Mackellar Mining Equipment Pty Ltd v Thornton (No 2) - [2018] QSC 208

SUPREME COURT OF QUEENSLAND

CITATION:

Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors (No 2) [2018] QSC 208

PARTIES:

MACKELLAR MINING EQUIPMENT PTY LTD (ACN 010 398 428) AND DRAMATIC INVESTMENTS PTY LIMITED (ACN 059 863 204) TRADING AS PARTNERSHIP 818

(First Applicant)

AND

JANET ELIZABETH WRIGHT AS REPRESENTATIVE OF THE ESTATE OF LESLIE ARTHUR WRIGHT (DECEASED)
(Second Applicant)

v

TRAD THORNTON AND THE PARTIES LISTED ON THE ORIGINATING APPLICATION

(Respondents)

FILE NO/S:

BS No 2252 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application for Stay

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2018

JUDGE:

Lyons SJA

ORDER:

The orders of the Court are:

1.   The interlocutory injunction ordered on 7 March 2017 and extended on 21 March 2017 and 27 April 2017 and then extended until further order on 13 June 2017 be dissolved.

2.   Paragraphs 3 to 6 and 11-12 of the Originating Application 2252 of 2017 be dismissed.

3.   Judgment for the Respondents against the Applicants in relation to paragraphs 3 to 6 and 11-12 of the Originating Application 2252 of 2017.

4.   There be an inquiry whether the Respondents have sustained any, and what, damage by reason of the injunction granted by order on 7 March 2017, 21 March 2017, 27 April 2017 and 13 June 2017 which the Applicants ought pay according to the undertakings contained in the said orders.

5.   The said inquiry be adjourned to a date to be fixed.

6.   The costs of the said inquiry be reserved.

7.   The Applicants and Respondents each have liberty to apply with respect to the said inquiry and the orders in paragraphs 4, 5 and 6 of this order by one party giving the other parties five (5) clear business days’ notice in writing.

8.   All questions of costs, including reserved costs and the costs of the Application for the stay, be adjourned to a date to be fixed.

9.   Each party have liberty to apply in relation to the questions of costs in paragraph 8 of this order by giving the other parties three (3) clear business days’ notice in writing.

10. The Application for the stay of orders 1 to 3 above is refused.

11. The application filed on 12 October 2017 in relation to paragraphs 7 and 8 of the Originating Application 2252 of 2017 is adjourned to a date to be fixed to be relisted by one party giving the other parties five (5) clear business days’ notice in writing.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the applicants seek a stay of a decision of this court on 23 August 2018 – where the application that sought, inter alia, an anti-suit injunction was dismissed on 23 August 2018 – where the applicants have filed a Notice of Appeal – where the appeal could be heard in November…

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.

Keep reading for free

Create a free CaseChat account to read Mackellar Mining Equipment Pty Ltd v Thornton (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QSC 208
Decision Date: 10 September 2018

CaseChat Overview and Summary

In the matter of Mackellar Mining Equipment Pty Ltd v Thornton (No 2), the applicants sought a stay of a decision made on 23 August 2018, which effectively dismissed their application for an anti-suit injunction. The applicants, who had filed an originating application on 6 March 2017, sought various declarations and orders to permanently restrain the respondents from pursuing proceedings scheduled for a three-week trial in Missouri in July 2019. An ex-parte interim injunction was initially granted on 7 March 2017 and subsequently extended multiple times. On 12 October 2017, the respondents sought an order to vacate the interim injunction and for directions regarding the applicants' entitlement to injunctive relief. After a trial on 14 and 15 June 2018, the court delivered its reasons for decision on 23 August 2018, dismissing the application for injunctive relief. The applicants then filed a Notice of Appeal on 6 September 2018, seeking an extension of the stay until the appeal's determination.

The legal issues before the court involved whether the stay should be granted to prevent the orders from becoming nugatory, whether the applicants would suffer prejudice if the stay was refused, and whether the respondents would be disadvantaged if the stay was granted. The principles governing a stay of execution of judgment pending appeal were considered, with the court noting that it is not necessary for the applicant to show exceptional circumstances to warrant the grant of the stay. However, the court must ensure that the judgment of the Trial Division is not treated as provisional and that the successful party in the litigation is entitled to the fruits of their judgment.

The court ultimately decided to refuse the application for a stay of the orders dismissing the anti-suit injunction. The interlocutory injunction ordered on 7 March 2017 and extended on subsequent dates was dissolved, and the applicants' claims for injunctive relief were dismissed. The court also ordered an inquiry into any damages sustained by the respondents due to the injunction, with costs and further applications reserved for later determination. The respondents' application regarding other aspects of the originating application was adjourned to a future date.

Orders

Orders of the court

The orders of the Court are:

1. The interlocutory injunction ordered on 7 March 2017 and extended on 21 March 2017 and 27 April 2017 and then extended until further order on 13 June 2017 be dissolved.

2. Paragraphs 3 to 6 and 11-12 of the Originating Application 2252 of 2017 be dismissed.

3. Judgment for the Respondents against the Applicants in relation to paragraphs 3 to 6 and 11-12 of the Originating Application 2252 of 2017.

4. There be an inquiry whether the Respondents have sustained any, and what, damage by reason of the injunction granted by order on 7 March 2017, 21 March 2017, 27 April 2017 and 13 June 2017 which the Applicants ought pay according to the undertakings contained in the said orders.

5. The said inquiry be adjourned to a date to be fixed.

6. The costs of the said inquiry be reserved.

7. The Applicants and Respondents each have liberty to apply with respect to the said inquiry and the orders in paragraphs 4, 5 and 6 of this order by one party giving the other parties five (5) clear business days’ notice in writing.

8. All questions of costs, including reserved costs and the costs of the Application for the stay, be adjourned to a date to be fixed.

9. Each party have liberty to apply in relation to the questions of costs in paragraph 8 of this order by giving the other parties three (3) clear business days’ notice in writing.

10. The Application for the stay of orders 1 to 3 above is refused.

11. The application filed on 12 October 2017 in relation to paragraphs 7 and 8 of the Originating Application 2252 of 2017 is adjourned to a date to be fixed to be relisted by one party giving the other parties five (5) clear business days’ notice in writing.

Background

Background to the litigation

The applicants seek a stay of a decision of 23 August 2018 which would have effectively dismissed their application for an anti-suit injunction.Background By originating application filed 6 March 2017, the applicants sought a number of declarations and orders which would have permanently restrained the First to Sixty First Respondents from essentially taking any step to pursue proceedings which are currently listed for a three week trial in Missouri in July 2019. An ex-parte interim injunction was issued by Douglas J on 7 March 2017 which was subsequently extended on 21 March 2017 and 27 April 2017. On 13 June 2017 the injunction was extended until further order by Dalton J. By interlocutory application filed on 12 October 2017, the respondent sought an order that the interim injunction be vacated and for directions for the determination of the applicants’ entitlement to injunctive relief as a separate question. The trial of the question as to whether the applicants were entitled to injunctive relief was heard on 14 and 15 June 2018. On 23 August 2018 I published my reasons for decision which indicated that the application for the injunctive relief should be dismissed. On 23 August 2018 the applicants sought a stay of any order until 7 September, pending further argument on an application for a stay as none of the Counsel who had appeared at the trial were available. On 7 September 2018 the application for the stay was argued before me and the decision was reserved. On 7 September 2018 I ordered that the interim stay ordered on 23 August 2018 was continued until 4.30 pm 10 September 2018. Application for a stay Pursuant to Rule 761(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), the Court of Appeal, a Judge of Appeal or the Court that made the order appealed from may order a stay of the enforcement of all or part of a decision subject to an appeal. On 6 September 2018, the applicants filed a Notice of Appeal of the decision delivered on 23 August 2018. The affidavit material indicates that enquiries of the Court of Appeal Registrar show that the applicants’ appeal could be heard by the Court of Appeal on a number of dates in November including 9 November; 12, 13, 14, 15 November; 19 November; 21, 22 or 23 November. When the Notice of Appeal was filed, it was accompanied by a letter seeking an expedited hearing.[1] [1] Court File Document 122: Affidavit of Brooke Cheree Backer sworn 6 September 2018. The applicants accordingly have applied for an order extending the operation of the stay until the determination of the appeal filed on 6 September 2018. The respondents seek an order discharging the injunction. Principles The principles in relation to a stay of execution of judgment pending the outcome of an appeal are well known and have been considered in a number of authorities. In 2008 in the Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd[2], Keane JA (as his Honour then was) considered a number of the relevant principles and relied on the earlier decision of Berry v Green[3] to hold that it is not necessary for the applicant for the stay pending appeal to show that there are ‘special or exceptional circumstances’ that warrant the grant of the stay. The Court held that “it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment.”[4][2] [2008] QCA 322.[3] [1999] QCA 213.[4] Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322 at [12].

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:	Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors (No 2) [2018] QSC 208
PARTIES:	MACKELLAR MINING EQUIPMENT PTY LTD (ACN 010 398 428) AND DRAMATIC INVESTMENTS PTY LIMITED (ACN 059 863 204) TRADING AS PARTNERSHIP 818 (First Applicant) AND JANET ELIZABETH WRIGHT AS REPRESENTATIVE OF THE ESTATE OF LESLIE ARTHUR WRIGHT (DECEASED) (Second Applicant) v TRAD THORNTON AND THE PARTIES LISTED ON THE ORIGINATING APPLICATION (Respondents)
FILE NO/S:	BS No 2252 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application for Stay
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	7 September 2018
JUDGE:	Lyons SJA
ORDER:	The orders of the Court are: 1. The interlocutory injunction ordered on 7 March 2017 and extended on 21 March 2017 and 27 April 2017 and then extended until further order on 13 June 2017 be dissolved. 2. Paragraphs 3 to 6 and 11-12 of the Originating Application 2252 of 2017 be dismissed. 3. Judgment for the Respondents against the Applicants in relation to paragraphs 3 to 6 and 11-12 of the Originating Application 2252 of 2017. 4. There be an inquiry whether the Respondents have sustained any, and what, damage by reason of the injunction granted by order on 7 March 2017, 21 March 2017, 27 April 2017 and 13 June 2017 which the Applicants ought pay according to the undertakings contained in the said orders. 5. The said inquiry be adjourned to a date to be fixed. 6. The costs of the said inquiry be reserved. 7. The Applicants and Respondents each have liberty to apply with respect to the said inquiry and the orders in paragraphs 4, 5 and 6 of this order by one party giving the other parties five (5) clear business days’ notice in writing. 8. All questions of costs, including reserved costs and the costs of the Application for the stay, be adjourned to a date to be fixed. 9. Each party have liberty to apply in relation to the questions of costs in paragraph 8 of this order by giving the other parties three (3) clear business days’ notice in writing. 10. The Application for the stay of orders 1 to 3 above is refused. 11. The application filed on 12 October 2017 in relation to paragraphs 7 and 8 of the Originating Application 2252 of 2017 is adjourned to a date to be fixed to be relisted by one party giving the other parties five (5) clear business days’ notice in writing.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the applicants seek a stay of a decision of this court on 23 August 2018 – where the application that sought, inter alia, an anti-suit injunction was dismissed on 23 August 2018 – where the applicants have filed a Notice of Appeal – where the appeal could be heard in November…