Breen v Lambert - [1992] QCA 144

IN THE COURT OF APPEAL

[1992] QCA 144

SUPREME COURT OF QUEENSLAND

No. 4547 of 1988.

BETWEEN:

BETH BREEN as administratrix of the
estate of KEVIN PATRICK BREEN

(Plaintiff) Respondent

AND:

ARNOLD LAMBERT and
RICHARD K C WAN

(Defendants) Appellants

___________________________________________________________________

The President
Mr Justice McPherson
Mr Justice Derrington

___________________________________________________________________

Judgment of the Court delivered on the
fifteenth day of June, 1992.

___________________________________________________________________

APPEAL DISMISSED WITH COSTS

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 4547 of 1988.

Before the Court of Appeal

The President

Mr Justice McPherson

Mr Justice Derrington

BETWEEN:

BETH BREEN as administratrix of the
estate of KEVIN PATRICK BREEN

(Plaintiff) Respondent

AND:

ARNOLD LAMBERT and
RICHARD K C WAN

(Defendants) Appellants

JUDGMENT - THE COURT

Delivered the fifteenth day of June 1992

MINUTE OF ORDER:

Appeal dismissed with costs.

CATCHWORDS
PRACTICE - STAY - Appeal from refusal to grant stay of execution of judgment
ordering specific performance of agreement to transfer shares after appellants
discovered post trial not all shares owned by respondent - whether this discovery

would have been entitled appellants to judgment in their favour.

Counsel:	Gotterson QC, with him Sullivan, for the appellants. D J S Jackson QC for the respondent.
Solicitors:	Carberry’s for the appellants. Corrs Chambers Westgarth for the respondent.

Hearing date:27 May 1992.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 4547 of 1988.

BETWEEN:

BETH BREEN as administratrix of the
estate of KEVIN PATRICK BREEN

(Plaintiff) Respondent

AND:

ARNOLD LAMBERT and
RICHARD K C WAN

(Defendants) Appellants

JUDGMENT - THE COURT

Delivered the fifteenth day of June 1992.

These proceedings arise out of an agreement made on 18 November 1988 for the

sale by Kevin Patrick Breen to Arnold Lambert and Richard Wan of the shares in Hayville

Pty Ltd. That company had for some time been conducting a restaurant known as

"Whittakers" in Queen Street in the city. For various reasons the business proved

unprofitable and Breen decided to sell it. To this end negotiations took place with Lambert

and Wan, and on 18 November they signed a memorandum recording their agreement to

purchase shares in the company.

It is convenient to refer to the memorandum as ex.7, because that is the way it was

identified at the trial of an action (No. 4547 of 1988) brought by Breen as plaintiff against

Lambert and Wan as defendants to enforce the agreement. The action was heard by

Byrne J, who delivered judgment on 9 August 1990 ordering that the contract be

specifically performed and awarding a large sum by way of damages for breach of

contract. Since then the defendants have been making vigorous efforts to prevent the judgment from being enforced. First they appealed against it. Pending that appeal they

applied for a stay of execution of the judgment. It was granted on 11 September 1990 on

terms requiring them to pay the amount of…

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: [1992] QCA 144
Decision Date: 15/06/1992

CaseChat Overview and Summary

The case of Breen v Lambert was heard in the Court of Appeal of the Supreme Court of Queensland. The dispute arose from an agreement for the sale of shares in Hayville Pty Ltd, a company running the restaurant "Whittakers." The plaintiff, Beth Breen, as the administratrix of the estate of her late husband, Kevin Patrick Breen, sought to enforce an agreement for the sale of shares. The defendants, Arnold Lambert and Richard Wan, appealed against a judgment ordering specific performance of the agreement and damages for breach of contract. The defendants argued that they discovered post-trial that not all shares were owned by the plaintiff, which they claimed should have entitled them to judgment in their favour.

The legal issues before the court were whether the defendants' discovery of the additional shareholder after the trial would have entitled them to a judgment in their favour, and if so, whether this justified a stay of execution of the judgment. The court needed to determine if the defendants could demonstrate that the facts, if known at the time, would have led to a different outcome in the original trial. The defendants argued that they would have been able to avoid completing the agreement if they had known about the additional shareholder, Ms. Ledwidge.

The court found that Ms. Ledwidge would have cooperated in transferring her shares if required, and there was no evidence to suggest she would have insisted on being released from the company’s lease guarantee. The court held that the plaintiff would still have been able to transfer all shares in Hayville Pty Ltd, and thus the defendants' argument failed. The court concluded that the defendants did not show that the post-trial discovery would have entitled them to a different judgment, and therefore the appeal was dismissed with costs.

Orders