SUPREME COURT OF QUEENSLAND
CITATION:
McCracken v Phoenix Constructions (Qld) Pty Ltd [2012] QCA 129
PARTIES:
JARROD McCRACKEN
(appellant)
v
PHOENIX CONSTRUCTIONS (QLD) PTY LTD
(respondent)FILE NO/S:
Appeal No 6056 of 2011
SC No 5615 of 2006DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Townsville
DELIVERED ON:
18 May 2012
DELIVERED AT:
Brisbane
HEARING DATE:
29 February 2012
JUDGES:
Fraser and White JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
Allow the appeal with costs.1.
Set aside the orders made in the Trial Division on 15 June 2011 and on 13 July 2011.2.
Order instead that:3.
(a)The plaintiff’s claim against the third defendant is dismissed.
(b)The third defendant pay the plaintiff’s costs, including reserved costs, of prosecuting the proceedings against the first defendant and of defending the first defendant’s counterclaim, up until 21 July 2010.
(c)The third defendant pay 70 per cent of the plaintiff’s costs, including reserved costs, of and incidental to the proceedings against the third defendant.
CATCHWORDS:
CORPORATIONS – GENERALLY – CORPORATIONS LEGISLATION – where respondent is creditor of corporation of which appellant is director – where trial judge found appellant in contravention of s 182(1) Corporations Act 2001 (Cth) and awarded damages to respondent pursuant to s 1324(10) – where appellant argued s 1324(10) does not confer right of damages upon creditor for contravention of s 182 – where appellant argued award of damages under s 1324(10) would amount to preference over other unsecured creditors – where respondent argued damages available under s 1324(10) – where respondent argued jurisdiction for granting injunction sufficient to enliven award of damages under s 1324(10) – whether trial judge erred in awarding damages under s 1324(10)
EVIDENCE – ADMISSIBILITY AND RELEVANCY – FACTS SHOWING STATE OF MIND – INTENTION – where the appellant sought to rely on affidavit at trial as evidence of understanding or agreement between appellant and his wife in relation to proper construction of joint venture agreement – where trial judge concluded that the affidavit evidence was not admissible – where appellant argued evidence admissible on different ground that it showed appellant’s purpose of entering into deed of amendment – where respondent argued that affidavit not tendered as evidence of appellant’s purpose, but evidence of conduct – whether the trial judge erred in not admitting the affidavit evidence
EVIDENCE – GENERAL – OTHER GENERAL MATTERS – where trial judge awarded damages equal to respondent’s contractual claim against appellant for contravention of s 182(1) Corporations Act 2001 (Cth) – where appellant argued respondent failed to prove alleged loss due to existence of unsecured creditors and no evidence of financial position – where respondent argued contention should not be considered because not pleaded, not subject of any disclosure, not subject of evidence, and because appellant was only person capable of doing so – whether appellant not giving evidence could justify drawing adverse inference – whether…
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- AGLC
- McCracken v Phoenix Constructions (Qld) Pty Ltd [2012] QCA 129
- Case
- [2012] QCA 129
- Decision Date
CaseChat Overview and Summary
The court addressed several legal issues, including the interpretation and application of section 1324(10) of the Corporations Act, the admissibility of affidavit evidence, and the proof of loss by the respondent. The central issue was whether the trial judge correctly awarded damages under section 1324(10) and whether the respondent sufficiently proved the claimed loss. The court examined the statutory provisions and previous case law to determine the scope and intent of section 1324(10). It also assessed the admissibility criteria for the affidavit evidence and the sufficiency of the evidence presented by Phoenix Constructions to substantiate the claimed loss. The reasoning of the court was based on a detailed analysis of statutory interpretation, evidentiary rules, and the principles of damages in corporate law.
The appeal was allowed, and the orders of the Trial Division were set aside. The court concluded that the trial judge erred in awarding damages under section 1324(10) as it did not confer such a right on creditors. Additionally, the court found that the affidavit evidence was not admissible as it did not pertain to the appellant's purpose or intention in entering into the deed of amendment. The respondent's failure to sufficiently prove the claimed loss was also noted. Consequently, the court dismissed the plaintiff's claim against the third defendant and ordered that the third defendant pay the plaintiff's costs up to a certain date, along with a percentage of the costs associated with the proceedings against the third defendant.
Orders
Orders of the court
Allow the appeal with costs.1.
Set aside the orders made in the Trial Division on 15 June 2011 and on 13 July 2011.2.
Order instead that:3.
(a)The plaintiff’s claim against the third defendant is dismissed.
(b)The third defendant pay the plaintiff’s costs, including reserved costs, of prosecuting the proceedings against the first defendant and of defending the first defendant’s counterclaim, up until 21 July 2010.
(c)The third defendant pay 70 per cent of the plaintiff’s costs, including reserved costs, of and incidental to the proceedings against the third defendant.
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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