MUELLER -v- QUE CAPITAL PTY LTD [No 2] [2016] WASCA 157

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 157
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:33/2015	Heard:	24 AUGUST 2016
Coram:	NEWNES JA MURPHY JA MITCHELL JA	Delivered:	9/09/16
No of pages:	21	Judgment Part:	1 of 1
Result:	Appellant's application to adduce additional evidence dismissed Appeal dismissed Respondents' application for leave to cross-appeal out of time dismissed
Category:	B
PDF Version

Parties:	KARL PAUL MUELLER QUE CAPITAL PTY LTD SMARTCARD FINANCIAL SERVICES PTY LTD
Catchwords:	Practice and procedure Application to adduce additional evidence on appeal Bias Alleged bias of trial judge Whether reasonable apprehension of bias by association Trial judge's brother had been a partner in an earlier emanation of the law firm which was acting for the plaintiffs at trial Earlier emanation of the law firm had drawn certain instruments on which the plaintiffs sued the defendant Whether waiver of any alleged bias Evidence Whether judge's findings supported by the evidence Findings based on credibility Deed of assignment of debt Agreement to assign contained in the recitals but not in the operative provisions of the document Principle that where in the recitals to a deed or agreement it is acknowledged that the parties have agreed to do, or will do, certain acts, a promise to do those acts will be read into the agreement in the absence of an express promise to that effect
Legislation:	Nil
Case References:	Ansett Transport Industries (Operations) Pty Limited v The Commonwealth of Australia [1977] HCA 71; (1977) 139 CLR 54 AVCO Financial Services Limited v The Commissioner of Taxation of the Commonwealth of Australia [1982] HCA 36; (1982) 150 CLR 510 AVCO Financial Services Ltd v Commissioner of Taxation [1979] 2 NSWLR 570 British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 George v Fletcher (Trustee) [2012] FCAFC 148 Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 Issa v Berisha [1981] 1 NSWLR 261 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353 Que Capital Pty Ltd v Mueller [2015] WADC 6 Saunders v The Public Trustee [2015] WASCA 203 Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MUELLER…

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] WASCA 157
Decision Date: 9/09/16

CaseChat Overview and Summary

The case of Mueller v Que Capital Pty Ltd [No 2] involved the appellant, Mr. Mueller, seeking to adduce additional evidence on appeal against the respondent, Que Capital Pty Ltd. The dispute centred around allegations of bias against the trial judge, stemming from his brother's past association with a law firm representing the plaintiffs. The appellant argued that the trial judge's impartiality was compromised by this connection, and further contended that the judge's findings were not supported by the evidence. Additionally, the appellant challenged the validity of a deed of assignment of debt, asserting that the agreement to assign was not sufficiently captured in the operative provisions of the document, despite being acknowledged in the recitals.

The legal issues before the court encompassed whether the trial judge's association with the law firm created a reasonable apprehension of bias, and if so, whether this bias had been waived. Another significant issue was whether the trial judge's findings were adequately supported by the evidence presented, particularly in terms of the credibility of the witnesses. Furthermore, the court had to determine whether the principle allowing for the reading in of promises acknowledged in the recitals of a deed into the agreement applied in this instance, despite the absence of an express promise in the operative provisions.

In addressing these issues, the court found that there was no reasonable apprehension of bias attributable to the trial judge's brother's prior association with the law firm. The court held that any potential bias had been waived by the appellant's failure to object earlier. Regarding the evidence, the court confirmed that the trial judge's findings were adequately supported and based on credibility assessments. The court also ruled that where promises are acknowledged in the recitals of a deed or agreement, those promises can be read into the agreement even if not expressly stated in the operative provisions.

The court dismissed the appellant's application to adduce additional evidence and subsequently dismissed the appeal. Furthermore, the respondents' application for leave to cross-appeal out of time was also dismissed. The court's decision upheld the findings of the trial judge and the validity of the deed of assignment as interpreted.

Orders

Orders of the court

Appellant's application to adduce additional evidence dismissed

Appeal dismissed

Respondents' application for leave to cross-appeal out of time dismissed

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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