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 2021DIVISION:
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
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- Case
- [2023] QCA 259
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Full text does not contain this section.