Amos v Wiltshire

Case [2016] QCA 77


SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Wiltshire [2016] QCA 77

PARTIES:

EDWARD AMOS
(applicant/respondent)
v
CHRISTOPHER WILTSHIRE
(respondent/appellant)

FILE NO/S:

Appeal No 4199 of 2010
DC No 1527 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application to Reopen (Civil)

ORIGINATING COURT:


District Court at Brisbane – [2010] QDC 138

DELIVERED ON:

Orders delivered ex tempore 28 August 2015
Reasons delivered 1 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2015

JUDGES:

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

ORDERS:

Delivered ex tempore on 28 August 2015:

The application filed by the applicant on 2 August 2012 is dismissed.1.   

The application filed by the applicant on 24 August 2015 is dismissed.2.   

The applicant is to pay the respondent’s costs of each of those applications, including costs reserved by orders of this Court and by order of Martin J made on 29 August 2014, on the indemnity basis.3.   

The applicant is to pay to the respondent the sum of $200,288.90, being the claim, costs and interest to today, Act 2011 (Qld), such interest to be calculated from 28 August 2015 until the date of payment. to s 59(3) of the Civil Proceedingstogether with interest on the sum of $133,390.28 pursuant4.   

The applicant is to pay the respondent’s costs including application filed in District Court action 1527 of 2009 on 13 July 2012 for repayment of monies paid by the respondent pursuant to the order of Samios DCJ in that action, on the standard basis.reserved costs, if any, of and incidental to the respondent’s5.   

The orders made on 16 May 2013 by Muir JA, save for paragraph 1(c) of those orders, are vacated.6.   

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where the applicant was unsuccessful on appeal and a retrial was ordered – where prior to the retrial the applicant filed an application pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Court ordered that issues arising in that application be remitted to the Trial Division – where a judge of the Trial Division made findings against the applicant – where the applicant subsequently sought a further hearing in relation to the issues determined in the Trial Division – where the applicant alleged that facts had been discovered which would have entitled him to an order in his favour – where the ‘fresh evidence’ was unpersuasive and equivocal – where the ‘fresh evidence’ could have been discovered earlier through reasonable diligence – where the considerable delay between the determination in the Trial Division and the present application was a consequence of the applicant bringing and abandoning a number of other applications – where the Court considered it wholly inappropriate to allow the applicant further time to…

Continue reading Amos v Wiltshire

Sign in free to access the full text

Details
AGLC
Amos v Wiltshire [2016] QCA 77
Case
[2016] QCA 77
Decision Date

CaseChat Overview and Summary

In Amos v Wiltshire, the applicant sought to have a judgment set aside and to appeal various orders made by the court. The respondent opposed the applications, arguing that the applications were not properly before the court. The dispute came before the court, which was required to determine whether the applicant's applications were valid and should be considered. The court was also required to determine whether the applicant's claims of new evidence were sufficient to warrant setting aside the judgment and whether the delay in bringing the applications was justified.

The court found that the applicant's applications were not valid and should not be considered. The court held that the applicant had failed to provide sufficient evidence to support his claims of new evidence and that the delay in bringing the applications was unjustified. The court found that the applicant could have discovered the new evidence through reasonable diligence and that the delay was a consequence of the applicant bringing and abandoning other applications. The court held that it was wholly inappropriate to allow the applicant further time to challenge the court's final orders and the determination in the Trial Division.

The court dismissed the applicant's applications and ordered that the applicant pay the respondent's costs. The court also ordered that certain orders made by another judge be vacated, save for one specific paragraph. The court held that the respondent was entitled to recover the sum of the claim, costs, and interest, together with interest on the sum of $133,390.28. The court further ordered that the applicant pay the respondent's costs of an earlier application, on the standard basis.

Orders

Orders of the court

Delivered ex tempore on 28 August 2015:

The application filed by the applicant on 2 August 2012 is dismissed.1.

The application filed by the applicant on 24 August 2015 is dismissed.2.

The applicant is to pay the respondent’s costs of each of those applications, including costs reserved by orders of this Court and by order of Martin J made on 29 August 2014, on the indemnity basis.3.

The applicant is to pay to the respondent the sum of $200,288.90, being the claim, costs and interest to today, Act 2011 (Qld), such interest to be calculated from 28 August 2015 until the date of payment. to s 59(3) of the Civil Proceedingstogether with interest on the sum of $133,390.28 pursuant4.

The applicant is to pay the respondent’s costs including application filed in District Court action 1527 of 2009 on 13 July 2012 for repayment of monies paid by the respondent pursuant to the order of Samios DCJ in that action, on the standard basis.reserved costs, if any, of and incidental to the respondent’s5.

The orders made on 16 May 2013 by Muir JA, save for paragraph 1(c) of those orders, are vacated.6.

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.