alleged the respondents had, in breach of agreements and fiduciary duty, asserted an entitlement to the third appellant company’s interest in two franchise businesses – where the respondents counter-claimed against the first appellant for a failure to account for the settlement proceeds of another action and for oppressive conduct constituted by a share issue in the third appellant – where the primary judge made findings of agreements to transfer the third appellant’s interest in each business to the respondents – where the finding in respect of the first business was upheld on appeal and the finding in respect of the second business set aside – where the proceeding was remitted to the primary judge for further findings – where the primary judge found in respect of the agreement in relation to the first business that there was no additional term requiring the first and second respondent to transfer their beneficial interest in shares of the third appellant – where the primary judge found oppressive conduct by the first appellant – where the primary judge found the first appellant had failed to account for settlement proceeds – where the primary judge found that the increase in value of the second business was entirely attributable to the first and second respondents’ skill and expertise from the time they took it over – where the primary judge refused to find that the respondents had used the second business to establish and maintain their own businesses – where the primary judge ordered the taking of an account in respect of the second business only up to the date of judgment – where the primary judge accepted what the first and second respondents had said as to hours worked and expenditure in attending conferences in relation to the second business – whether the primary judge erred in the…

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 Alborn v Stephens

Details

AGLC: Alborn v Stephens [2012] QCA 176
Case: [2012] QCA 176
Decision Date: 26 June 2012

CaseChat Overview and Summary

In the case of Alborn v Stephens, the appellants sought damages and compensation, alleging that the respondents had violated agreements and breached fiduciary duties by claiming ownership of the third appellant's interests in two franchise businesses. The respondents counter-claimed, accusing the first appellant of failing to account for settlement proceeds from a prior lawsuit and of oppressive conduct related to a share issue in the third appellant. The court was required to determine whether the primary judge's findings and orders were correct. The appeal raised issues about the existence of agreements to transfer the third appellant's interests, the existence of additional terms in those agreements, the conduct of the first appellant, and the proper accounting for the second business.

The court examined the primary judge's findings regarding the agreements and concluded that the finding in respect of the first business was correctly upheld, while the finding in respect of the second business was set aside. The court found that the primary judge had erred in concluding there was no additional term requiring the respondents to transfer their beneficial interest in shares of the third appellant. Additionally, the court found that the primary judge correctly identified oppressive conduct by the first appellant and a failure to account for settlement proceeds. The primary judge's refusal to find that the respondents had used the second business for personal gain was also upheld, although the court noted that the primary judge's acceptance of the respondents' statements about their hours and expenditure may have been an error.

The appeal was allowed, and the judgment and orders at first instance were set aside. The parties were directed to submit proposals for new orders within 14 days.

Orders

Orders of the court

1. Appeal is allowed.

2. Judgment and orders at first instance are set aside.

3. Submissions are to be provided within 14 days hereof as to the orders which should now be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Alborn & Ors v Stephens & Ors [2012] QCA 176
PARTIES:	RICHARD MOLLISON ALBORN (first appellant) ALBORN FAMILY CORPORATION PTY LTD ACN 080 955 595 (second appellant) SHAYKAR PTY LTD ACN 076 868 552 (third appellant) v RAY STEPHENS (first respondent) GLENYS MARGARET STEPHENS (second respondent) AS & L PTY LTD ACN 087 729 048 (third respondent)
FILE NO/S:	Appeal No 11669 of 2011 SC No 7795 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	21 May 2012
JUDGES:	Holmes and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal is allowed. 2. Judgment and orders at first instance are set aside. 3. Submissions are to be provided within 14 days hereof as to the orders which should now be made.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the appellants were plaintiffs in an action for damages and compensation – where the appellants alleged the respondents had, in breach of agreements and fiduciary duty, asserted an entitlement to the third appellant company’s interest in two franchise businesses – where the respondents counter-claimed against the first appellant for a failure to account for the settlement proceeds of another action and for oppressive conduct constituted by a share issue in the third appellant – where the primary judge made findings of agreements to transfer the third appellant’s interest in each business to the respondents – where the finding in respect of the first business was upheld on appeal and the finding in respect of the second business set aside – where the proceeding was remitted to the primary judge for further findings – where the primary judge found in respect of the agreement in relation to the first business that there was no additional term requiring the first and second respondent to transfer their beneficial interest in shares of the third appellant – where the primary judge found oppressive conduct by the first appellant – where the primary judge found the first appellant had failed to account for settlement proceeds – where the primary judge found that the increase in value of the second business was entirely attributable to the first and second respondents’ skill and expertise from the time they took it over – where the primary judge refused to find that the respondents had used the second business to establish and maintain their own businesses – where the primary judge ordered the taking of an account in respect of the second business only up to the date of judgment – where the primary judge accepted what the first and second respondents had said as to hours worked and expenditure in attending conferences in relation to the second business – whether the primary judge erred in the…