Hutchinson v Equititour Pty Ltd - [2010] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION:

Hutchinson & Anor v Equititour Pty Ltd & Ors [2010] 104

PARTIES:

ANTHONY BRUCE HUTCHINSON &
ALISON PATRICIA HUTCHINSON
(plaintiffs/appellants)
v
EQUITITOUR PTY LTD ACN 069 116 409
(first defendant/first respondent)
PHILIP KEITH SULLIVAN
(second defendant/second respondent)
CARLSON HOTELS ASIA PACIFIC PTY LIMITED ACN 000 708 332
(third defendant/third respondent)
JAMES DODD
(fourth defendant/fourth respondent)

FILE NO/S:

Appeal No 10524 of 2009
DC No 2124 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2010

JUDGES:

Muir and Chesterman JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed with costs.

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – SIMPLE CONTRACTS – OTHER MATTERS – where the respondents made applications for summary judgment on the ground that the appellants’ claims were statute barred – where the appellants contended that the loss was not ascertained or ascertainable until after the limitation date – whether appellants’ causes of action had accrued prior to the limitation date

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – FRAUD AND DECEIT – where the appellants contended that the contract in question contained a contingency, which might or might not come to pass – where the appellants contended that the contingency was hidden by the conduct of the respondents – where the appellants submitted that the behaviour of the respondents in hiding the contingency constituted fraud – where the contingency did come to pass – where the appellants contended that the fraud was not discoverable until after the limitation period – whether s 38 of the Limitation of Actions Act 1974 (Qld) defeated the respondents’ limitation defence

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the appellants bore the onus of proving a critical issue – where the appellants adduced no evidence to discharge the onus – where evidence indicated that the critical issue should be determined adversely to the appellants – whether summary judgment should be refused by reference to the critical issue

Fair Trading Act 1989 (Qld), s 100
Limitation of Actions Act 1974 (Qld), s 10, s 38
Trade Practices Act 1974 (Cth), s 82
Uniform Civil Procedure Rules 1999 (Qld), r 293

Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, applied
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, considered
Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358; [2008] VSCA 26, distinguished
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, applied
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640;

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: [2010] QCA 104
Decision Date: 7 May 2010

CaseChat Overview and Summary

Hutchinson and others, as appellants, sought to challenge the dismissal of their claims against Equititour Pty Ltd, the respondent, in the Supreme Court of Queensland. The appellants' claims were dismissed on the basis that they were statute-barred, as the appellants had failed to bring their action within the required limitation period. The appellants contended that their loss was not ascertainable until after the limitation period had expired. Additionally, they argued that the limitation period should be extended due to alleged fraudulent conduct by the respondent, which concealed a contingency that later came to pass. The central legal issues were whether the appellants' causes of action accrued before the limitation period began, and if the alleged fraud could justify extending the limitation period.

The court examined the accrual of the cause of action and determined that the appellants' claims were statute-barred because the causes of action accrued prior to the limitation period. The court found that the appellants had not provided sufficient evidence to support their contention that the loss was not ascertainable until after the limitation period had expired. Furthermore, the court held that the appellants' claims for extending the limitation period due to alleged fraud were not substantiated, as there was no evidence that the fraud was undiscoverable until after the limitation period. The court also noted that the appellants bore the onus of proving the critical issue, which they failed to discharge. Consequently, the court ruled that summary judgment was appropriate in favour of the respondent.

In summary, the court dismissed the appeal and ordered the appellants to pay the respondent's costs. The court found that the appellants' claims were indeed statute-barred, as the causes of action had accrued before the limitation period, and the appellants failed to provide sufficient evidence to support their claims of undiscoverable fraud. The court also determined that the appellants did not meet their burden of proving the critical issue, leading to the dismissal of their appeal with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

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:	Hutchinson & Anor v Equititour Pty Ltd & Ors [2010] 104
PARTIES:	ANTHONY BRUCE HUTCHINSON & ALISON PATRICIA HUTCHINSON (plaintiffs/appellants) v EQUITITOUR PTY LTD ACN 069 116 409 (first defendant/first respondent) PHILIP KEITH SULLIVAN (second defendant/second respondent) CARLSON HOTELS ASIA PACIFIC PTY LIMITED ACN 000 708 332 (third defendant/third respondent) JAMES DODD (fourth defendant/fourth respondent)
FILE NO/S:	Appeal No 10524 of 2009 DC No 2124 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2010
JUDGES:	Muir and Chesterman JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed with costs.
CATCHWORDS:	LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – SIMPLE CONTRACTS – OTHER MATTERS – where the respondents made applications for summary judgment on the ground that the appellants’ claims were statute barred – where the appellants contended that the loss was not ascertained or ascertainable until after the limitation date – whether appellants’ causes of action had accrued prior to the limitation date LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – FRAUD AND DECEIT – where the appellants contended that the contract in question contained a contingency, which might or might not come to pass – where the appellants contended that the contingency was hidden by the conduct of the respondents – where the appellants submitted that the behaviour of the respondents in hiding the contingency constituted fraud – where the contingency did come to pass – where the appellants contended that the fraud was not discoverable until after the limitation period – whether s 38 of the Limitation of Actions Act 1974 (Qld) defeated the respondents’ limitation defence PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the appellants bore the onus of proving a critical issue – where the appellants adduced no evidence to discharge the onus – where evidence indicated that the critical issue should be determined adversely to the appellants – whether summary judgment should be refused by reference to the critical issue Fair Trading Act 1989 (Qld), s 100 Limitation of Actions Act 1974 (Qld), s 10, s 38 Trade Practices Act 1974 (Cth), s 82 Uniform Civil Procedure Rules 1999 (Qld), r 293 Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, applied Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, considered Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358; [2008] VSCA 26, distinguished Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, applied HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640;