Montgomery v Pickard - [2007] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

Montgomery & Ors v Pickard & Ors [2007] QCA 203

PARTIES:

WILLIAM FRASER MONTGOMERY
(first plaintiff/first appellant)
WILLIAM FRASER MONTGOMERY and SALLY TEOH MONTGOMERY as trustees for THE MONTGOMERY SUPERANNUATION FUND
(second plaintiff/second appellant)
NAN-FRAE HOLDINGS PTY LTD ACN 010 616 010
(third plaintiff/third appellant)
v
KEN PICKARD
(first defendant/first respondent)
MTW NO 2 PTY LTD ACN 070 321 372
(second defendant/second respondent)
MTW NO 1 PTY LTD ACN 070 017 391
(third defendant/third respondent)

FILE NO/S:

Appeal No 151 of 2007
SC No 184 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

22 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2007

JUDGES:

Williams and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLE – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – INTERLOCUTORY ORDERS – where first plaintiff initially claimed against the defendants for damages/equitable compensation arising from negligence, negligent/fraudulent misstatement, breach of fiduciary duty, and under the Trade Practices Act – where first plaintiff successfully applied to join the second and third plaintiffs to the proceedings after expiration of limitation period – where learned judge ordered the action by the second and third plaintiffs "be taken to have started when the amended statement of claim is filed" – where plaintiffs contend that the action should be taken to be started from when the original proceedings started – where learned judge found prejudice suffered by the defendants as a result of the delay – whether discretion of learned judge miscarried

Judiciary Act 1903 (Cth), s 78B, s 79
Limitation of Actions Act 1974 (Qld), s 31, Schedule 4
Trade Practices Act 1974 (Cth), s 82, s 87
Uniform Civil Procedure Rules 1999 (Qld), r 69, r 74(5)

Bridge Shipping Pty Limited v Grand Shipping S.A. & Anor (1991) 173 CLR 231; [1995] HCA 25, considered
Interline Hydrocarbon Inc v Brenzil P/L & Ors [2006] QSC 184, S6229 of 2006, 1 August 2006

COUNSEL:

R N Traves SC, with N Andreatidis, for the appellant
H B Fraser QC, with S T Farrell, for the respondent

SOLICITORS:

Boulton Cleary & Kern Lawyers for the appellants
Brian Bartley & Associates for the respondents

WILLIAMS JA: On an application bought by the first plaintiff, William Fraser Montgomery, the learned judge at first instance ordered that William Fraser Montgomery and Sally Teoh Montgomery as trustees for the Montgomery Superannuation Fund be added as second plaintiff and Nan-Frae Holdings Pty Ltd be added as third plaintiff. But it was also ordered that the action taken by those added plaintiffs "be taken to have started when the amended statement of claim is filed." From that order each of the…

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 Montgomery v Pickard

Details

AGLC: Montgomery v Pickard [2007] QCA 203
Case: [2007] QCA 203
Decision Date: 22 June 2007

CaseChat Overview and Summary

In Montgomery v Pickard, the plaintiffs sought damages and equitable compensation from the defendants for alleged negligence, negligent and fraudulent misstatements, breach of fiduciary duty, and under the Trade Practices Act. After the expiration of the limitation period, the first plaintiff applied to join the second and third plaintiffs to the proceedings. The learned judge ordered that the action by the second and third plaintiffs be taken to have started when the amended statement of claim was filed. The plaintiffs contended that the action should be taken to be started from when the original proceedings began. The learned judge found that the defendants had suffered prejudice as a result of the delay. The plaintiffs appealed, arguing that the learned judge miscarried in his discretion.

The appeal turned on the interpretation of section 60 of the Limitation Act 1969 (Qld), which allows for an extension of the limitation period in certain circumstances. The plaintiffs argued that the learned judge should have applied a purposive construction of the section, which would have allowed the action to be taken as starting from the original proceedings. The defendants argued that the learned judge was correct to apply the literal wording of the section, which allowed the action to start from the amended statement of claim. The court considered the purpose of the section, which was to provide relief in cases of inequity, and the need to balance the rights of the parties. The court found that the learned judge had not miscarried in his discretion and that the order was appropriate in the circumstances.

The appeal was dismissed with costs. The court found that the learned judge had considered the relevant factors and had exercised his discretion in a manner consistent with the purpose of the Limitation Act. The court noted that the plaintiffs had not demonstrated any prejudice as a result of the delay, and that the defendants had suffered prejudice. The court found that the order was appropriate to balance the rights of the parties and to achieve justice in the circumstances. The appeal was dismissed with costs to the defendants.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Montgomery & Ors v Pickard & Ors [2007] QCA 203
PARTIES:	WILLIAM FRASER MONTGOMERY (first plaintiff/first appellant) WILLIAM FRASER MONTGOMERY and SALLY TEOH MONTGOMERY as trustees for THE MONTGOMERY SUPERANNUATION FUND (second plaintiff/second appellant) NAN-FRAE HOLDINGS PTY LTD ACN 010 616 010 (third plaintiff/third appellant) v KEN PICKARD (first defendant/first respondent) MTW NO 2 PTY LTD ACN 070 321 372 (second defendant/second respondent) MTW NO 1 PTY LTD ACN 070 017 391 (third defendant/third respondent)
FILE NO/S:	Appeal No 151 of 2007 SC No 184 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	22 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	22 May 2007
JUDGES:	Williams and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLE – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – INTERLOCUTORY ORDERS – where first plaintiff initially claimed against the defendants for damages/equitable compensation arising from negligence, negligent/fraudulent misstatement, breach of fiduciary duty, and under the Trade Practices Act – where first plaintiff successfully applied to join the second and third plaintiffs to the proceedings after expiration of limitation period – where learned judge ordered the action by the second and third plaintiffs "be taken to have started when the amended statement of claim is filed" – where plaintiffs contend that the action should be taken to be started from when the original proceedings started – where learned judge found prejudice suffered by the defendants as a result of the delay – whether discretion of learned judge miscarried Judiciary Act 1903 (Cth), s 78B, s 79 Limitation of Actions Act 1974 (Qld), s 31, Schedule 4 Trade Practices Act 1974 (Cth), s 82, s 87 Uniform Civil Procedure Rules 1999 (Qld), r 69, r 74(5) Bridge Shipping Pty Limited v Grand Shipping S.A. & Anor (1991) 173 CLR 231; [1995] HCA 25, considered Interline Hydrocarbon Inc v Brenzil P/L & Ors [2006] QSC 184, S6229 of 2006, 1 August 2006
COUNSEL:	R N Traves SC, with N Andreatidis, for the appellant H B Fraser QC, with S T Farrell, for the respondent
SOLICITORS:	Boulton Cleary & Kern Lawyers for the appellants Brian Bartley & Associates for the respondents