IVI Pty Ltd v Baycrown Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

IVI Pty Ltd v Baycrown Pty Ltd  [2005] QSC 330

PARTIES:

IVI PTY LTD ACN 093 587 314(plaintiff)
v
BAYCROWN PTY LTD ACN 062 665 883
(defendant)

FILE NO/S:

BS 9907 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15, 16 September 2005

JUDGE:

Philippides J

ORDER:

The application filed by Baycrown Pty Ltd on 30 August 2005 is dismissed, except insofar as it concerns the grounds relating to r 18 UCPR and the institution of the specific performance proceedings in respect of which the application is stayed. 

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – application to set aside judgment pursuant to r 668 UCPR – fresh evidence – principles of grant of new trial on grounds of discovery of fresh evidence, malpractice and fraud

PRINCIPAL AND AGENT – contract entered into for undisclosed principal – whether representative capacity required to be stated in proceedings brought by agent on the contract

Uniform Civil Procedure Rules 1999 (Qld), r 18, r 668

Abu Dhabi National Tanker Co v Product Star Shipping Co [1992] 2 All ER 20
Breen v Lambert, unreported, Thomas J, SC No 4547 of 1988, 16 August 1991
Commonwealth Bank of Australia Ltd v Quade (1991) 178 CLR 134
Day v Perisher Blue Pty Ltd [2005] NSWCA 110
Henry v Henry (1996) 185 CLR 571
Keighley Maxsted & Co v Durant [1901] AC 240
McDonald v McDonald (1965) 113 CLR 529
Moore v Inglis (1976) 50 ALJR 589
Orr v Holmes (1948) 76 CLR 632
Wills & Co v Baddeley [1892] 2 QB 324

Wollongong Corporation v Cowan (1954) 93 CLR 435

COUNSEL:

J Griffin QC with P W Hackett for the applicant

G A Thompson SC with A Pomerenke for the respondent

SOLICITORS:

Walsh & Partners for the applicant
Clayton Utz for the respondent

PHILIPPIDES J: 

Background

[1]      On 3 December 2004, after a trial, a declaration was made that a contract in writing dated 23 October 2002 between the plaintiff, IVI Pty Ltd (“IVI”), and the defendant, Baycrown Pty Ltd (“Baycrown”), for the purchase of certain land known as Day’s Farm, was a valid contract binding on Baycrown, the vendor.  Baycrown’s appeal from that judgment, heard on 1 June 2005, was dismissed with costs on 10 June 2005.  

[2]      The issue at trial centred on whether there was a concluded contract between the parties. Baycrown’s case was that the offer to sell the property had been withdrawn before its acceptance:

(a)        by an email sent on 23 October 2002 by Baycrown’s then solicitor, Mr Johanson, to Mr Martinez of Cleary Hoare, solicitors;

(b)        alternatively, by an oral communication of the withdrawal to Mr Moss (an officer of IVI) by Mr Gahan (a real estate agent appointed by Baycrown to sell the property) who had been copied on the email.

[3]      The witnesses called by IVI at the trial were…