Crystal Dawn Pty Ltd v Redruth Pty Ltd - [1998] QCA 373

IN THE COURT OF APPEAL [1998] QCA 373
SUPREME COURT OF QUEENSLAND

Appeal No. 9868 of 1998

Brisbane
[Crystal Dawn P/L & Anor v. Redruth P/L]
BETWEEN:
CRYSTAL DAWN PTY LTD (ACN 080 009 043)

(First Defendant) First Applicant

AND:
JOHN DEREK TAYLOR

(Second Defendant) Second Applicant

AND:

REDRUTH PTY LTD (ACN 008 455 918)

(Plaintiff) Respondent

Pincus J.A. Williams J. Muir J.

Judgment delivered 17 November 1998
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
PARAGRAPH 2 OF THE ORDER OF ATKINSON J MADE ON 22 SEPTEMBER 1998 STAYED. TIME FOR FILING AND SERVICE OF A NOTICE OF APPEAL EXTENDED TO 23 OCTOBER 1998. COSTS OF AND INCIDENTAL TO THE NOTICE OF MOTION TO BE COSTS IN THE APPEAL.

CATCHWORDS:

PROCEDURE - application for summary judgment - extension of time for filing of notice of appeal - whether a “triable issue” shown - appropriateness of conditions attaching to leave to defend - duty of judge to give reasons.

Counsel:

Mr P.J. Dunning for the applicants Mr T.W. Quinn for the respondent
Solicitors: Hopgood & Ganim as town agents for Primrose Couper Cronin Rudkin
for the applicants
Hunt & Hunt for the respondent
Hearing Date: 4 November 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 9868 of 1998

Brisbane

Before

Pincus J.A. Williams J. Muir J.
[Crystal Dawn P/L & Anor. v. Redruth P/L]
BETWEEN:
CRYSTAL DAWN PTY LTD
ACN 080 009 043

(First Defendant) First Applicant

AND:
JOHN DEREK TAYLOR

(Second Defendant) Second Applicant

AND:
REDRUTH PTY LTD
ACN 008 455 918

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 November 1998

I have read the reasons of Muir J. and am in general agreement with them. The
circumstances are such as to throw doubt upon the second applicant’s assertion that he was misled;
on the other hand, it is hard to understand why representations were made on behalf of the
respondent vendor by signs on the site, by the brochure exhibited to Mr Meyers’ affidavit and in
the contract itself, to the effect that the land in question was 3462 sq. metres in area - which seems
plainly enough to have been a substantial overstatement. Then I note that Mr Bourke, a real estate
agent who was acting for the respondent, has sworn that he had no knowledge that the dimensions
advertised were incorrect. But it is unnecessary to attempt to reach, at this stage, any final
conclusion as to what follows from the fact that the area was, it appears, repeatedly misrepresented;
it will not even be necessary to do so in the judgment on the appeal since what is in issue is an order
on an application for summary judgment.
I agree that the orders proposed by Muir J. should be made.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 9868 of 1998

Brisbane

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: [1998] QCA 373
Decision Date: 17/11/1998

CaseChat Overview and Summary

Crystal Dawn Pty Ltd filed an application for summary judgment against Redruth Pty Ltd, which was subsequently granted by the court. Redruth sought an extension of time to file a notice of appeal against the summary judgment, which was denied by the court. Redruth appealed against the decision denying the extension of time. The appeal concerned whether a triable issue was shown, the appropriateness of conditions attaching to leave to defend, and the duty of the judge to give reasons.

The court considered whether Redruth had demonstrated a triable issue, and whether the extension of time should be granted in light of the triable issue. The court found that Redruth had not shown a triable issue, and that there were no exceptional circumstances warranting an extension of time. The court also considered the appropriateness of attaching conditions to leave to defend, and whether the judge had a duty to give reasons. The court held that attaching conditions to leave to defend was appropriate, and that the judge had a duty to give reasons for their decision.

In conclusion, the appeal was dismissed. The court found that Redruth had not demonstrated a triable issue, and that the extension of time should not be granted. The court also found that attaching conditions to leave to defend was appropriate, and that the judge had a duty to give reasons for their decision. The court did not make any further orders.

Orders