SUPREME COURT OF QUEENSLAND
CITATION:
Alford & Ors v Ebbage & Ors [2004] QCA 283
PARTIES:
ANTHONY JAMES ALFORD
(first plaintiff/first appellant)
DARIO PTY LTD ACN 051 964 697
(second plaintiff/second appellant)
AE HOLDINGS PTY LTD ACN 010 697 266
(third plaintiff/third appellant)
AE FINANCE CO PTY LTD ACN 010 766 775
(fourth plaintiff/fourth appellant)
IPA (QLD) PTY LTD ACN 074 450 089
(fifth plaintiff/fifth appellant)
ALFORD EBBAGE SERVICES PTY LTD
ACN 059 651 286
(sixth plaintiff/sixth appellant)
AE GROUP PTY LTD ACN 059 315 178
(seventh plaintiff/seventh appellant)
v
RAYMOND JOSEPH EBBAGE for himself and as
executor of the estate of PAUL GERRARD EBBAGE deceased
(first defendant/first respondent)
HPM INVESTMENTS PTY LTD ACN 083 664 680
(second defendant/second respondent)
ADVANCED ENGINE TECHNOLOGY PTY LTD
ACN 063 092 759
(third defendant/third respondent)
STEVEN CHARLES MANTHEY
(fourth defendant/fourth respondent)
OX2 INTELLECTUAL PROPERTY INC
(fifth defendant)
OX2 ENGINE (DISTRIBUTION) LIMITED
(sixth defendant)
EQUITY HOLDINGS INC
(seventh defendant)
SOUTHPAC NOMINEES INC
(eighth defendant)
MACRO MANAGEMENT GROUP INC
(ninth defendant/fifth respondent)
BRENDA MARY MANTHEY
(tenth defendant/sixth respondent)
GREEN FIT N.Z. LIMITED ACN 088 084 673
(eleventh defendant/seventh respondent)
MOTOR CITY INC
(twelfth defendant/eighth respondent)
EBBCO OFFICE SERVICES PTY LTD
ACN 053 769 789
(thirteenth defendant/ninth respondent)FILE NO/S:
Appeal No 8863 of 2003
SC No 3677 of 2000DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
6 August 2004
DELIVERED AT:
Brisbane
HEARING DATES:
5 May 2004; 6 May 2004JUDGES:
de Jersey CJ, Jerrard JA and Muir J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders madeORDERS:
That the appeal by the fourth appellant, AE Finance Pty Ltd, be allowed as against the ninth respondent, Ebbco Office Services Pty Ltd, and that it be ordered that respondent pay AE Finance Pty Ltd the amount of $384,396.00, being $222,516 claimed together with $161,880 interest thereon calculated at the rate of nine per cent per annum from 30 June 1996;1.
that Ebbco Office Services Pty Ltd pay the costs of AE Finance Pty Ltd of the trial and the appeal, to be assessed on the standard basis;2.
and otherwise that the appeals by the first to seventh appellants inclusive be dismissed against all respondents, with costs, calculated on the standard basis
3.CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where appellants unsuccessfully claimed a 25% interest in a tripartite joint venture allegedly entered into between the appellants and respondents – whether trial judge erred in finding that there was no tripartite joint venture entered into – where that finding amply supported by the evidence at trial
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED IN PLEADINGS OR IN ARGUMENT – GENERALLY – where appellants made application…
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- AGLC
- Alford v Ebbage [2004] QCA 283
- Case
- [2004] QCA 283
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the trial judge had erred in finding that no tripartite joint venture existed. The court considered the principles governing appellate review of factual findings and the extent to which it was appropriate to interfere with the trial judge's assessment of the evidence. The court also examined whether the existence of a joint venture agreement could be inferred from the conduct of the parties. Additionally, the court addressed whether points and objections not raised in the initial proceedings could be considered on appeal, particularly when an application to amend pleadings was made late in the appeal process.
The court held that the trial judge's findings were supported by the evidence and that it was not appropriate for the appellate court to substitute its own findings of fact for those of the trial judge. The court further ruled that arguments and objections not raised during the original trial could not be considered on appeal, particularly if they were raised too late and would have significantly altered the conduct of the case. Consequently, the appeals by the first to seventh appellants were dismissed, while the appeal by AE Finance Pty Ltd was allowed against Ebbco Office Services Pty Ltd. The court ordered that Ebbco Office Services Pty Ltd pay AE Finance Pty Ltd $384,396.00, including interest, and that costs be awarded on the standard basis.
Orders
Orders of the court
That the appeal by the fourth appellant, AE Finance Pty Ltd, be allowed as against the ninth respondent, Ebbco Office Services Pty Ltd, and that it be ordered that respondent pay AE Finance Pty Ltd the amount of $384,396.00, being $222,516 claimed together with $161,880 interest thereon calculated at the rate of nine per cent per annum from 30 June 1996;1.
that Ebbco Office Services Pty Ltd pay the costs of AE Finance Pty Ltd of the trial and the appeal, to be assessed on the standard basis;2.
and otherwise that the appeals by the first to seventh appellants inclusive be dismissed against all respondents, with costs, calculated on the standard basis
3.
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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