McGlone v Kalgold Pty Ltd - [2011] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

McGlone v Kalgold Pty Ltd & Anor [2011] QCA 215

PARTIES:

JOHN ANDREW McGLONE
(appellant)
v
KALGOLD PTY LTD
ACN 026 620 432
(first respondent)
MELINDA GAY McGLONE
(second respondent)
HOMEGATE PTY LTD
ACN 118 064 449
(not party to appeal)

FILE NO/S:

Appeal No 2036 of 2011
DC No 107 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

30 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2011

JUDGES:

Chief Justice, McMurdo and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to appeal refused

2. The appellant pay the costs of the first and second respondents on a standard basis to be assessed or agreed

CATCHWORDS:

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – GENERALLY – where the appellant raised factual matters not before the primary judge – where the appellant claimed estoppel – where the appellant claimed unjust enrichment – where the appellant claimed the first respondent failed to mitigate its loss – where the appellant claimed mistake – whether there was an estoppel against the landlord – whether a restitutionary remedy was available to the appellant – whether the landlord’s loss was due to its failure to mitigate – whether the guarantee and indemnity could be set aside for mistake

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the appellant sought leave to rely on evidence which was not before the primary judge – where the further evidence was in existence at the original hearing – whether leave should be granted to adduce further evidence on appeal

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – whether the appellant needed leave to appeal having regard to the changes to the Magistrates Courts’ jurisdiction after the proceeding commenced, but before judgment

Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld), s 98
District Court of Queensland Act 1967 (Qld), s 118(2)(a)
Magistrates Courts Act 1921 (Qld), s 60

Benson-Brown v Smith [1999] VSC 208, followed
Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204, cited
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673, followed
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, followed
Pialba Commercial Gardens Pty Ltd v Braxco Pty Ltd & Ors [2011] QCA 148, followed
Sequel Drill & Blast P/L v Whitsunday Crushers P/L [2009] QCA 218, followed
Re: Castleplex Pty Ltd (in liq) [2010] QCA 59, followed
Tasman Capital Pty Ltd v Sinclair (2008) 75 NSWLR 1 [2008] NSWCA 248, followed

COUNSEL:

The appellant appeared on his own behalf
S M Gerber for the first respondent
T A Nielsen for the second…

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.

Continue reading McGlone v Kalgold Pty Ltd

Details

AGLC: McGlone v Kalgold Pty Ltd [2011] QCA 215
Case: [2011] QCA 215
Decision Date: 30 August 2011

CaseChat Overview and Summary

The appeal in McGlone v Kalgold Pty Ltd concerned the termination of a lease, with the appellant, McGlone, contesting the actions of the respondents, Kalgold Pty Ltd and its directors. The primary judge had ruled in favour of Kalgold, and McGlone sought to appeal this decision on various grounds, including estoppel, unjust enrichment, and mistake. McGlone also sought to introduce new evidence that had not been presented to the primary judge.

The key legal issues before the court were whether there was an estoppel against Kalgold, if a restitutionary remedy was available to McGlone, whether Kalgold’s losses were due to its failure to mitigate, and if the guarantee and indemnity could be set aside due to a mistake. Additionally, the court had to determine whether McGlone should be permitted to adduce new evidence that was in existence at the time of the original hearing, and whether leave to appeal was necessary given changes in the jurisdiction of the Magistrates Court.

The court found that McGlone had not demonstrated any grounds warranting the admission of new evidence or the setting aside of the primary judge’s decision. It was held that the new evidence did not relate to any matter in issue at the original hearing and would not have changed the outcome. Furthermore, the court ruled that there was no need for leave to appeal, as the changes in the Magistrates Court’s jurisdiction did not impact the appeal’s validity. The appeal was dismissed, and McGlone was ordered to pay the costs of the first and second respondents on a standard basis.

Orders

Orders of the court

1. Leave to appeal refused

2. The appellant pay the costs of the first and second respondents on a standard basis to be assessed or agreed

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:	McGlone v Kalgold Pty Ltd & Anor [2011] QCA 215
PARTIES:	JOHN ANDREW McGLONE (appellant) v KALGOLD PTY LTD ACN 026 620 432 (first respondent) MELINDA GAY McGLONE (second respondent) HOMEGATE PTY LTD ACN 118 064 449 (not party to appeal)
FILE NO/S:	Appeal No 2036 of 2011 DC No 107 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	30 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2011
JUDGES:	Chief Justice, McMurdo and Dalton JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal refused 2. The appellant pay the costs of the first and second respondents on a standard basis to be assessed or agreed
CATCHWORDS:	LANDLORD AND TENANT – TERMINATION OF THE TENANCY – GENERALLY – where the appellant raised factual matters not before the primary judge – where the appellant claimed estoppel – where the appellant claimed unjust enrichment – where the appellant claimed the first respondent failed to mitigate its loss – where the appellant claimed mistake – whether there was an estoppel against the landlord – whether a restitutionary remedy was available to the appellant – whether the landlord’s loss was due to its failure to mitigate – whether the guarantee and indemnity could be set aside for mistake APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the appellant sought leave to rely on evidence which was not before the primary judge – where the further evidence was in existence at the original hearing – whether leave should be granted to adduce further evidence on appeal APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – whether the appellant needed leave to appeal having regard to the changes to the Magistrates Courts’ jurisdiction after the proceeding commenced, but before judgment Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld), s 98 District Court of Queensland Act 1967 (Qld), s 118(2)(a) Magistrates Courts Act 1921 (Qld), s 60 Benson-Brown v Smith [1999] VSC 208, followed Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204, cited British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673, followed Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, followed Pialba Commercial Gardens Pty Ltd v Braxco Pty Ltd & Ors [2011] QCA 148, followed Sequel Drill & Blast P/L v Whitsunday Crushers P/L [2009] QCA 218, followed Re: Castleplex Pty Ltd (in liq) [2010] QCA 59, followed Tasman Capital Pty Ltd v Sinclair (2008) 75 NSWLR 1 [2008] NSWCA 248, followed
COUNSEL:	The appellant appeared on his own behalf S M Gerber for the first respondent T A Nielsen for the second…