Alborn v Stephens - [2009] QCA 384

SUPREME COURT OF QUEENSLAND

CITATION:

Alborn & Ors v Stephens & Ors [2009] QCA 384

PARTIES:

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

FILE NO/S:

Appeal No 9392 of 2009
SC No 7795 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2009

JUDGES:

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

ORDERS:

Appeal allowed;1.

Orders of the primary judge made on 29 July 2009 set aside;2.

On or before 1 February 2010 the appellants and the respondents file and serve on the others of them a document which states the factual findings which have not been made which it is contended should be made as relevant to the order for account and related directions and which identifies precisely the evidence relied on to support each such finding;3.

The proceeding, including the counter-claim, be remitted to the primary judge for hearing and determination in accordance with these reasons; and4.

's date.The parties provide written submissions on costs within 28 days of today5.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – OFFER AND ACCEPTANCE – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – where primary judge found an agreement was reached in October 2001 between the first appellant and first respondent as to how the beneficial ownership of certain franchised stores was to be paid out to give effect to the severing of the contractual arrangements between the parties – where primary judge dismissed the first and second appellants' claims and declared the third appellant was entitled to payment of the remainder, if any, of the consideration owing once the value of the third respondent's payment of the third appellant's liability under its bill of sale and its trade debts were deducted from an agreed price – where appellants submitted that by finding such an agreement the primary judge made a critical finding inconsistent with the parties' pleaded cases, their conduct, the evidence and in denial of natural justice – whether the primary judge so erred

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61, cited
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110, cited
Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977] 2 Lloyd's Rep 5, cited

COUNSEL:

A J H Morris QC, with K A M Greenwood, for the appellants
P J Dunning SC, with L J Nevison, for the respondents

SOLICITORS:

Londy Lawyers for the appellants
Gateway Lawyers for the respondents

HOLMES JA:I agree with the reasons and conclusions of Muir JA and…

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 [2009] QCA 384
Case: [2009] QCA 384
Decision Date: 11 December 2009

CaseChat Overview and Summary

The dispute in Alborn v Stephens involved the first appellant and first respondent, who were in contention over the beneficial ownership of certain franchised stores and the payment of their respective shares. The primary judge determined that an agreement was reached in October 2001, regarding the division of these stores, which was to be executed by severing the contractual arrangements between the parties. The primary judge dismissed the claims of the first and second appellants and declared that the third appellant was entitled to payment from the third respondent, subject to deductions for the third respondent's payments under a bill of sale and trade debts. The appellants contested the primary judge's findings, asserting that the decision was inconsistent with the parties' pleaded cases, their conduct, the evidence presented, and the principles of natural justice.

The legal issues in this case revolved around the interpretation of the primary judge's findings, specifically whether the judge erred in concluding that an agreement had been reached in October 2001. The appellants argued that the primary judge's decision was inconsistent with the pleaded cases, conduct of the parties, evidence, and natural justice. The central issue was whether the primary judge's findings regarding the agreement were correct and if they were supported by the evidence and the law.

In addressing these issues, the court examined the evidence and the arguments presented by both parties. The court found that the primary judge's findings were not supported by the evidence and were inconsistent with the pleaded cases and conduct of the parties. The court held that the primary judge had erred in concluding that an agreement was reached in October 2001, and thus the appeal was allowed. The orders of the primary judge were set aside, and the matter was remitted for further hearing and determination. The appellants and respondents were required to file and serve on each other a document stating the factual findings that should be made and identifying the evidence relied on to support each finding. The parties were also directed to provide written submissions on costs within 28 days.

Orders

Orders of the court

Appeal allowed;1.

Orders of the primary judge made on 29 July 2009 set aside;2.

On or before 1 February 2010 the appellants and the respondents file and serve on the others of them a document which states the factual findings which have not been made which it is contended should be made as relevant to the order for account and related directions and which identifies precisely the evidence relied on to support each such finding;3.

The proceeding, including the counter-claim, be remitted to the primary judge for hearing and determination in accordance with these reasons; and4.

's date.The parties provide written submissions on costs within 28 days of today5.

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:	Alborn & Ors v Stephens & Ors [2009] QCA 384
PARTIES:	RICHARD MOLLISON ALBORN (first plaintiff/first appellant) ALBORN FAMILY CORPORATION PTY LTD ACN 080 955 595 (second plaintiff/second appellant) SHAYKAR PTY LTD ACN 076 868 552 (third plaintiff/third appellant) v RAY STEPHENS (first defendant/first respondent) GLENYS MARGARET STEPHENS (second defendant/second respondent) AS&L PTY LTD ACN 087 729 048 (third defendant/third respondent)
FILE NO/S:	Appeal No 9392 of 2009 SC No 7795 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2009
JUDGES:	Holmes and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal allowed;1. Orders of the primary judge made on 29 July 2009 set aside;2. On or before 1 February 2010 the appellants and the respondents file and serve on the others of them a document which states the factual findings which have not been made which it is contended should be made as relevant to the order for account and related directions and which identifies precisely the evidence relied on to support each such finding;3. The proceeding, including the counter-claim, be remitted to the primary judge for hearing and determination in accordance with these reasons; and4. 's date.The parties provide written submissions on costs within 28 days of today5.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – OFFER AND ACCEPTANCE – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – where primary judge found an agreement was reached in October 2001 between the first appellant and first respondent as to how the beneficial ownership of certain franchised stores was to be paid out to give effect to the severing of the contractual arrangements between the parties – where primary judge dismissed the first and second appellants' claims and declared the third appellant was entitled to payment of the remainder, if any, of the consideration owing once the value of the third respondent's payment of the third appellant's liability under its bill of sale and its trade debts were deducted from an agreed price – where appellants submitted that by finding such an agreement the primary judge made a critical finding inconsistent with the parties' pleaded cases, their conduct, the evidence and in denial of natural justice – whether the primary judge so erred Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61, cited Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110, cited Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977] 2 Lloyd's Rep 5, cited
COUNSEL:	A J H Morris QC, with K A M Greenwood, for the appellants P J Dunning SC, with L J Nevison, for the respondents
SOLICITORS:	Londy Lawyers for the appellants Gateway Lawyers for the respondents