Grundy, Arthur Henry v Lewis, John Bertram - [1996] FCA 100

CATCHWORDS

PRACTICE AND PROCEDURE - Leave to appeal - proposed joinder and cross-claims - whether judgment under consideration attended with sufficient doubt - whether substantial injustice if leave refused - leave refused.

JOINDER OF PARTIES - Proposed joinder of State of Queensland - claim for damages by second and third respondents - no pleaded reliance upon alleged advice in circumstances where such reliance is said to give rise to liability on the issues - proximity - no cause of action pleaded against State of Queensland giving rise to a duty of care.

CONTRIBUTION AND INDEMNITY - Proposed claim for contribution under s5(c) Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Qld) - foreseeable loss and damage caused by alleged tortious conduct of the first, second and third respondents different from that caused by alleged tortious conduct of proposed cross-claimants - loss and damage additional - occasioned independently of conduct of first, second and third respondents.

Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Qld) s5(c)

Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527 - Appl
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 - Appl
Jarrett v Seymour (1933) 46 FCR 557 - Appl
Gardiner v Henderson & Lahey [1988] 1 QdR 125 - Distg
British Westinghouse Electric and Manufacturing Company Limited v Underground Electric Railways Company of London, Limited [1912] AC 673 - Appl
Makhoul v Barnes (Unreported, Federal Court of Australia (FC) Hill, Cooper and Branson JJ, 24 November 1995) - Refd

Arthur Henry Grundy and Rita Nell Grundy v John Bertram Lewis, Headship Pty Ltd, Chamberg Pty Ltd and Graham Arthur Schmidt and Peter Thomas Maker
No. QG168 of 1993
Cooper J, Brisbane, 29 February 1996

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No QG168 of 1993

BETWEEN:

ARTHUR HENRY GRUNDY and
RITA NELL GRUNDY

Applicant

AND: JOHN BERTRAM LEWIS

First Respondent

AND: HEADSHIP PTY LTD
ACN 010 645 708

Second Respondent

AND: CHAMBERG PTY LTD
ACN 010 831 615

Third Respondent

AND: GRAHAM ARTHUR SCHMIDT and
PETER THOMAS MAKER

Fourth Respondents

JUDGE MAKING ORDER:           Cooper J
WHERE MADE:  Brisbane
DATE OF ORDER:  29 February 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The notice of motion filed on 29 November 1995 by the first, second and third respondents be dismissed.

The first, second and third respondents pay the costs of each of the respondents to the notice of motion of and incidental to the notice of motion, including reserved costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No QG168 of 1993

BETWEEN:

ARTHUR HENRY GRUNDY and
RITA NELL GRUNDY

Applicant

AND: JOHN BERTRAM…

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: [1996] FCA 100
Decision Date: 29 Feb 1996

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Arthur Henry Grundy and Rita Nell Grundy v John Bertram Lewis, Headship Pty Ltd, Chamberg Pty Ltd, Graham Arthur Schmidt, and Peter Thomas Maker concerns an application for leave to appeal against a refusal to order the joinder of certain parties to a proposed cross-claim by the first, second, and third respondents to the original action. The underlying dispute arises from a sale of a piggery business and land, where the Grundys alleged fraudulent or negligent representations by the respondents, leading to loss and damage.

The legal issues before the court were whether the judgment under consideration was attended with sufficient doubt to warrant reconsideration by a Full Court and whether substantial injustice would result if leave to appeal were refused. The first, second, and third respondents argued that the decision to deny the joinder of solicitors and the State of Queensland as cross-respondents was erroneous. They contended that there was an overlap of the damage caused by the alleged tortious conduct of the respondents and the solicitors, and that the refusal to join the cross-respondents and allow the question of contribution to be determined at trial was prejudicial.

Cooper J found that the decision of Kiefel J was not attended with sufficient doubt. The foreseeable damage caused by the alleged deceit and negligence of the respondents was different from the foreseeable damage caused by the later negligent advice as to recovery of the debt and enforcement of the mortgage against the property of the mortgagor. Additionally, the respondents had not pleaded any cause of action against the State of Queensland that would give rise to a duty of care, breach of which would cause loss and damage to the second respondent.

Consequently, the first, second, and third respondents did not satisfy the requirements for a grant of leave to appeal from the orders of Kiefel J. The court dismissed the notice of motion filed by the respondents and ordered that the first, second, and third respondents pay the costs of the respondents to the notice of motion of and incidental to the notice of motion, including reserved costs, to be taxed if not agreed.

Orders