Matton Developments Pty Ltd v CGU Insurance Limited (No 2) - [2016] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

Matton Developments Pty Ltd v CGU Insurance Limited (No 2) [2016] QCA 285

PARTIES:

MATTON DEVELOPMENTS PTY LTD
ACN 100 028 340
(applicant)
v
CGU INSURANCE LIMITED
ACN 004 478 371
(respondent)

FILE NO/S:

Appeal No 4741 of 2015
SC No 1704 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 72

DELIVERED ON:

8 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2016

JUDGES:

Margaret McMurdo P and Fraser and Morrison JJA
Joint reasons for judgment of Margaret McMurdo P and Morrison JA; separate reasons of Fraser JA, dissenting in part

ORDERS:
1.   In respect of the orders made by the Court of Appeal on 23 August 2016, pursuant to r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld):

(a)   Paragraphs 3(b), 3(c), 3(d) and 3(e) are set aside;

(b)   in place of paragraph 3(b), an order is made in the following terms:

“$123,750 being the agreed sum for loss of revenue.”

(c)    in place of paragraph 3(e), an order is made in the following terms:

“$788,524.14 for interest pursuant to s 57 Insurance Contracts Act 1984 (Cth) for the period 1 April 2009 until 23 August 2016 and $291.83 per day thereafter until payment of the judgment sum.”

2.   By consent, upon the applicant undertaking to proceed expeditiously with the application for special leave and any resultant appeal, all of the orders of the Court of Appeal made on 23 August 2016 (as varied by paragraph 1 above) are stayed until the later of either the determination of the applicant’s application for special leave in the High Court, or if special leave is granted, the determination of the appeal.

3.   Each party bear its own costs of and incidental to this application.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – AMENDMENT OF ORDERS – where the Court of Appeal published its reasons and orders on the appeal – where the respondent applied, pursuant to r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld), for an order to set aside three subparagraphs of the orders made – where the orders were made on the assumption that the sums referenced in the three subparagraphs were based on an “agreed sum” – where the basis of the application to set aside the orders was that the sums were not actually agreed upon by the parties – whether the orders should be set aside

Uniform Civil Procedure Rules 1999 (Qld), r 667(1), r 766(6)(b)

COUNSEL:

R N Traves QC, with A F Messina, for the applicant
G A Thompson QC, with K F Holyoak, for the respondent

SOLICITORS:

Redchip Lawyers for the applicant
BarryNilsson for the respondent

MARGARET McMURDO P AND MORRISON JA: On 23 August 2016 this Court published its decision on the appeal.[1] The orders proposed by the President and agreed by Morrison JA (Fraser JA dissenting) were as follows:
[1]Matton Developments Pty Ltd…

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: [2016] QCA 285
Decision Date: 8 November 2016

CaseChat Overview and Summary

In the case of Matton Developments Pty Ltd v CGU Insurance Limited (No 2), the matter was heard in the Queensland Court of Appeal. The dispute involved an appeal concerning the assessment of damages in a claim for loss of revenue and interest under an insurance policy. The Court of Appeal had previously made orders in favour of the appellant, Matton Developments Pty Ltd, against the respondent, CGU Insurance Limited, on 23 August 2016. The respondent subsequently applied for an order to set aside certain subparagraphs of those orders, arguing that the sums referenced in those subparagraphs were not agreed upon by the parties, contrary to the assumption on which the orders were made.

The central legal issue before the court was whether the orders made by the Court of Appeal should be set aside due to the misapprehension that certain sums had been agreed upon by the parties. The respondent argued that the Court of Appeal had erred in its assumption that the sums were based on an "agreed sum," and as such, the orders should be varied to reflect the true position. The court was required to determine whether the respondent's application should succeed and, if so, what orders should replace those that were set aside.

The Court of Appeal, in considering the respondent's application, found that the orders should indeed be set aside because they were made on a mistaken assumption that certain sums were agreed upon. The court emphasised that the orders needed to accurately reflect the agreed terms and, where necessary, the court was empowered to vary the orders to achieve this. The court varied the orders by setting aside the subparagraphs in question and substituting them with orders that correctly identified the agreed sum for loss of revenue and specified the interest to be paid. The court also stayed the operation of the varied orders pending the outcome of any further appeal to the High Court, and ordered that each party bear their own costs of the application.

The final orders of the court were that certain subparagraphs of the previous orders were set aside, new orders were made specifying the agreed sum for loss of revenue and the interest to be paid, and the operation of the varied orders was stayed pending the outcome of any further appeal to the High Court. Each party was ordered to bear their own costs of the application.

Orders

Orders of the court

1. In respect of the orders made by the Court of Appeal on 23 August 2016, pursuant to r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld):

(a) Paragraphs 3(b), 3(c), 3(d) and 3(e) are set aside;

(b) in place of paragraph 3(b), an order is made in the following terms:

“$123,750 being the agreed sum for loss of revenue.”

“$788,524.14 for interest pursuant to s 57 Insurance Contracts Act 1984 (Cth) for the period 1 April 2009 until 23 August 2016 and $291.83 per day thereafter until payment of the judgment sum.”

2. By consent, upon the applicant undertaking to proceed expeditiously with the application for special leave and any resultant appeal, all of the orders of the Court of Appeal made on 23 August 2016 (as varied by paragraph 1 above) are stayed until the later of either the determination of the applicant’s application for special leave in the High Court, or if special leave is granted, the determination of the appeal.

3. Each party bear its own costs of and incidental to this application.

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

Full text does not contain this section.

CITATION:	Matton Developments Pty Ltd v CGU Insurance Limited (No 2) [2016] QCA 285
PARTIES:	MATTON DEVELOPMENTS PTY LTD ACN 100 028 340 (applicant) v CGU INSURANCE LIMITED ACN 004 478 371 (respondent)
FILE NO/S:	Appeal No 4741 of 2015 SC No 1704 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane – [2015] QSC 72
DELIVERED ON:	8 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 2016
JUDGES:	Margaret McMurdo P and Fraser and Morrison JJA Joint reasons for judgment of Margaret McMurdo P and Morrison JA; separate reasons of Fraser JA, dissenting in part
ORDERS:	1. *In respect of the orders made by the Court of Appeal on 23 August 2016, pursuant to r 667(1) of the Uniform Civil Procedure Rules* 1999 (Qld): (a) Paragraphs 3(b), 3(c), 3(d) and 3(e) are set aside; (b) in place of paragraph 3(b), an order is made in the following terms: “$123,750 being the agreed sum for loss of revenue.” (c) in place of paragraph 3(e), an order is made in the following terms: “$788,524.14 for interest pursuant to s 57 Insurance Contracts Act 1984 (Cth) for the period 1 April 2009 until 23 August 2016 and $291.83 per day thereafter until payment of the judgment sum.” 2. By consent, upon the applicant undertaking to proceed expeditiously with the application for special leave and any resultant appeal, all of the orders of the Court of Appeal made on 23 August 2016 (as varied by paragraph 1 above) are stayed until the later of either the determination of the applicant’s application for special leave in the High Court, or if special leave is granted, the determination of the appeal. 3. Each party bear its own costs of and incidental to this application.**
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – AMENDMENT OF ORDERS – where the Court of Appeal published its reasons and orders on the appeal – where the respondent applied, pursuant to r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld), for an order to set aside three subparagraphs of the orders made – where the orders were made on the assumption that the sums referenced in the three subparagraphs were based on an “agreed sum” – where the basis of the application to set aside the orders was that the sums were not actually agreed upon by the parties – whether the orders should be set aside Uniform Civil Procedure Rules 1999 (Qld), r 667(1), r 766(6)(b)
COUNSEL:	R N Traves QC, with A F Messina, for the applicant G A Thompson QC, with K F Holyoak, for the respondent
SOLICITORS:	Redchip Lawyers for the applicant BarryNilsson for the respondent