Eversden Pty Ltd v Miladi - [2015] QCA 126

SUPREME COURT OF QUEENSLAND

CITATION:

Eversden Pty Ltd v Miladi [2015] QCA 126

PARTIES:

EVERSDEN PTY LTD
ACN 105 484 240
(appellant)
v
ARMIN MILADI
(respondent)

FILE NO/S:

Appeal No 8398 of 2014
DC No 3991 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 8 August 2014

DELIVERED ON:

10 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2015

JUDGES:

Holmes and Philippides JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   The orders made by the learned primary judge on 8 August 2014 be set aside and in lieu thereof it is ordered that:

(a)     the further amended application filed 29 July 2014 be dismissed;

(b)     the respondent pay the appellant’s costs of that application.

3.   The respondent pay the appellant’s costs of the appeal.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – AMENDMENT – where respondent issued proceeding against Aussie Country Leisure Entertainment Pty Ltd (Aussie Country) for damages for personal injuries allegedly sustained when assisting another person who was engaged in target shooting at a resort at Canungra (the premises) – where Aussie Country was alleged to be the owner, operator and occupier of the premises – where the respondent obtained default judgment for damages to be assessed against Aussie Country – where Aussie Country was subsequently deregistered – where the appellant was in fact the owner of the premises at the material time – where the respondent obtained orders that the default judgment be set aside pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), that the appellant be added as a defendant under r 69(1)(b)(i) and r 69(2)(f) UCPR and that leave be given to make an amendment to the statement of claim, after the expiry of the limitation period, under r376(4) UCPR – whether the primary judge erred in the exercise of the discretions under r 290, r 69(1)(b)(i) and r 69(2)(f), and r376(4) UCPR

Corporations Act 2001 (Cth)
Limitation of Actions Act 1974 (Qld), s 11
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(b)(i), r 69(1)(b)(ii), r69(2)(f), r 290, r 376(4)

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Macquarie Bank Ltd v Fu-Shun Lin [2002] 2 Qd R 188; [2001] QSC 341, cited
Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65; [1995] QCA 53, cited
Romeo v Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5, cited
Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, cited
Yi v The Service Arena Pty Ltd [2001] NSWCA 400, cited

COUNSEL:

C Jennings for the appellant
K C Fleming QC, with A J See, for the respondent

SOLICITORS:

Nyst Legal for…

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.

Continue reading Eversden Pty Ltd v Miladi

Details

AGLC: Eversden Pty Ltd v Miladi [2015] QCA 126
Case: [2015] QCA 126
Decision Date: 10 July 2015

CaseChat Overview and Summary

Eversden Pty Ltd, the appellant, brought an appeal against the decision of the primary judge who ordered the appellant to be added as a party to a proceeding brought by Miladi, the respondent. The respondent had issued proceedings against Aussie Country Leisure Entertainment Pty Ltd, for damages for personal injuries allegedly sustained when assisting another person who was engaged in target shooting at a resort at Canungra. The resort was owned by Eversden Pty Ltd at the time of the incident, but Aussie Country Leisure Entertainment Pty Ltd was alleged to be the owner, operator, and occupier of the premises. The respondent obtained a default judgment for damages to be assessed against Aussie Country Leisure Entertainment Pty Ltd, which was subsequently deregistered. The respondent sought orders to set aside the default judgment and add the appellant as a defendant, along with permission to amend the statement of claim after the limitation period had expired.

The legal issues before the court were whether the primary judge erred in exercising the discretions under r 290, r 69(1)(b)(i) and r 69(2)(f), and r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) in allowing the respondent to amend the proceedings and add the appellant as a party after the limitation period had expired. The court had to consider the discretion of the primary judge in setting aside the default judgment and whether the respondent had a sufficient basis for the amendment. The court also had to consider whether the respondent had a good reason for the delay in amending the statement of claim and whether the appellant would be prejudiced by the amendment.

The court found that the primary judge erred in exercising the discretions under the relevant rules. The court found that the respondent did not have a sufficient basis for setting aside the default judgment or for amending the statement of claim. The court found that the respondent had not shown that the appellant had actual or constructive notice of the proceedings, or that the appellant had an arguable case for relief against it. The court found that the appellant would be prejudiced by the amendment, as it would be deprived of the benefit of the default judgment against Aussie Country Leisure Entertainment Pty Ltd. The court found that the delay in amending the statement of claim was not excusable, and that the respondent had not shown any special circumstances that would warrant the amendment. The court allowed the appeal and set aside the orders made by the primary judge. The court ordered that the further amended application be dismissed and that the respondent pay the appellant’s costs of the application and the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the learned primary judge on 8 August 2014 be set aside and in lieu thereof it is ordered that:

(a) the further amended application filed 29 July 2014 be dismissed;

(b) the respondent pay the appellant’s costs of that application.

3. The respondent pay the appellant’s costs of the appeal.

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:	Eversden Pty Ltd v Miladi [2015] QCA 126
PARTIES:	EVERSDEN PTY LTD ACN 105 484 240 (appellant) v ARMIN MILADI (respondent)
FILE NO/S:	Appeal No 8398 of 2014 DC No 3991 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – Unreported, 8 August 2014
DELIVERED ON:	10 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2015
JUDGES:	Holmes and Philippides JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed. 2. The orders made by the learned primary judge on 8 August 2014 be set aside and in lieu thereof it is ordered that: (a) the further amended application filed 29 July 2014 be dismissed; (b) the respondent pay the appellant’s costs of that application. 3. The respondent pay the appellant’s costs of the appeal.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – AMENDMENT – where respondent issued proceeding against Aussie Country Leisure Entertainment Pty Ltd (Aussie Country) for damages for personal injuries allegedly sustained when assisting another person who was engaged in target shooting at a resort at Canungra (the premises) – where Aussie Country was alleged to be the owner, operator and occupier of the premises – where the respondent obtained default judgment for damages to be assessed against Aussie Country – where Aussie Country was subsequently deregistered – where the appellant was in fact the owner of the premises at the material time – where the respondent obtained orders that the default judgment be set aside pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), that the appellant be added as a defendant under r 69(1)(b)(i) and r 69(2)(f) UCPR and that leave be given to make an amendment to the statement of claim, after the expiry of the limitation period, under r376(4) UCPR – whether the primary judge erred in the exercise of the discretions under r 290, r 69(1)(b)(i) and r 69(2)(f), and r376(4) UCPR Corporations Act 2001 (Cth) Limitation of Actions Act 1974 (Qld), s 11 Personal Injuries Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(b)(i), r 69(1)(b)(ii), r69(2)(f), r 290, r 376(4) House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Macquarie Bank Ltd v Fu-Shun Lin [2002] 2 Qd R 188; [2001] QSC 341, cited Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65; [1995] QCA 53, cited Romeo v Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5, cited Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, cited Yi v The Service Arena Pty Ltd [2001] NSWCA 400, cited
COUNSEL:	C Jennings for the appellant K C Fleming QC, with A J See, for the respondent
SOLICITORS:	Nyst Legal for…