Clift v. Timms

[1996] QCA 421

[1996] QCA 421

COURT OF APPEAL

PINCUS JA
DAVIES JA
MACKENZIE J

Appeal No 1095 of 1996

COLIN DUFF CLIFT  Appellant (Defendant)

v

KELVIN RAY TIMMS  Respondent (Plaintiff)

BRISBANE

DATE 18/10/96

PINCUS JA:  In this matter an issue has arisen with respect to an affidavit sought to be read by counsel for the appellant.

The affidavit relates to a matter which was dealt with by the Judge below at page 453 of the record.

Having given judgment in favour of the plaintiff, His Honour was confronted by an application for interest made by counsel for the successful plaintiff.  There was some brief discussion about that application and His Honour made an order for interest from writ to Judgment, without any opposition.

The application is to adduce evidence in support of Ground of Appeal, Ground 3, which challenges the award of interest as having been excessive.

It is common ground that no attempt was made to do this below.  Had there been an issue to be raised with respect to the basis upon which the plaintiff's counsel asked for interest, it should have been done there.

Counsel for the respondent has urged upon us the view that the affidavit sought to be read does not comply with the usual test with respect to adducing fresh evidence, I agree with that contention and I would, for myself, be inclined to refuse the application to adduce fresh evidence.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.

PINCUS JA:  The application is refused.