Horton v Keeley

Case [2013] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

Horton & Anor  v Keeley & Ors [2013] QCA 161

PARTIES:

ROBERT WILLIAM HORTON & DESLEY MARGARET HORTON
(applicants)
v
WILLIAM IAN KEELEY & LEANNE FAY KEELEY
(first respondents)
MARINE WAREHOUSE PTY LTD
ACN 066 954 112
(second respondent)

FILE NO/S:

Appeal No 10237 of 2012
DC No 3231 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2013

JUDGES:

Gotterson JA and Margaret Wilson and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Leave to adduce fresh evidence refused.1.  

Leave to appeal refused.2.  

Applicants, Robert William Horton and Desley Margaret Horton, to pay the costs of the respondents, Willian Ian Keeley, Leanne Fay Keeley and Marine Warehouse Pty Ltd of the application for leave to appeal and of the appeal on the standard basis.3.  

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where the trial was adjourned at the close of the plaintiff’s case on the third day of a five day trial – where at the close of the plaintiff’s case the trial judge raised with counsel that there was an apparent disjunction between the case as pleaded by, and the evidence led for, the respondents, the plaintiffs in the trial – where both parties agreed that the agreement in question was for the sale of shares and not the sale of shares and the underlying business of the corporation – where the adjournment was applied for and granted in order for the respondents to amend their Statement of Claim to correctly reflect their position – where leave is now sought to adduce fresh documentary evidence, namely the amended statement of claim and a further report both filed in the District Court following the adjournment in the original proceedings – where no special ground for the reception of the documents pursuant to r 766(1)(c) is shown – whether leave should be granted to adduce these two documents now – where the amendment to the statement of claim has not visited any substantial injustice on the applicants – whether leave to appeal against a discretionary decision of a trial judge made during the course of a trial to permit amendments to the statement of claim should be granted

District Court of Queensland Act 1967 (Qld), s 118
Uniform Civil Procedure Rules 1999 (Qld), r 766, r 768

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, applied
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101, applied
Groves v Groves [2011] QSC 411, cited
Hartnett v Hynes [2009] QSC 225, cited
Hockley v Sowden[2000] QCA 9, cited
House v The…

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AGLC
Horton & Anor v Keeley & Ors [2013] QCA 161
Case
[2013] QCA 161
Decision Date

CaseChat Overview and Summary

The appeal was brought by Robert William Horton and Desley Margaret Horton against William Ian Keeley, Leanne Fay Keeley, and Marine Warehouse Pty Ltd. The dispute arose from a trial that was adjourned at the close of the plaintiffs' case on the third day of a five-day trial. The trial judge identified a discrepancy between the case as pleaded by, and the evidence led for, the plaintiffs. Both parties acknowledged that the agreement in question pertained to the sale of shares and not the sale of shares and the underlying business of the corporation. The trial was adjourned to allow the plaintiffs to amend their Statement of Claim to accurately reflect their position. Subsequently, the plaintiffs sought leave to present fresh documentary evidence, specifically the amended Statement of Claim and a further report filed in the District Court following the adjournment of the original proceedings.

The primary legal issue before the court was whether leave should be granted to adduce the new documents, namely the amended Statement of Claim and the additional report, considering that no special ground for the reception of the documents was shown pursuant to r 766(1)(c). The court also needed to determine whether leave to appeal against a discretionary decision of the trial judge made during the course of the trial, which allowed amendments to the Statement of Claim, should be granted. Furthermore, the court examined whether the amendment to the Statement of Claim had caused substantial injustice to the applicants.

The court reasoned that the plaintiffs had not demonstrated a special ground for the reception of the documents. The plaintiffs had not shown that the amendment to the Statement of Claim would have caused substantial injustice. The court held that the trial judge's decision to allow amendments to the Statement of Claim was within the trial judge's discretion and should not be interfered with. The court concluded that leave to adduce fresh evidence should be refused and that leave to appeal should also be refused. The applicants were ordered to pay the respondents' costs of the application for leave to appeal and of the appeal on the standard basis.

Orders

Orders of the court

Leave to adduce fresh evidence refused.1.

Leave to appeal refused.2.

Applicants, Robert William Horton and Desley Margaret Horton, to pay the costs of the respondents, Willian Ian Keeley, Leanne Fay Keeley and Marine Warehouse Pty Ltd of the application for leave to appeal and of the appeal on the standard basis.3.

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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