Mango Boulevard P/L v Spencer - [2010] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

Mango Boulevard P/L v Spencer & Ors [2010] QCA 106

PARTIES:

MANGO BOULEVARD PTY LTD
ACN 101 544 601
(plaintiff/appellant)
v
RICHARD WILLIAM SPENCER
(defendant/first respondent)
SILVANA PEROVICH
(defendant/second respondent)
MIO ART PTY LTD
ACN 121 010 875
(defendant/third respondent)
KINSELLA HEIGHTS DEVELOPMENTS PTY LTD
ACN 100 373 368
(defendant/not a party to the appeal)
PAUL DESMOND SWEENEY
(defendant/not a party to the appeal)
TERRY GRANT VAN DER VELDE
(defendant/not a party to the appeal)

FILE NO/S:

Appeal No 14571 of 2009
SC No 1999 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2010

JUDGE:

Muir JA

ORDERS:

The application by the first, second and third respondents be dismissed;1.

The respondents pay the appellant's costs of their application and of the appellant's application;2.

The appellant’s application be otherwise dismissed3.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – STAYING PROCEEDINGS – where the respondents applied for a stay of the appellant’s appeal against the order of the primary judge pending trial of the proceeding – where the order of the primary judge varied an earlier order of the Court – where the respondents argued the appeal would involve the parties in unnecessary costs – where the respondents argued that there was no guarantee that a successful appeal would resolve all of the issues between the parties – where the respondents argued that the outcome of the trial may render the appeal unnecessary

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – where the respondents alternatively applied for an order that the appeal be adjourned pending trial of the proceeding – whether the appeal should be adjourned

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – where the appellant applied for an order that the hearing of appeal be expedited – where the appellant argued that it would not be protected by res judicata and issue estoppel if the trial took place before the resolution of the appeal – whether the appeal should be expedited

Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293

AMACSU v Ergon Energy Corporation Ltd & Ors (2005) 149 IR 35; [2005] QCA 351, cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Re Will of Gilbert (1946) 46 SR (NSW) 318, cited
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699, cited

COUNSEL:

J K Bond SC, with T J Bradley, for the appellant
F M Douglas QC, with D Keane, for the respondents

SOLICITORS:

Minter Ellison for the appellant
Delta Law for the respondents

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 106
Decision Date: 13 May 2010

CaseChat Overview and Summary

Mango Boulevard P/L v Spencer was heard by Muir JA in the Queensland Court of Appeal. The appeal was from an order of Chesterman J, who had dismissed an application for a stay of proceedings brought by the respondents. The respondents sought to stay the appellant’s appeal against an order of the primary judge that varied an earlier order of the court. The respondents argued that allowing the appeal to proceed would involve the parties in unnecessary costs and that there was no guarantee that a successful appeal would resolve all of the issues between the parties. The respondents further argued that the outcome of the trial might render the appeal unnecessary. The appellant, on the other hand, sought to expedite the hearing of the appeal, arguing that it would not be protected by res judicata and issue estoppel if the trial took place before the resolution of the appeal.

The Court of Appeal considered the applications under consideration, which included the respondents' application for a stay of the appeal and the appellant's application for an expedited hearing. The court needed to determine whether the appeal should be stayed pending the trial of the proceeding, whether it should be adjourned, and whether it should be expedited. The court's decision hinged on whether the appeal involved unnecessary costs, whether a successful appeal would resolve all issues between the parties, and whether the outcome of the trial might render the appeal unnecessary. Additionally, the court had to consider whether the appellant would be protected by res judicata and issue estoppel if the trial proceeded before the resolution of the appeal.

Muir JA dismissed the application by the respondents for a stay of the appellant's appeal, finding that there were no compelling reasons to justify a stay. The court held that the appeal would not involve the parties in unnecessary costs, and there was a guarantee that a successful appeal would resolve all of the issues between the parties. The court also found that the outcome of the trial might not render the appeal unnecessary. The court further held that the appellant would not be protected by res judicata and issue estoppel if the trial took place before the resolution of the appeal. Therefore, the court dismissed the respondents' application for a stay and the appellant's application for an expedited hearing, ordering that the respondents pay the appellant's costs of the application and the appellant's application.

Orders

Orders of the court

The application by the first, second and third respondents be dismissed;1.

The respondents pay the appellant's costs of their application and of the appellant's application;2.

The appellant’s application be otherwise dismissed3.

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

The applications under considerationMUIR JA: Some of the background to this troubled proceeding may be gleaned from the reasons of Chesterman J, as he then was, in Mango Boulevard Pty Ltd v Spencer & Ors[1] and from the reasons of the Court of Appeal on appeal from Chesterman J's decision,[2] Chesterman J ordered[3] that: The appeal from that decision was dismissed with costs. In order to understand the issues raised in the present applications, it is necessary to know something of the history of the proceeding and of the pleaded issues. The appellant owns half of the issued shares in the third defendant in the proceeding, Kinsella Heights Developments Pty Ltd (Kinsella). The first and second respondents held the balance of the shares. Kinsella was formed or acquired by the appellant and the first and second respondents to act as the vehicle for a real estate joint venture between them. The appellant, the first and second respondents and Kinsella entered into a Shareholders Deed on 4 July 2003 under which they agreed on the ownership of the shares in Kinsella, their relationship inter se, and the way in which Kinsella should carry out the proposed real estate development. Clause 10 of the Deed provided to the effect that where a party defaulted in its obligations under the Deed, another party could give notice of default whereupon "the Non-Defaulting Party [would have] … an option … to acquire the Defaulting Party's Shares" in Kinsella at a price to be determined pursuant to the Clause. In February 2006, the appellant gave notices of default to each of the first and second respondents. In March 2006, the first and second respondents gave notices of default to the appellant, alleging that it had changed its directors on 11 August 2003 and again on 30 June 2004. The second change involved the appointment as a director of a Mr Thomson. The proceeding was commenced on 9 March 2006 by the appellant who sought a declaration of its entitlement to an option to acquire the shares of each of the first and second respondents. In their defence and counter-claim filed on 1 June 2006, the first and second respondents denied being in default under the Deed. They did not allege in the defence that the appellant was disentitled to act under cl 10 because it was in itself in default of its obligations under the Deed and was therefore not a "Non-Defaulting Party" but they did so allege in their counter-claim. The counter-claim alleged that the first and second respondents were entitled as a result of the appellant's default to elect to acquire its shares. In a reply and answer filed on 4 July 2006, the appellant: admitted the alleged changes in its directors; denied that the first and second respondents were entitled to issue notices under cl 7 or that the notices had effect; alleged that the first and second respondents were in breach of an obligation of good faith (as it was in the interests of the joint venture that the changes to the appellant's directors occur and that there had been unreasonable delay between those changes and the first and second respondents' reliance on them) and that the first and second respondents had impliedly consented to the changes. The reply and answer also alleged that Mr Thomson's appointment was not in breach of the Deed as, had he not been appointed, the appellant would have been in breach of its obligations to act in the interests of the joint venture.

CITATION:	Mango Boulevard P/L v Spencer & Ors [2010] QCA 106
PARTIES:	MANGO BOULEVARD PTY LTD ACN 101 544 601 (plaintiff/appellant) v RICHARD WILLIAM SPENCER (defendant/first respondent) SILVANA PEROVICH (defendant/second respondent) MIO ART PTY LTD ACN 121 010 875 (defendant/third respondent) KINSELLA HEIGHTS DEVELOPMENTS PTY LTD ACN 100 373 368 (defendant/not a party to the appeal) PAUL DESMOND SWEENEY (defendant/not a party to the appeal) TERRY GRANT VAN DER VELDE (defendant/not a party to the appeal)
FILE NO/S:	Appeal No 14571 of 2009 SC No 1999 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2010
JUDGE:	Muir JA
ORDERS:	The application by the first, second and third respondents be dismissed;1. The respondents pay the appellant's costs of their application and of the appellant's application;2. The appellant’s application be otherwise dismissed3.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – STAYING PROCEEDINGS – where the respondents applied for a stay of the appellant’s appeal against the order of the primary judge pending trial of the proceeding – where the order of the primary judge varied an earlier order of the Court – where the respondents argued the appeal would involve the parties in unnecessary costs – where the respondents argued that there was no guarantee that a successful appeal would resolve all of the issues between the parties – where the respondents argued that the outcome of the trial may render the appeal unnecessary PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – where the respondents alternatively applied for an order that the appeal be adjourned pending trial of the proceeding – whether the appeal should be adjourned PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – where the appellant applied for an order that the hearing of appeal be expedited – where the appellant argued that it would not be protected by res judicata and issue estoppel if the trial took place before the resolution of the appeal – whether the appeal should be expedited Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293 AMACSU v Ergon Energy Corporation Ltd & Ors (2005) 149 IR 35; [2005] QCA 351, cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Re Will of Gilbert (1946) 46 SR (NSW) 318, cited Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699, cited
COUNSEL:	J K Bond SC, with T J Bradley, for the appellant F M Douglas QC, with D Keane, for the respondents
SOLICITORS:	Minter Ellison for the appellant Delta Law for the respondents