SUPREME COURT OF QUEENSLAND
CITATION:
IVI P/L v Baycrown P/L [2006] QCA 461
PARTIES:
IVI PTY LTD (ACN 093 587 314)
(plaintiff/respondent)
v
BAYCROWN PTY LTD (ACN 062 665 883)
(defendant/appellant)FILE NO/S:
Appeal No 10338 of 2005
Appeal No 2295 of 2006
SC No 9907 of 2002DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeals
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
16 June 2006
JUDGES:
Jerrard JA, Mackenzie and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1. In Appeal No 10338 of 2005:
(i) that the appeal be dismissed.2. In Appeal No 2295 of 2006:
(i) that the appellant have leave to appeal;
(ii) that the appeal be allowed;
(iii) that the orders made on 16 February 2006 be set aside, and, in lieu thereof, that the stay be lifted and the application filed by the defendant appellant on 30 August 2005 be dismissed with costs.3. The appellant is to pay the respondent’s costs of and incidental to both appeals to be assessed on the standard basis.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where, at trial, the court ordered specific performance of a contract for the sale of land – where the appellant claimed that facts were discovered after the order was made which, had they been discovered before the order was made, would have entitled it to a different order – where the newly discovered facts were that the respondent acted as agent of an undisclosed principal in buying the land under the contract, and the respondent’s solicitors disclosed draft witness statements to another witness – where the appellant applied under UCPR r 668 to the trial judge to have the judgment set aside and the matter reheard – where the trial judge partially stayed the application and otherwise dismissed it – where the appellant subsequently applied to the trial judge to lift the stay and the judge refused to do so – where the appellant seeks an order from the Court of Appeal under r 668 that the original order be set aside, and that the refusal to lift the stay be overturned – whether to set aside the original order on the ground of new facts – whether to lift the stay
PROCEDURE – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – GENERALLY – where the respondent signed a contract as an agent of another company – where the respondent did not disclose the agency authority in the discovery process before the original trial – whether such disclosure was required by r 18 or r 211 UCPR or otherwise
Uniform Civil Procedure Rules 1999 (Qld), r 18, r 211, r 668
Breen v Lambert, unreported, QSC, Thomas J, 4547/88, 16 August 1991, considered
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, considered
Daly v…
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- Case
- [2006] QCA 461
- Decision Date
CaseChat Overview and Summary
The court found that the appellant’s application under UCPR r 668 to set aside the original order was misconceived because the appellant had not demonstrated that it had no reasonable excuse for not discovering the facts before the original trial. The court found that the facts were known to the appellant at the time of the original trial and that the appellant had failed to demonstrate any prejudice suffered by the respondent as a result of the delay in bringing the application. The court also found that the trial judge was correct to refuse to lift the stay. The court found that the appellant had not demonstrated any grounds for lifting the stay, and that the trial judge had correctly exercised his discretion in refusing to lift the stay.
The orders of the Court of Appeal were that the appeal be dismissed, that the appellant have leave to appeal, that the appeal be allowed, and that the orders made on 16 February 2006 be set aside. In lieu thereof, the stay was to be lifted and the application filed by the defendant appellant on 30 August 2005 was to be dismissed with costs. The appellant was to pay the respondent’s costs of and incidental to both appeals to be assessed on the standard basis.
Orders
Orders of the court
1. In Appeal No 10338 of 2005:
(i) that the appeal be dismissed.
2. In Appeal No 2295 of 2006:
(i) that the appellant have leave to appeal;
(ii) that the appeal be allowed;
(iii) that the orders made on 16 February 2006 be set aside, and, in lieu thereof, that the stay be lifted and the application filed by the defendant appellant on 30 August 2005 be dismissed with costs.
3. The appellant is to pay the respondent’s costs of and incidental to both appeals to be assessed on the standard basis.
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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