Hookey v Whitelaw

Case [2021] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

Hookey & Anor v Whitelaw & Ors [2021] QCA 181

PARTIES:

SCOTT GREGORY HOOKEY
(first appellant)
KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST
(second appellant)
v
JOHN BRUCE WHITELAW
(first respondent)
KA ESTATES PTY LTD ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST
(second respondent)
JBW ESTATES PTY LTD ACN 600 602 819 AS TRUSTEE OF JBW FAMILY TRUST
(third respondent)

FILE NO/S:

Appeal No 4832 of 2020
SC No 8477 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 63 (Flanagan J)
Supreme Court at Brisbane – [2020] QSC 147 (Flanagan J)

DELIVERED ON:

27 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29-30 September 2020

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDERS:

1.   Appeal dismissed.

2.   Parties have leave to make written submissions about costs and any appropriate consequential orders, such submissions to be exchanged and lodged with the Court within 14 days of publication of these reasons and not to exceed five pages in length.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the appellants sought a declaration that they and the respondents had entered into a joint venture agreement in relation to the acquisition of land at Hope Island and the development of that land for the purpose of a childcare centre and the operation of a childcare business – where the trial judge found that the first appellant and the first respondent had not reached consensus upon the alleged terms of the joint venture agreement by 1 July 2014 and nor had they intended to be legally bound by any agreement and the claim for that declaration was dismissed – where the appellants seek to construct an oral joint venture agreement from selected passages in the first respondent’s evidence, some of the contemporaneous documents, and some of the evidence about the parties’ post-contractual conduct and statements attributed to the first respondent – where the respondents contend that the appellants should not be permitted to litigate for the first time on appeal a claim that by 1 July 2014 the parties had concluded a binding contract containing only the suggested “key terms” now propounded by the appellants – where the appellants acknowledge that they did not propound such an agreement at trial – where the appellants do not offer any explanation for their failure to do so – where it is evident even upon a cursory comparison between the terms of the agreement litigated at trial and the very broad “key terms” for which the appellants now contend that the appellants’ case on appeal is very different from the case litigated at trial – where the appeal should be restricted to the issues, including as to the nature of the alleged joint venture agreement, which were litigated at…

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AGLC
Hookey v Whitelaw [2021] QCA 181
Case
[2021] QCA 181
Decision Date

CaseChat Overview and Summary

In the case of Hookey v Whitelaw, the appellants sought a declaration that they and the respondents had entered into a joint venture agreement relating to the acquisition and development of land at Hope Island for a childcare centre and business. The claim was dismissed by the trial judge, who found that the parties had not reached consensus on the alleged terms by 1 July 2014 and had no intention to be legally bound by any agreement. The appellants attempted to argue on appeal that a binding contract existed by 1 July 2014 with only certain "key terms," despite not presenting this argument at trial. The respondents argued that the appellants should not be allowed to litigate this new claim for the first time on appeal.

The court considered whether the appeal should be restricted to the issues that were litigated at trial, including the nature of the alleged joint venture agreement. The court determined that the appellants' case on appeal was significantly different from the case presented at trial, as they sought to construct an oral joint venture agreement from selected passages and evidence that was not part of the trial. The court held that the appeal should be limited to the issues that were actually litigated at trial and that the appellants' attempt to introduce new evidence and arguments on appeal was not permissible.

Consequently, the appeal was dismissed, and the parties were granted leave to make written submissions about costs and any appropriate consequential orders. These submissions were to be exchanged and lodged with the court within 14 days of the publication of the reasons, not to exceed five pages in length. The court's decision emphasised the importance of adhering to the issues that were actually litigated at trial and the need for consistency in the presentation of arguments throughout the legal proceedings.

Orders

Orders of the court

1. Appeal dismissed.

2. Parties have leave to make written submissions about costs and any appropriate consequential orders, such submissions to be exchanged and lodged with the Court within 14 days of publication of these reasons and not to exceed five pages in length.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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