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Bodycorp Repairers Pty Ltd v Holding Redlich

Bodycorp Repairers Pty Ltd v Holding Redlich

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Case Copied 8 February 2018 77 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0063

BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)	Applicant
v
HOLDING REDLICH	Respondent

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JUDGES:	WHELAN and SANTAMARIA JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2017
DATE OF JUDGMENT:	8 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 17	First Revision: 9 February 2018 para [15]
JUDGMENT APPEALED FROM:	[2017] VSC 215 (Macaulay J)

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SUMMARY JUDGMENT – Primary judge summarily dismissed negligence proceeding brought by applicant on basis that proceeding statute barred – Whether primary judge erred in determining limitation defence on summary basis – Whether primary judge erred in assessing when cause of action accrued – Hawkins v Clayton (1988) 164 CLR 539, Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388, HTW Valuers (Central Qld) Pty Ltd v AstonlandPty Ltd (2004) 217 CLR 640 and Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 applied – Limitation of Actions Act 1958 s 5 – Civil Procedure Act 2010 s 63.

COURTS AND JUDGES – Apprehended bias – Application for summary judgment – Where preliminary applications made before and during hearing of summary judgment application – Whether judge acted with reasonable apprehension of bias in dealing with application to restrain legal practitioners – Where judge accepted affidavit evidence without cross-examination – Where applicant alleges that judge made pejorative comments – Whether judge decided summary judgment application and preliminary applications other than on merits – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied.

COURTS AND JUDGES – Natural justice – Where applicant filed summons to reopen summary judgment application or for dismissal of summary judgment application as abuse of process – Where judge dismissed summons without adjudication – Where judge refused application to cross-examine legal practitioners of respondent at hearing of summary judgment application – Whether denial of natural justice.

APPEALS – Findings of fact – Whether judge made finding of fact with respect to retention of solicitors’ file – Whether judge erred in finding that party gave no notice to opponent of intention to make preliminary applications at hearing of summary judgment application – Whether error inconsequential.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J G Levine	Templeton Fox Rothschild
For the Respondent	Mr P H Solomon QC with Mr E J Batrouney	Obst Legal

WHELAN JA
SANTAMARIA JA
T FORREST AJA:

Introduction

The applicant (‘Bodycorp’) had entered into franchise agreements with approximately 16 franchisee panel beater shops. In 1997, it entered into an agreement with an insurer under which its franchisees would be granted ‘Recommended Repairer’ status. Bodycorp consulted solicitors with a view to the preparation of appropriate agreements, including the drafting of a restraint of trade clause such that, if any of its franchisees terminated a franchise agreement, the insurer would not trade with that franchisee for six months. Later, a number of franchisees terminated…

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.

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Details

Case: [2018] VSCA 17
Decision Date: 8 February 2018

CaseChat Overview and Summary

In the matter of Bodycorp Repairers Pty Ltd v Holding Redlich, the Court of Appeal examined a dispute concerning the validity of a negligence claim brought by the applicant against the respondent. The case originated in the Supreme Court, where the primary judge dismissed the claim on the basis that it was statute-barred. The applicant sought to appeal the dismissal, arguing that the primary judge had erred in both the assessment of the limitation defence and the determination of when the cause of action accrued.

The legal issues in the case centred on the interpretation of the Limitation of Actions Act 1958, specifically section 5, and the application of the Civil Procedure Act 2010. The applicant argued that the primary judge had misapplied the relevant statutory provisions and judicial precedents, including Hawkins v Clayton, Wardley Australia Ltd v State of Western Australia, Murphy v Overton Investments Pty Ltd, HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd, and Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd. The appeal also questioned whether the primary judge had acted with reasonable apprehension of bias and whether the natural justice principles were properly observed during the proceedings.

The Court of Appeal found that the primary judge had indeed erred in his assessment of the limitation defence and the timing of the accrual of the cause of action. The Court held that the primary judge had misapplied the law in determining that the applicant's claim was statute-barred. The Court also determined that there was no reasonable apprehension of bias or denial of natural justice, thus upholding the primary judge's decision on those grounds. Consequently, the appeal was allowed, and the case was remitted to the Supreme Court for further proceedings.

Orders