Alborn v Stephens (No 2) - [2009] QSC 372

SUPREME COURT OF QUEENSLAND

CITATION:

Alborn & Ors v Stephens & Ors (No 2) [2009] QSC 372

PARTIES:

RICHARD MOLLISON ALBORN

(first plaintiff)

AND

ALBORN FAMILY CORPORATION PTY LTD ACN 080 955 595

(second plaintiff)

AND

SHAYKAR PTY LTD ACN 076 868 552

(third plaintiff)

AND

RAY STEPHENS

(first defendant)

AND

GLENYS MARGARET STEPHENS

(second defendant)

AND

AS&L PTY LTD ACN 087 729 048

(third defendant)

FILE NO/S:

7795/06

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 November 2009

DELIVERED AT:

Brisbane

HEARING DATES:

Submissions on the papers, submitted 14 August 2009, 2 September 2009 and 15 September 2009

JUDGE:

Atkinson J

ORDERS:

1. The plaintiffs are to pay the defendants’ costs on a standard basis of and incidental to the action (including reserved costs) except for so much of the trial was taken up the need to obtain supplementary disclosure by the defendants.

2. The defendants are to pay the plaintiffs’ costs on a standard basis of so much of the trial as was taken up by the need to obtain supplementary disclosure by the defendants.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – DIFFICULTY OF ASSESSING DAMAGES – where court invited further submissions as to the manner of assessment of remaining consideration, if any, to be paid by the third defendant to the third plaintiff – where difficulty in assessing damages due to available accounting material and information – whether any consideration remained unpaid

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – AFFIDAVIT OF DOCUMENTS – EFFECT OF NON-DISCLOSURE – where orders made in 2007 required the defendants to make disclosure of particular source documents – where order required the first and second defendant to file and serve an affidavit in the event that the documents were not within their possession or under their control – where plaintiffs submitted that the defendants failed to comply with order by failing to file affidavit as to the circumstances in which a class of documents passed out of defendants’ possession or control – where a defendant gave sworn evidence as to loss of possession and control of the documents – whether compliance with order for disclosure

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where court made orders in relation to this matter and invited further submissions as to costs – what costs order was appropriate in the circumstances

Uniform Civil Procedure Rules 1999 (Qld), r 223(2), r 225, r 361

Alborn & Ors v Stephens & Ors [2009] QSC 198, referred to
Anderson v Aon Risk Services Australia Ltd [2004] QSC 180, cited
Mitchells Contractors Pty Ltd v Townsville –Thuringowa Water Supply Joint Board [2004] QSC 329, cited

Rathie v ING Life Ltd [2004] QSC 146, cited

COUNSEL:

Morris AJ, QC, with Greenwood K A M for plaintiff

Dunning PJ, SC, with Nevison L J for respondent

SOLICITORS:

Londy Lawyers for the plaintiffs

Gateway Lawyers for the defendants

On 29 July 2009, 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 (No 2)

Details

AGLC: Alborn v Stephens (No 2) [2009] QSC 372
Case: [2009] QSC 372
Decision Date: 20 November 2009

CaseChat Overview and Summary

The case of Alborn v Stephens (No 2) involved multiple parties and disputes over damages and procedural compliance in discovery and costs. The primary dispute centred on the assessment of damages due to difficulties in determining the amount of consideration, if any, remaining to be paid by the third defendant to the third plaintiff. Additionally, there was contention over whether the defendants had complied with discovery orders by not filing an affidavit regarding the circumstances of lost documents.

The court had to decide several legal issues, including the appropriate method for assessing damages in light of the available accounting material and information, whether any consideration remained unpaid, and whether the defendants had complied with discovery orders. The court also needed to determine the appropriate costs order given the proceedings and the need for supplementary disclosure by the defendants.

In its reasoning, the court found that the difficulty in assessing damages stemmed from the lack of available accounting material and information. It invited further submissions regarding the assessment of remaining consideration. Regarding the discovery orders, the court concluded that the defendants had failed to comply with the 2007 orders, which required them to file an affidavit if certain documents were not within their possession or control. The court also considered the costs incurred due to the need for supplementary disclosure and made orders accordingly.

The final orders of the court were that the plaintiffs were to pay the defendants’ costs on a standard basis, except for the portion of the trial dedicated to obtaining supplementary disclosure by the defendants. Conversely, the defendants were to pay the plaintiffs’ costs for the time taken to secure that supplementary disclosure. This outcome reflected the court's assessment of the procedural non-compliance and its impact on the trial.

Orders

Orders of the court

1. The plaintiffs are to pay the defendants’ costs on a standard basis of and incidental to the action (including reserved costs) except for so much of the trial was taken up the need to obtain supplementary disclosure by the defendants.

2. The defendants are to pay the plaintiffs’ costs on a standard basis of so much of the trial as was taken up by the need to obtain supplementary disclosure by the defendants.

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 (No 2) [2009] QSC 372
PARTIES:	RICHARD MOLLISON ALBORN (first plaintiff) AND ALBORN FAMILY CORPORATION PTY LTD ACN 080 955 595 (second plaintiff) AND SHAYKAR PTY LTD ACN 076 868 552 (third plaintiff) AND RAY STEPHENS (first defendant) AND GLENYS MARGARET STEPHENS (second defendant) AND AS&L PTY LTD ACN 087 729 048 (third defendant)
FILE NO/S:	7795/06
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 November 2009
DELIVERED AT:	Brisbane
HEARING DATES:	Submissions on the papers, submitted 14 August 2009, 2 September 2009 and 15 September 2009
JUDGE:	Atkinson J
ORDERS:	1. The plaintiffs are to pay the defendants’ costs on a standard basis of and incidental to the action (including reserved costs) except for so much of the trial was taken up the need to obtain supplementary disclosure by the defendants. 2. The defendants are to pay the plaintiffs’ costs on a standard basis of so much of the trial as was taken up by the need to obtain supplementary disclosure by the defendants.
CATCHWORDS:	DAMAGES – GENERAL PRINCIPLES – DIFFICULTY OF ASSESSING DAMAGES – where court invited further submissions as to the manner of assessment of remaining consideration, if any, to be paid by the third defendant to the third plaintiff – where difficulty in assessing damages due to available accounting material and information – whether any consideration remained unpaid PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – AFFIDAVIT OF DOCUMENTS – EFFECT OF NON-DISCLOSURE – where orders made in 2007 required the defendants to make disclosure of particular source documents – where order required the first and second defendant to file and serve an affidavit in the event that the documents were not within their possession or under their control – where plaintiffs submitted that the defendants failed to comply with order by failing to file affidavit as to the circumstances in which a class of documents passed out of defendants’ possession or control – where a defendant gave sworn evidence as to loss of possession and control of the documents – whether compliance with order for disclosure PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where court made orders in relation to this matter and invited further submissions as to costs – what costs order was appropriate in the circumstances Uniform Civil Procedure Rules 1999 (Qld), r 223(2), r 225, r 361 Alborn & Ors v Stephens & Ors [2009] QSC 198, referred to Anderson v Aon Risk Services Australia Ltd [2004] QSC 180, cited Mitchells Contractors Pty Ltd v Townsville –Thuringowa Water Supply Joint Board [2004] QSC 329, cited Rathie v ING Life Ltd [2004] QSC 146, cited
COUNSEL:	Morris AJ, QC, with Greenwood K A M for plaintiff Dunning PJ, SC, with Nevison L J for respondent
SOLICITORS:	Londy Lawyers for the plaintiffs Gateway Lawyers for the defendants