IVI Pty Ltd v. Baycrown Pty Ltd

[2006] QSC 41

[2006] QSC 041

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

PHILIPPIDES J

No BS9907 of 2002

IVI PTY LTD (ACN 093 587 314)  Plaintiff
AS TRUSTEE FOR THE IVI TRUST         

and

BAYCROWN PTY LTD (ACN 062 665 883)                  Defendant

BRISBANE

..DATE 16/02/2006

JUDGMENT

HER HONOUR:  In this matter of IVI Proprietary Limited and Baycrown Proprietary Limited, I deliver my reasons for judgment as follows.

On 3 December 2004, judgment was delivered after a trial in this action, declaring a contract for the purchase of land between the plaintiff, IVI Proprietary Limited, and the defendant, Baycrown Proprietary Limited, was a valid contract binding on the defendant.

On 30 August 2005, Baycrown brought an application to set aside the judgment delivered on 3 December 2004, on the basis of fresh evidence pursuant to Rule 668 of the Uniform Civil Procedure Rules.  That application raised three matters of fresh evidence.  One concerned allegations of collaboration between witnesses.  The other two matters of fresh evidence concerned a written authority disclosed after the trial which showed that IVI contracted as agent for an undisclosed principal, Norfolk Estates Proprietary Limited, and the subsequent bringing of proceedings for specific performance by IVI and Norfolk Estates against the applicant.  For convenience, these two matters are collectively referred to as the undisclosed principal issues.

On the hearing of that application, the respondent brought a cross-application for an order that Baycrown's application be stayed, firstly on the basis of an abuse of process because of the existence of concurrent proceedings, namely a special leave application before the High Court, ventilating the undisclosed principal issues, and additionally, on the basis that Ivi had failed to adduce evidence sufficient to permit its application to set aside the judgment to proceed.

On 9 November 2005, Baycrown's application to set aside the judgment of 3 December 2004 was dismissed, except in so far as it concerned the undisclosed principal issues, in respect of which it was stayed.

A basis for the stay was that the application constituted an abuse of process because of the extensive overlap between the undisclosed principal issues raised on the application, and the special leave application then on foot.  The applicant has appealed the decision of 9 November 2005.

The application now seeks to have the stay lifted, and the undisclosed principal issues determined because the High Court has since heard the special leave application, and refused leave.  It is submitted that such a course ought to be taken so that the appeal from the order of 9 November 2005 can encompass all the issues raised on the application to set aside the judgment.  The applicant indicated that it did not intend to make any further submissions on the substantive issues relating to the undisclosed principal issues, and accepted that consistent with the reasons for the decision of 9 November 2005, a ruling on the matters stayed would result in the application being dismissed in its entirety. 

As the reasons for staying the application indicate, the application concerning the undisclosed principal issues was stayed not only as an abuse of process because of the concurrent proceedings, but also on the alternative ground raised by IVI, that is that IVI's application lacked merit; IVI, having failed to adduce evidence sufficient to permit its application to set aside the judgment to proceed.

It was thus held in paragraph 18 of the reasons that, "even if it were found in Baycrown's favour that there was an obligation on IVI to disclose the authority from Norfolk, and by virtue of rule 18 of the UCPR to specify that the within proceeding were brought in a representative capacity it does not appear to me that the fresh evidence relied on can be sufficient to warrant the order sought under Rule 668".

The reasons for that conclusion were outlined in paragraphs 25 to 33 of the judgment.  The lack of merit in the application was an additional basis supporting the grant of the stay, as was the fact that the matters of fresh evidence relied upon were not raised on the hearing of the appeal from the decision of 3 December 2004, notwithstanding that, Baycrown could have done so.

It was thus specifically found that even if the legal principals relating to the undisclosed principal issues were determined in the applicant's favour, it would nevertheless be an insufficient basis to warrant the order sought under Rule 668 to set aside the judgment of 3 December 2004.
Contrary to Baycrown's submissions, it is clear that the undisclosed principal issues are presently raised in the appeal from the decision of 9 November 2005: see paragraphs 2(e) to 2 (f) of the Notice of Appeal.

In my view, there is no basis for lifting the stay.  The application is dismissed.

...

HER HONOUR:  I order costs on a standard basis.

-----