MW Group Pte Ltd v MW Group (Brisbane) Pty Ltd

[2012] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

MW Group Pte Ltd v MW Group (Brisbane) Pty Ltd & Anor [2012] QCA 242

PARTIES:

MW GROUP PTE LTD
(applicant)
v
MW GROUP (BRISBANE) PTY LTD
ACN 103 887 305
(first respondent)
ROBERT KIM WILMOT
(second respondent)

FILE NO/S:

Appeal No 1930 of 2012
DC No 906 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2012

JUDGES:

Margaret McMurdo P, Muir and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application for leave to adduce further evidence is refused.

2.    The application for extension of time is refused.

3.    The applicant, MW Group Pte Ltd, pay the respondents’ costs of and incidental to the application to be assessed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the applicant sought leave to adduce further evidence – where documentary evidence the subject of the application was not shown to have been prepared by the second respondent nor negate evidence given by said respondent – where this evidence did not contradict any evidence given by the second respondent – whether any special ground for receipt of this evidence under the r 766(1)(c) UCPR established

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where joint venture and franchise agreement entered between the parties – where respondent advanced monies to the applicant – where agreement abandoned – where judge below ordered the applicant repay the money advanced – whether learned primary judge erred in finding that the joint venture agreement had been mutually abandoned and discharged

Creswick v Creswick [2011] QCA 66, applied
Maschinenfabrik Augsburg-Nurenburg Aktiengesellschaft v Altikar Pty Ltd [1984] 3 NSWLR 152, cited
Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97; (1993) 114 ALR 568; [1993] FCA 169, cited

COUNSEL:

L A Stephens for the applicant
M Van der Walt for the respondents

SOLICITORS:

PPCS Lawyers for the applicant
Frews Solicitors for the respondents

1. MARGARET McMURDO P: This application for an extension of time to apply for leave to appeal and to adduce further evidence should be refused with costs for the reasons given by Gotterson JA.  I agree with the orders proposed by his Honour.

1. MUIR JA: I agree that the application should be refused with costs for the reasons given by Gotterson JA.

1. GOTTERSON JA:  By an application filed on 2 March 2012, the applicant, MW Group Pte Ltd (“MW Pte”) has applied for a number of orders.  They relate to proceedings No BD 906 of 2005 in the District Court at Brisbane in which MW Pte is the first defendant, the other defendant being Mark Wheeler, a director of that company.  The first plaintiff in those proceedings is MW Group (Brisbane) Pty Ltd (“MW Brisbane”), the second plaintiff being Robert Kim Wilmot, a director of MW Brisbane.  Mr Wheeler is also a director of MW Brisbane.  He and Mr Wilmot hold equal shareholding interests in MW Brisbane.

1. MW Brisbane was incorporated in February 2003 as a joint venture vehicle for establishing and operating a calibration laboratory in the Brisbane area under franchise agreements with MW Pte.  It is a Singaporean company which had, for some time, conducted a successful business of testing calibration instruments and hiring calibration equipment in that jurisdiction. 

The proceedings in BD 906 of 2005

1. These proceedings concerned a joint venture agreement entered into between Mr Wilmot and MW Pte and franchise agreements entered into between MW Brisbane and MW Pte respectively, to implement the joint venture.  Put very shortly, the plaintiff interests claimed in the proceedings that both agreements had been mutually abandoned and that money that Mr Wilmot had paid to MW Pte for the purpose of the agreements, or its equivalent in damages, ought to be paid to him on a range of contractual, restitutionary, and trust bases.  The defendant parties counterclaimed for damages for breach of the agreements and for payment of a sum of money for having provided training to Mr Wilmot.

1. A trial took place over two days in August 2010.  In detailed reasons published on 29 April 2011, the learned Judge declared that the joint venture agreement and the franchise agreements had been mutually abandoned and discharged.  He also indicated that he was prepared to order that MW Pte pay Mr Wilmot a sum of $S113,881.35 and an amount of $A8,922.91 in respect of the money claimed.  The counterclaim was dismissed.  Formal orders dated that day making the declaration and dismissing the counterclaim were made.  The proceedings were adjourned for submissions as to the form of the money judgment and as to costs. 

1. Pending the hearing of submissions on those matters, the defendant parties filed an application in those proceedings seeking an order under r 668 UCPR that the orders made on 29 April 2011 be set aside and for a direction that further issues of fact be tried and decided. In support of that application, the applicants filed an affidavit of Mr Wheeler which exhibited photographs of certain equipment and an affidavit of Supiyah Wheeler which exhibited certain purchase orders, invoices and bank statements showing a total expenditure by MW Pte on equipment of $S105,540.94. Ms Wheeler swore that the equipment to which those documents relate had been purchased for the franchise. The basis of the r 668 application was that the defendant parties wished to put that additional evidence before the Court.

1. On 20 June 2011, the learned Judge heard argument on the application and other issues that, on 29 April 2011 had been adjourned for further submissions. In reasons given and published that day, the learned Judge dismissed the application with costs. He considered that r 668 was inapplicable to the circumstances. He observed:

“Accepting the affidavit evidence at its face value, the knowledge of the presence of the equipment in Singapore was obviously available to Mr Wheeler prior to the trial. Indeed, he gave evidence that the equipment was in Singapore. I didn't believe that evidence. What he is now seeking to do is simply to put forward additional material with a view to making that evidence more - with a view to supporting the credibility of what he said on that occasion. The same applies to the material that was exhibited to the other affidavit.

There is nothing in the affidavit to indicate that if someone had made an effort to search out this material prior to the trial, this material would not have been available and would not have been there to be ‘discovered’. The fact that material has not been searched out in a timely way is not a reason - is not the circumstance which falls within Rule 668(1)(b). This is simply a situation where a party, having run the trial on a particular basis and with limited evidence on a particular point is now seeking to supplement that evidence by putting before the Court additional evidence in support of that point which, in principal - which, obviously, was available to the defendants at the relevant time, except that they did not foresee its significance.”[1]

[1]Appeal Book 847 L40-848 L30.

1. The learned Judge gave reasons in respect of the currencies in which judgment for the money sums should be entered and the rate at which interest to the date of judgment should be calculated.  He allowed interest at 9 per cent per annum for seven and a half years.  This rate was selected by the learned Judge by reference to Practice Direction No 2 of 2002 which set a rate of 9 per cent per annum from 1 April 2002 for interest on money judgments.  (That rate had been increased to 10 per cent per annum from 1 July 2007 by Practice Direction No 6 of 2007.)

1. Conformably with those reasons, formal orders dated 20 June 2011 were made that MW Pte pay Wilmot the sum of $14,945.87 including $6,022.96 by way of interest, and $S190,751.26 including $S76,869.91 by way of interest, or the equivalent in $A at the date of payment.  MW Pte was ordered to pay the plaintiff’s costs of the action and the counterclaim to be assessed.  No order was made in respect of Mr Wheeler’s costs. 

First application for extension of time

1. On 27 May 2011, MW Pte and Mr Wheeler filed an application in this Court seeking an extension of time within which to apply for leave pursuant to s 118(3) of the District Court of Queensland Act 1967 to appeal the orders made on 29 April 2011. This application initiated proceedings CA 4529 of 2011.

1. Those proceedings were dismissed by consent on 19 August 2011, the applicants agreeing to pay the respondents’ costs fixed at $1,200.  In an affidavit sworn on 20 July 2012 in the current proceedings, Mr Wheeler has deposed to a number of circumstances which, he states, caused the applicants to take that course.  It is unnecessary to detail them.  It may be noted that the application as formulated would not have availed the applicants.  No extension of time was sought to apply for leave to appeal the orders of 20 June 2011 and it is they that require the payment of money and of costs.

The current application for an extension of time

1. The current proceedings in this Court were commenced by an application filed on 2 March 2012. The sole applicant is MW Pte. An extension of time is sought for applying for leave to appeal and for appealing against both the orders made on 29 April 2011 and the orders made on 20 June 2011. The applicant also seeks leave to adduce further evidence under r 766(1)(c) UCPR.

1. A proposed Notice of Appeal is attached to the application.  That document lists some nine grounds of appeal.

1. This Court has recently affirmed that an application for an extension of time in which to appeal:

“… must show that strict compliance with the rules will work an injustice, having regard to the circumstances including the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application, and the prospects of the applicant succeeding in the appeal.”[2]

Like considerations apply to an application for an extension of time to apply for leave to appeal. 

[2]Creswick v Creswick [2011] QCA 66 at [15].

1. Whilst the simple facts that this is an application made after a similar one had been dismissed by consent and that it is made many months after the appeal period set by the UCPR had expired do call for a cautious approach to be taken to it, a critical consideration here is whether the proposed grounds of appeal have any prospects of success.  I now turn to consider them.

Grounds of appeal

1. Ground 1 is a generalised allegation of error in finding that MW Pte owed Mr Wilmot the amounts it has to pay him under the order.  Grounds 2, 3 and 4 relate to findings made in respect of purchase of the equipment to which reference has been made.  Ground 5 is that the learned Judge erred in finding that the joint venture agreement had been mutually abandoned.  No submissions were made on behalf of the applicant at the hearing of the application in support of Grounds 6 and 7.  Grounds 8 and 9 relate to interest. 

1. The unparticularised error to which Ground 1 is addressed appears to be one which arises from those set out in Grounds 2 to 5.  That is to say, the applicant contends that because those errors were made, the learned Judge concluded, in error, that moneys were to be paid by MW Pte to Mr Wilmot.  No additional error was identified. 

1. At the hearing of the application, counsel for the applicant presented argument first in relation to Ground 5.  The Court was told that the applicant wished to appeal against the finding and the declaration that the joint venture had been mutually abandoned and discharged. 

1. For the purpose of presenting an argument as to error in that finding, the applicant sought leave under r 766(1)(c) of the UCPR to adduce evidence by way of a second affidavit sworn by Mr Wheeler on 20 July 2012 to which was exhibited a document which he described as being Mr Wilmot’s resume.  In a further affidavit sworn on 23 July 2012, Mr Wheeler states that he obtained the resume document from a recruitment manager of Mr Wilmot’s current employer in Thailand.  He states that he was unaware of the document until May 2012. 

1. The applicant’s objective in seeking leave to adduce this evidence was explained as one of proving that at the time when he should have been applying himself to the joint venture, Mr Wilmot was in fact working elsewhere.  As proof of that fact, the document is deficient.  In the first place, it is not shown to be one prepared by Mr Wilmot himself.  Secondly, even if it is factually accurate, it does not contradict any evidence given by Mr Wilmot.  Nor does it negate that Mr Wilmot may have been working concurrently on joint venture business.  Moreover, its relevance to issues on the pleadings is not established: there was no allegation that Mr Wilmot had not applied himself to the business of the joint venture.  Those matters aside, the applicant’s evidence is silent as to when the document came into existence.  Nor does it establish that had due enquiry been made, the document could not have been accessed at the time of the trial. 

1. The applicant also sought to attach relevance to the resume document in one other respect.  It was said that it went towards proving that Mr Wilmot had obtained a valuable benefit from skills training by the applicant for the joint venture business such as would preclude a determination that the moneys paid by Mr Wilmot were recoverable by him for a total failure of consideration.  That approach, too, has apparent difficulties.  There was no allegation in the pleadings that Mr Wilmot had so benefitted.  In any event, it was common ground that the moneys were paid by Mr Wilmot to MW Pte expressly for the purchase by it of equipment for the joint venture, and not for training. 

1. The applicant has not established any special ground for receipt of this evidence as r 766(1)(c) requires. Having regard to the matters to which I have referred, I consider that the application that it be received must be refused.

1. The other evidentiary matter to which the applicant referred in order to advance Ground 5 arises out of Grounds 2, 3 and 4, which challenge the learned Judge’s finding that MW Pte had not used the money Mr Wilmot had paid it to purchase equipment for the joint venture.  The applicant has not demonstrated that, on the evidence before him, that finding was not open to the learned Judge.  In essence, the applicant’s point was that had the evidence which the learned Judge refused leave to adduce been adduced before him, then the finding he did make would have been one that was not open to him to make.

1. The applicant has not sought to challenge the learned Judge’s refusal of leave to adduce that evidence.  During the hearing of this application, counsel was taken to the learned Judge’s reasons for refusal and requested to identify what error, if any, was said to infect them.  None was identified.

1. Furthermore, the applicant has not sought to adduce that same evidence before this Court under r 766(1)(c). That may well be explained by a realistic appreciation that such an application would fail for reasons similar to those given by the learned Judge.

1. In consequence, Grounds 2, 3 and 4 lack the foundation from which the appellant has sought to develop them.

1. For these reasons, I consider that Grounds 1 to 5 have no reasonable prospects of success.  As noted, Grounds 6 and 7 were not pressed.  They, too, appear to have no reasonable prospects of success. 

Interest

1. The applicant submitted that the learned Judge erred in awarding interest upon the $S component of the money judgment by reference to a local rate of interest.  Reference was made to the decision of Rogers J in Maschinenfabrik Augsburg-Nurenburg Aktiengesellschaft v Altikar Pty Ltd,[3] in which his Honour expressed the view that prima facie, it is incorrect to apply to a judgment expressed in foreign currency rates of interest determined by reference to local conditions.[4]  His Honour did not, however, propound that, as a matter of law, interest could only be awarded at rates prevailing in the jurisdiction of the particular foreign currency. 

   [3][1984] 3 NSWLR 152.

   [4]At 153E.

1. Here, no evidence was tendered to the learned Judge of prevailing interest rates in Singapore during the relevant period.  That did not have the consequence of depriving him of jurisdiction to award interest.  In default of such evidence, it was open to him in the exercise of the attendant jurisdiction to award interest by reference to the Practice Direction rate for interest on money judgments in Queensland.  Reference to such a rate for awarding interest on a money judgment has local precedent[5] and is comfortably within discretionary bounds.

   [5]Smallacombe v Lockyer Investment Co Pty Ltd (1993) 114 ALR 568.

1. Therefore, in my view, Grounds 8 and 9 have no reasonable prospects of success.

Disposition

1. None of the applicant’s proposed grounds of appeal has any real prospect of success.  That circumstance predicates forcefully that an application for leave to appeal on those grounds would fail.  To extend time to apply for such leave here would have no practical utility.  It should not be granted.

Proposed orders

1. I would order that:

1.    That the application for leave to adduce further evidence is refused.

2.    The application for extension of time be refused;

3.    The applicant, MW Group Pte Ltd, pay the respondents’ costs of and incidental to the application to be assessed.