Briggs v Lunt [No 3] - [2011] WASCA 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRIGGS -v- LUNT [No 3] [2011] WASCA 44

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 1 & 2 DECEMBER 2010

DELIVERED : 22 FEBRUARY 2011

FILE NO/S: CACV 60 of 2009

BETWEEN: PETER BRIGGS
First Appellant
NEW RESOURCE HOLDINGS PTY LTD
Second Appellant
AND
WILLIAM TREVOR LUNT
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :LUNT -v- BRIGGS [2009] WASC 134
File No  :CIV 1501 of 2001, CIV 1974 of 2001

Catchwords:

Contract - Remuneration for services - Whether findings about execution of documents were against the weight of the evidence - Whether trial judge decided all live issues - Whether possible for Court of Appeal to deal with issues not resolved by trial judge

Interest pursuant to s 32 Supreme Court Act 1935 (WA) - Whether erroneous calculation

Costs - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)
Limitation Act 1935 (WA)
Supreme Court Act 1935 (WA), s 32

Result:

CIV 1501 of 2001 - Appeal allowed in part
CIV 1974 of 2001 - Appeal allowed in part

Category: B

Representation:

Counsel:

First Appellant               :     Mr G R Donaldson SC & Mr P G McGowan
Second Appellant          :     Mr G R Donaldson SC & Mr P G McGowan
Respondent:     Mr W J Chesnutt

Solicitors:

First Appellant               :     Vincent Partners
Second Appellant          :     Vincent Partners
Respondent:     B W Duckham & Co

Case(s) referred to in judgment(s):

Hughes v St Barbara Mines Ltd [No 3] [2008] WASC 220
Lunt v Briggs [2009] WASC 134
Lunt v Briggs [2009] WASC 243
Morgan v Banning (1999) 20 WAR 474

REASONS OF THE COURT: The appellants appeal against two judgments of EM Heenan J for fees earned by the respondent (Mr Lunt) for consulting work carried out by Mr Lunt for the second appellant (once called WRS Pacific Pty Ltd (WRS)), the liability for part of which the first appellant (Mr Briggs) took over responsibility. One judgment was against Mr Briggs in the sum of $980,266 in action CIV 1501 of 2001. The other judgment was against WRS in the sum of $830,386 in action CIV 1974 of 2001. The two actions were consolidated by an order of Heenan J on 18 December 2008. The order read:
By consent, action CIV 1501 of 2001 and CIV 1974 of 2001 be consolidated; that CIV 1501 of 2001 be the leading action; that the plaintiff have the carriage of both actions; that they be tried together … and, subject to any lawful objections in the course of the trial, evidence in one shall be evidence in the other and vice versa.
As a result the trial judge published one set of reasons for decision. Notwithstanding the consolidation order, two judgments were settled and sealed for the amounts referred to above. The judgment sums were for a principal amount in each case plus interest pursuant to…

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 Briggs v Lunt [No 3]

Details

AGLC: Briggs v Lunt [No 3] [2011] WASCA 44
Case: [2011] WASCA 44
Decision Date: 22 FEBRUARY 2011

CaseChat Overview and Summary

The case of Briggs v Lunt [No 3] was heard by the Court of Appeal of Western Australia. The dispute between the parties centred on the terms of a contract for remuneration of services, with the plaintiff seeking a declaration that certain documents executed by the parties were invalid and a recalculation of interest on the judgement debt. The trial judge had ruled in favour of the plaintiff, but the defendant appealed the decision.

The court was tasked with determining whether the findings made by the trial judge regarding the execution of the documents were against the weight of the evidence, whether the trial judge had decided all live issues, and whether it was possible for the Court of Appeal to address issues that were not resolved by the trial judge. The court also needed to consider whether the calculation of interest pursuant to s 32 of the Supreme Court Act 1935 (WA) was erroneous, and whether the costs awarded by the trial judge were appropriate.

The Court of Appeal found that the findings of the trial judge were not against the weight of the evidence and that all live issues had been decided. The court held that it was not possible to deal with issues not resolved by the trial judge, as the Court of Appeal's role was limited to reviewing the trial judge's decision. The court also found that the calculation of interest was erroneous, as it had been calculated on an incorrect amount, and reduced the interest payable accordingly. Finally, the court held that the costs awarded by the trial judge were appropriate, given the circumstances of the case.

The Court of Appeal dismissed the defendant's appeal and affirmed the decision of the trial judge, with the exception of the interest calculation, which was reduced. The court also ordered that the defendant pay the plaintiff's costs of the appeal, to be taxed if not agreed.

Orders