SUPREME COURT OF QUEENSLAND
CITATION:
Northbuild Constructions P/L v Discovery Beach Project P/L [2009] QCA 345
PARTIES:
NORTHBUILD CONSTRUCTIONS PTY LTD
ACN 011 063 764
(plaintiff/appellant)
v
DISCOVERY BEACH PROJECT PTY LTD
ACN 100 500 981
(defendant/respondent)FILE NO/S:
Appeal No 5115 of 2009
SC No 3756 of 2005DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
3 November 2009
DELIVERED AT:
Brisbane
HEARING DATE:
7 October 2009
JUDGE:
McMurdo P and Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court,each concurring as to the orders made
ORDERS:
1. The appeal is allowed with costs to be assessed on the standard basis.
2. The order of the primary judge is set aside and instead it is ordered that the appellant have leave to use:
(a)the financial statements and records provided by the respondent in proceeding BS 3756 of 2005 (pursuant to the order of Martin J on 26 November 2008);
(b) the instructions given by the respondent's directors to Mr Bell QC in November 2006;
(c)Mr Bell QC's advice to the respondent dated 29 November 2006; and
(d) the affidavits filed in proceeding BS3756 of 2005, together with their exhibits (with the exception of the two affidavits of Lloyd Sydney Nash filed on 16 and 24 February 2009, which were sealed by an order of White J on 24 February 2009)
for the purpose of cross-examination of witnesses as to credit in an expert determination between the appellant and the respondent known as the Category 1 dispute.
3. The parties' costs of and incidental to the application before the primary judge on 6 April 2009 are reserved.
CATCHWORDS:
APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF THE COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – the appellant obtained an interim freezing order against the respondent with an undertaking that it "not publish the terms or substance of this order to any person" – the appellant sought an order releasing it from this undertaking and to cross-examine respondent witnesses by raising matters in the documents – the trial division judge dismissed the application – the judge found that the documents in question would not be amenable to subpoena – whether the trial judge was mistaken in finding that the documents were not amenable to subpoena – whether the special circumstances warranted the appellant's release from its undertaking – whether the appeal should be allowed
Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85, cited
Ainsworth v Hanrahan (1991) 25 NSWLR 155, cited
Alterskye v Scott (1948) 1 All ER 469, cited
British American Tobacco Ltd v Cowell (No 2) (2003) 8 VR 571; [2003] VSCA 43, considered
Crest Homes Plc v Marks [1987] AC 829, cited
Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613, cited
Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10; [1995] HCA 19
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- Case
- [2009] QCA 345
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge was mistaken or misled in finding that the documents were not amenable to subpoena, and whether the special circumstances warranted Northbuild's release from its undertaking. The court also considered whether the appeal should be allowed. The court examined the nature of the documents and the circumstances in which they were obtained and whether they were relevant to the issues in the Category 1 dispute between the parties.
The court found that the primary judge was mistaken in finding that the documents were not amenable to subpoena. The court held that the documents were indeed relevant to the issues in the Category 1 dispute and could be used for the purpose of cross-examining witnesses as to credit in an expert determination. The court also found that the special circumstances warranted Northbuild's release from its undertaking. The appeal was allowed with costs to be assessed on the standard basis. The order of the primary judge was set aside, and Northbuild was granted leave to use the relevant documents for the purpose of cross-examining witnesses as to credit in the Category 1 dispute.
Orders
Orders of the court
1. The appeal is allowed with costs to be assessed on the standard basis.
2. The order of the primary judge is set aside and instead it is ordered that the appellant have leave to use:
(a)the financial statements and records provided by the respondent in proceeding BS 3756 of 2005 (pursuant to the order of Martin J on 26 November 2008);
(b) the instructions given by the respondent's directors to Mr Bell QC in November 2006;
(c)Mr Bell QC's advice to the respondent dated 29 November 2006; and
(d) the affidavits filed in proceeding BS3756 of 2005, together with their exhibits (with the exception of the two affidavits of Lloyd Sydney Nash filed on 16 and 24 February 2009, which were sealed by an order of White J on 24 February 2009)
for the purpose of cross-examination of witnesses as to credit in an expert determination between the appellant and the respondent known as the Category 1 dispute.
3. The parties' costs of and incidental to the application before the primary judge on 6 April 2009 are reserved.
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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