Goldsmith v AMP Life Ltd

Case [2021] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

Goldsmith & Anor v AMP Life Limited [2021] QCA 20

PARTIES:

ANDREW DAVID GOLDSMITH
(first applicant)
JANNE ELIZABETH TIPPETT
(second applicant)
v
AMP LIFE LIMITED
ACN 079 300 379
(respondent)

FILE NO/S:

Appeal No 7791 of 2020
DC No 419 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane – [2020] QDC 140 (Porter QC DCJ)

DELIVERED ON:

Date of Orders: 11 November 2020
Date of Publication of Reasons: 12 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2020

JUDGES:

Sofronoff P and Morrison JA and Henry J

ORDERS:

Orders delivered: 11 November 2020

1.   The application for leave to appeal is refused.

2.   The applicants are to pay the respondent’s costs of the application on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where from 11 October 2004 Gold Tip (News) Pty Ltd operated a newsagency business in premises that it leased from the respondent at a shopping centre – where the applicants were the owners and managers of Gold Tip and operated the business – where commencing in June 2008, the respondent undertook major renovations to the shopping centre, including an expansion of it – where the renovations took some two years to complete – where during the course of the renovations, Gold Tip moved its business from the original premises to new premises in the newly constructed mall that was part of the centre – where in April 2012 Gold Tip was placed into liquidation – where the applicants took an assignment of Gold Tip’s right to bring proceedings against the respondent – where prior to the commencement of the renovations, Gold Tip and the respondent commenced negotiations for a new lease, new shop, to accommodate the business in a new location but still within the expanded centre – where the second lease commenced on 4 February 2010 when the business commenced operating from the new shop – where the business did not succeed, and Gold Tip was wound up in insolvency on 30 March 2012 – where the applicants alleged that various actions of the respondent in the course of the renovation works gave rise to a right to compensation on the part of Gold Tip for losses caused by those actions – where the right to compensation was said to arise under s 43(1) of the Retail Shop Leases Act 1994 (Qld) – where the respondent denied any entitlement to compensation under either lease and contended that any claim under the first lease was statute barred – where it also raised a set-off and counterclaim for unpaid rent due by Gold Tip under the second lease – where the learned trial judge found that reasonable compensation payable under the first lease was the subject of an equitable set-off for the unpaid rent due under the second lease – where the…

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AGLC
Goldsmith v AMP Life Ltd [2021] QCA 20
Case
[2021] QCA 20
Decision Date

CaseChat Overview and Summary

The applicants, who were the owners and managers of Gold Tip (News) Pty Ltd, sought leave to appeal against the decision of the District Court of Queensland, which found that AMP Life Ltd could set off the amount of unpaid rent due under the second lease against any reasonable compensation payable under the first lease. The applicants argued that the trial judge erred in his application of the principles of set-off and in his handling of the issue of extinguishment of debt following the deregistration of Gold Tip. The applicants also contended that the trial judge erred in his assessment of the impact of the respondent's renovations on the business and in his determination that the claim was statute barred.

The legal issues before the court were whether the trial judge erred in applying the principles of set-off between the two leases, whether the trial judge erred in concluding that the debt was not extinguished following the deregistration of Gold Tip, and whether the trial judge erred in his assessment of the impact of the renovations on the business and in his determination that the claim was statute barred. The court found that none of the grounds for appeal had sufficient merit to warrant the grant of leave to appeal. The court held that the trial judge did not err in his application of the principles of set-off, that the issue of extinguishment of debt was not properly raised and was therefore not properly before the court, and that the trial judge did not err in his assessment of the impact of the renovations on the business or in his determination that the claim was statute barred.

The court concluded that none of the proposed grounds for appeal had sufficient merit to warrant the grant of leave to appeal to the Court. The application for leave to appeal was refused, and the applicants were ordered to pay the respondent's costs of the application on the standard basis. The court found that there was no reasonable argument that there was an error to be corrected, and that it was not necessary to correct a substantial injustice to the applicants. The court held that the suggested claims under the first lease were statute barred, and that the trial judge's conclusions on the issues of set-off, extinguishment of debt, and the impact of the renovations on the business were correct. The orders of the court were that the application for leave to appeal be refused, and that the applicants pay the respondent's costs of the application on the standard basis.

Orders

Orders of the court

Orders delivered: 11 November 2020

1. The application for leave to appeal is refused.

2. The applicants are to pay the respondent’s costs of the application on the standard basis.

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

The final contention is that the learned trial judge did not properly consider the character and objectives of the Retail Shop Leases Act.[50] This proposed ground has no merit in terms of an appeal to this Court. So far as the reasons below reveal, the character and objectives of the Retail Shop Leases Act were not in dispute, nor was there any serious dispute at all about the meaning of s 43 of that Act. The focus of the trial was on proof of loss connected with the disruption caused by the respondent’s renovations to the shopping centre. None of the matters raised in this contention cast sufficient doubt about the learned trial judge’s approach to that issue. Insofar as this contention draws in the question of stabilisation, that advances the matter no further.[50]Applicants’ outline, paras 61-65.Conclusion and disposition of the application For the reasons that I have outlined above none of the proposed grounds for appeal have sufficient merit to warrant the grant of leave to appeal to this Court. It is not necessary to correct a substantial injustice to the applicant and there is no reasonable argument that there is an error to be corrected. That is particularly so given that the suggested claims under the first lease are statute barred. For the reasons above I joined in the following orders made on 11 November 2020:1.The application for leave to appeal is refused.2.The applicants are to pay the respondent’s costs of the application on the standard basis. HENRY J: I have read the reasons of Morrison JA and agree with those reasons and the orders his Honour proposes.

Ratio Decidendi

Legal Principle Established

In my view, it cannot be shown that the learned trial judge erred in that analysis. This proposed ground of appeal fails.Deregistration of Gold Tip – extinguishment of debt This proposed ground of appeal relates to what was called the “extinguishment issue” in the reasons below.[15] The issue arose because in the final written submissions the applicants argued that the dissolution of Gold Tip following the completion of its winding up resulted in the respondent’s debt being extinguished, so that it could no longer be raised as a defence to the claims for compensation in respect of the lease. Having expressed some reservations about the point the learned trial judge disposed of it in this way:[16]“[251] The point was not raised in the pleadings and was only raised in final written submissions. Ms Schneider submitted it had to be pleaded and that if it had been raised in the pleadings, AMP could have applied to have Gold Tip re-registered if necessary. For this reason, it was my understanding that Mr Ferret (sic) ultimately did not press the argument. If I have misunderstood, I find that Ms Schneider’s argument is correct and that the matter cannot now be raised.”[15]Reasons below at [250]-[251].[16]Reasons below at [251]; internal citation omitted. I will return shortly to the reference by the learned trial judge as to Mr Ferrett’s not pressing the argument.[17][17]His Honour had referred to a passage in a transcript at T5-87 lines 1-13.The pleadings The applicant’s pleading referred to the fact that the applicants were the assignees of Gold Tip’s rights to all causes of action for recovery of damages.[18] It also pleaded that Gold Tip went into liquidation.[19][18]Sixth further amended statement of claim, para 1(a)(iv) and para 21; AB 76 and 85.[19]Para 19, AB 84. In the respondent’s pleading the assignment of Gold Tip’s rights to the applicants was admitted and the respondents went on to plead that Gold Tip was deregistered on 22 November 2013.[20] The same pleading set up the counterclaim for unpaid rent under the second lease, in the sum of about $77,000.[20]Fourth amended defence and counterclaim, para 3(a)(vii) and para 4(e); AB 91 and 93. Thus as the pleadings stood at the trial, the issue of whether deregistration resulted in the extinguishment of the respondent’s debt was not raised. It was initially contended by the applicants that they were not required to plead the point,[21] but eventually it was accepted that the point should have been pleaded.[22][21]Applicants’ outline, para 27.[22]Outline in Reply, para 20. That being the case, I can turn to what occurred at the trial. When the point arose objection was taken on behalf of the respondent, which contended that if the point had been pleaded, and the applicants then put on notice that the point was to be raised, the respondent could have answered the contention by applying for the reinstatement of Gold Tip.[23] The effect of reinstatement would have been that Gold Tip continued in existence,[24] albeit under the control of a liquidator. The respondent contended that it was too late to apply by the time the applicants sought to raise the contention for the first time in written submissions.[23]In this regard reference was made to s 601AH(2) of the Corporations Act 2001 (Cth).[24]See s 601AH(5) of the Corporations Act.