Byrt v Aero Sth Pacific Pty Ltd - [2012] QCA 359

SUPREME COURT OF QUEENSLAND

CITATION:

Byrt v Aero Sth Pacific Pty Ltd [2012] QCA 359

PARTIES:

TERENCE JOHN BYRT
(appellant)
v
AERO STH PACIFIC PTY LTD
ACN 114 467 060
(respondent)

FILE NO/S:

Appeal No 3419 of 2012
SC No 2624 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2012

JUDGES:

Holmes and Fraser JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – REFUSAL OF ADJOURNMENT – where the appellant was sued for amounts outstanding under his guarantee of an aircraft lease and sub-lease entered by a company he controlled – where the appellant applied for an adjournment of the trial on its first day – where the appellant applied to amend his defence and counter-claim – where the appellant had engaged new solicitors and contended that he needed more time to prepare his case in accordance with the proposed amendments – where the appellant did not depose to the reasons for the adjournment or the withdrawal of his previous solicitors, or the substance of the proposed amendments – where allowing the amendments would have required the adjournment of a trial to call a witness not presently available – where the appellant contended that any prejudice could be remedied by a costs order – where the learned trial judge refused the application for an adjournment – whether the decision to refuse the adjournment of the trial and the amendment of the pleadings were proper exercises of the learned judge’s discretion

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – APPLICATION TO LEASES – where the learned trial judge found that the lessee company’s non-payment of rent, receivership and renunciation through the receivers of any interest in the aircraft amounted to repudiation of the lease and sub-lease – where the appellant contended that the respondent had repudiated the lease and sub-lease by taking possession of the aircraft – whether the learned trial judge wrongly distinguished the decision in Shevill v Builders’ Licensing Board – whether the trial judge erred in finding that the lessee company repudiated the lease and sub-lease

DAMAGES – GENERAL PRINCIPLES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – REMOTENESS AND CAUSATION – LIABILITIES INCURRED – where the respondent sold the leased aircraft 18 months after repossessing it – where the learned trial judge found that the respondent had made reasonable efforts to re-lease the aircraft and had mitigated its loss by its sale for parts – where the appellant contended that the sale of the aircraft constituted a break in causation – where the appellant contended that loss…

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: [2012] QCA 359
Decision Date: 18 December 2012

CaseChat Overview and Summary

In the case of Byrt v Aero Sth Pacific Pty Ltd, the appellant, Byrt, appealed against a judgment entered in favour of the respondent, Aero Sth Pacific Pty Ltd, in an action concerning amounts outstanding under a guarantee of an aircraft lease and sub-lease. Byrt, who controlled the company that entered into the lease and sub-lease, sought an adjournment of the trial on its first day to allow for amendments to his defence and counter-claim. The application was made after Byrt had engaged new solicitors and contended that more time was needed to prepare his case in accordance with the proposed amendments. However, Byrt did not provide a deposition outlining the reasons for the adjournment or the withdrawal of his previous solicitors, nor did he provide details of the proposed amendments. The court below refused the adjournment, finding that allowing the amendments would have required the adjournment of the trial to call a witness not presently available. The refusal of the adjournment and the amendment of the pleadings were central to the appeal.

The appeal raised several legal issues, including the proper exercise of the trial judge’s discretion in refusing the adjournment and whether the trial judge had correctly found that the lessee company had repudiated the lease and sub-lease. The court considered whether the trial judge had erred in distinguishing the decision in Shevill v Builders’ Licensing Board and whether the sale of the aircraft by the respondent constituted a break in causation that should have curtailed or discounted the loss of bargain damages. Additionally, the court examined whether the respondent had sufficiently pleaded the failure to meet the return conditions of the sub-lease as a basis for non-payment of rent beyond the termination date.

The court found that the refusal of the adjournment and the amendment of the pleadings were proper exercises of the trial judge’s discretion. The court upheld the trial judge's finding that the lessee company had repudiated the lease and sub-lease through non-payment of rent, receivership, and renunciation through the receivers of any interest in the aircraft. The court held that the trial judge had not erred in distinguishing the Shevill decision and that the sale of the aircraft by the respondent did not constitute a break in causation that would curtail or discount the loss of bargain damages. Lastly, the court found that the respondent had sufficiently pleaded the failure to meet the return conditions of the sub-lease as a basis for non-payment of rent beyond the termination date.

The orders of the court were that the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

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:	Byrt v Aero Sth Pacific Pty Ltd [2012] QCA 359
PARTIES:	TERENCE JOHN BYRT (appellant) v AERO STH PACIFIC PTY LTD ACN 114 467 060 (respondent)
FILE NO/S:	Appeal No 3419 of 2012 SC No 2624 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	21 September 2012
JUDGES:	Holmes and Fraser JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – REFUSAL OF ADJOURNMENT – where the appellant was sued for amounts outstanding under his guarantee of an aircraft lease and sub-lease entered by a company he controlled – where the appellant applied for an adjournment of the trial on its first day – where the appellant applied to amend his defence and counter-claim – where the appellant had engaged new solicitors and contended that he needed more time to prepare his case in accordance with the proposed amendments – where the appellant did not depose to the reasons for the adjournment or the withdrawal of his previous solicitors, or the substance of the proposed amendments – where allowing the amendments would have required the adjournment of a trial to call a witness not presently available – where the appellant contended that any prejudice could be remedied by a costs order – where the learned trial judge refused the application for an adjournment – whether the decision to refuse the adjournment of the trial and the amendment of the pleadings were proper exercises of the learned judge’s discretion CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – APPLICATION TO LEASES – where the learned trial judge found that the lessee company’s non-payment of rent, receivership and renunciation through the receivers of any interest in the aircraft amounted to repudiation of the lease and sub-lease – where the appellant contended that the respondent had repudiated the lease and sub-lease by taking possession of the aircraft – whether the learned trial judge wrongly distinguished the decision in Shevill v Builders’ Licensing Board – whether the trial judge erred in finding that the lessee company repudiated the lease and sub-lease DAMAGES – GENERAL PRINCIPLES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – REMOTENESS AND CAUSATION – LIABILITIES INCURRED – where the respondent sold the leased aircraft 18 months after repossessing it – where the learned trial judge found that the respondent had made reasonable efforts to re-lease the aircraft and had mitigated its loss by its sale for parts – where the appellant contended that the sale of the aircraft constituted a break in causation – where the appellant contended that loss…