Brookfield v Real Estate Now Pty Ltd - [2023] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

Brookfield v Real Estate Now Pty Ltd & Anor [2023] QCA 259

PARTIES:

IAN WALTER BROOKFIELD
(appellant)
v
REAL ESTATE NOW PTY LTD
ACN 153 307 432
(first respondent)
MARK WILLIAM MERGARD
(second respondent)

FILE NO/S:

Appeal No 6907 of 2023
DC No 868 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2023] QDC 86 (Burnett DCJ)

DELIVERED ON:

15 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2023

JUDGES:

Flanagan JA and Buss AJA and Kelly J

ORDER:

The appeal be dismissed.

CATCHWORDS:

ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – APPLICATION OF ISSUE ESTOPPEL TO WHAT MATTERS – MATTERS NOT DIRECTLY ADJUDICATED ON – where the appellant claimed damages for breach of contract against the respondents for non-payment of moneys due under a rent roll sale agreement – where the learned trial judge dismissed the appellant’s claim – where the rent roll sale was found to have been effected by a different agreement – where there was a history of disputation between the parties – where the appellant submits that an issue estoppel in relation to the indebtedness of the respondents arose from determinations made by various judicial officers in earlier proceedings – where the issue of the respondent’s indebtedness has not been finally determined on the merits by a judicial tribunal – whether an issue estoppel arose

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – where the appellant alleges both apprehended and actual bias on the part of the trial judge – where the allegation of apprehended bias concerns the manner in which the trial judge conducted the trial and dealt with the appellant – where the allegation of actual bias involves a complaint of pre-judgment in relation to the trial judge’s alleged failure to adhere to the doctrine of issue estoppel – whether a fair-minded lay observer could reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions arising in the trial – whether the trial judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented

Uniform Civil Procedure Rules 1999 (Qld), r 142, r 281

Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59, considered
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23, considered
Brookfield v Real Estate Now Pty Ltd & Anor [2023] QDC 86, related
Brookfield v RealEstate Now Pty Ltd and Another [2021] QDC 95, considered
Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641; [2019] FCA 993, considered
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, cited
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288, considered
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

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: [2023] QCA 259
Decision Date: 15 December 2023

CaseChat Overview and Summary

Brookfield, the appellant, sought damages for breach of contract from Real Estate Now, the respondents, for non-payment of moneys due under a rent roll sale agreement. The learned trial judge dismissed the appellant’s claim, finding that the rent roll sale was actually effected by a different agreement. The history of disputation between the parties was extensive, leading the appellant to argue that an issue estoppel in relation to the respondents' indebtedness arose from determinations made by various judicial officers in earlier proceedings. The appellant also alleged that the trial judge was biased, both apprehended and actual, in handling the trial.

The primary legal issues before the court were whether an issue estoppel had arisen from previous determinations and whether the trial judge was disqualified from presiding over the case due to bias. The court needed to determine if the issue of the respondents' indebtedness had been finally determined on the merits by a judicial tribunal, which would be necessary for an issue estoppel to apply. Additionally, the court had to assess the appellant's claims of bias against the trial judge to see if they were well-founded.

The court found that the previous determinations did not conclusively establish the respondents' indebtedness, and therefore, no issue estoppel could be applied. The court concluded that the trial judge's actions were consistent with ensuring the trial proceeded efficiently and according to law, dismissing the appellant's claims of bias. The court also found that the statements made by the trial judge did not evidence actual or apprehended bias.

The appeal was dismissed, and the decision of the trial judge was upheld. The court found no grounds for the issue estoppel and no evidence of bias in the trial judge's conduct.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

For the reasons that follow, the appeal should be dismissed. Neither the decisions nor any of the other matters referred to by Mr Brookfield are capable of founding an issue estoppel. On a proper reading of the relevant decisions, the issue of the respondent’s indebtedness under the Brookfield Agreement is not one which has been finally determined on the merits by a judicial tribunal. Having regard to this conclusion, the statements made by the trial judge which are said to evidence actual or apprehended bias cannot be understood as anything other than attempts by his Honour to ensure that a trial involving two antagonistic, self-represented litigants proceeded efficiently and according to law.Further background In order to properly consider the issues raised by Mr Brookfield, it is necessary to outline some relevant aspects of the earlier litigation concerning the parties. As already observed, Blueprop purportedly assigned the debt to Mr Brookfield on 31 October 2016. Real Estate Now apparently received notice of that assignment but refused to pay him any money. This led to both a number of unsuccessful attempts by Mr Brookfield to wind up Real Estate Now based on various statutory demands as well as numerous collateral disputes, including Mr Mergard (or his solicitors) reporting Mr Brookfield to the QPS on several occasions.Investigation by the QPS Mr Mergard first complained to the QPS about Mr Brookfield on or around 30 October 2017. Among other things, the complaint alleged stalking by Mr Brookfield. It appears however, that on or around 8 November 2017, the QPS closed their investigation into this complaint on the basis that the issues raised were civil in nature. On or around 25 October 2018, further correspondence was sent to the QPS by Mr Mergard’s solicitors, Mills Oakley. The correspondence was accompanied by additional documents said to evidence wrongdoing by Mr Brookfield. Relevantly, it was alleged that Mr Brookfield had forged Mr Mergard’s signature on the Brookfield Agreement. The QPS subsequently prepared a report detailing the outcome of their investigation into the complaints made against Mr Brookfield. Relevantly, in respect of the forgery allegation, the report records that a review of the documents supplied revealed “[n]o evidence to support the allegation of criminality”.[10] The other allegations were rejected on similar grounds.[10]AB 115. In or around 2019, for reasons that are not immediately clear, the QPS subsequently sought to charge Mr Brookfield with various offences relating to misuse of a carriage service and stalking. The relevant authorities ultimately did not proceed with those charges.Decision of Judge Jarrett In the course of the earlier proceedings, Real Estate Now accrued a number of costs orders against Mr Brookfield. They were assessed and became the subject of a bankruptcy notice which was served on Mr Brookfield. Mr Brookfield did not comply with that notice and, on 7 June 2018, Real Estate Now presented a creditor’s petition for the sequestration of his estate.

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.

CITATION:	Brookfield v Real Estate Now Pty Ltd & Anor [2023] QCA 259
PARTIES:	IAN WALTER BROOKFIELD (appellant) v REAL ESTATE NOW PTY LTD ACN 153 307 432 (first respondent) MARK WILLIAM MERGARD (second respondent)
FILE NO/S:	Appeal No 6907 of 2023 DC No 868 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2023] QDC 86 (Burnett DCJ)
DELIVERED ON:	15 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2023
JUDGES:	Flanagan JA and Buss AJA and Kelly J
ORDER:	The appeal be dismissed.
CATCHWORDS:	ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – APPLICATION OF ISSUE ESTOPPEL TO WHAT MATTERS – MATTERS NOT DIRECTLY ADJUDICATED ON – where the appellant claimed damages for breach of contract against the respondents for non-payment of moneys due under a rent roll sale agreement – where the learned trial judge dismissed the appellant’s claim – where the rent roll sale was found to have been effected by a different agreement – where there was a history of disputation between the parties – where the appellant submits that an issue estoppel in relation to the indebtedness of the respondents arose from determinations made by various judicial officers in earlier proceedings – where the issue of the respondent’s indebtedness has not been finally determined on the merits by a judicial tribunal – whether an issue estoppel arose COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – where the appellant alleges both apprehended and actual bias on the part of the trial judge – where the allegation of apprehended bias concerns the manner in which the trial judge conducted the trial and dealt with the appellant – where the allegation of actual bias involves a complaint of pre-judgment in relation to the trial judge’s alleged failure to adhere to the doctrine of issue estoppel – whether a fair-minded lay observer could reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions arising in the trial – whether the trial judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented Uniform Civil Procedure Rules 1999 (Qld), r 142, r 281 Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59, considered Blair v Curran (1939) 62 CLR 464; [1939] HCA 23, considered Brookfield v Real Estate Now Pty Ltd & Anor [2023] QDC 86, related Brookfield v RealEstate Now Pty Ltd and Another [2021] QDC 95, considered Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641; [2019] FCA 993, considered Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, cited Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288, considered Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29