Palmer St. Developments Pty Ltd v J and E Vanjak Pty Ltd - [2016] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

Palmer St. Developments Pty Ltd & Anor v J & E Vanjak Pty Ltd & Anor [2016] QCA 138

PARTIES:

PALMER ST. DEVELOPMENTS PTY LTD
ACN 003 146 174
(first appellant)
NEVILLE WILLIAM PARTON
(second appellant)
v
J & E VANJAK PTY LTD
ACN 158 539 943
(first respondent)
YUE HUANG
(second respondent)

FILE NO/S:

Appeal No 213 of 2016
DC No 187 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Townsville – Unreported, 27 November 2015

DELIVERED ON:

3 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2016

JUDGES:

Gotterson JA and Atkinson and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed.

2.   The judgment below is set aside.

3.   The matter is remitted to the District Court for retrial by a different judge.

4.   Prior to retrial, the matter is to be listed for directions so that matters going to pleadings and disclosure can be attended to in advance of trial.

5.   The respondents are to pay the appellants’ costs of this appeal.

6.   The costs of the first trial are to be reserved to the judge who deals with the retrial.

7.   As to the costs of this appeal, the time for bringing an application for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) is extended until 24 May 2016.

8.   The respondents are granted an indemnity certificate under s 15 of that Act.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the first respondent transferred money to the first appellant in exchange for shares in a restaurant business – where the respondents alleged that the appellants made false representations and breached the terms of the share sale agreement – where the trial judge found that both parties abandoned the contract – where the trial was not conducted on the basis that abandonment of the contract was in issue – where the issue of abandonment was not pleaded by either of the parties – whether the trial judge erred in considering whether the parties abandoned the contract – whether the evidence below was otherwise properly considered

Competition and Consumer Act 2010 (Cth)

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12, cited
Lombok Pty Ltd v Supetina Pty Ltd (1987) 14 FCR 226; [1987] FCA 62, cited
Summers v The Commonwealth (1918) 25 CLR 144; [1918] HCA 33, cited

COUNSEL:

B Porter for the appellants
The second respondent appeared on her own behalf and for the first respondent

SOLICITORS:

McDuff & Daniel Lawyers for the appellants
The second respondent appeared on her own behalf and for the first respondent

GOTTERSON JA: I agree…

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] QCA 138
Decision Date: 3 June 2016

CaseChat Overview and Summary

Palmer St. Developments Pty Ltd, the first appellant, brought an appeal against the judgment of the District Court of Queensland, in which the first respondent, J and E Vanjak Pty Ltd, the first respondent, was successful in their claim. The first respondent alleged that the first appellant had made false representations and breached the terms of a share sale agreement, which was the subject of the dispute. The first appellant argued that the trial judge had erred in considering whether the parties had abandoned the contract, a matter that had not been pleaded by either party and was not the basis of the trial.

The legal issues before the court were whether the trial judge had erred in considering whether the parties had abandoned the contract and whether the evidence below was otherwise properly considered. The court had to determine if the trial judge was correct in finding that the parties had abandoned the contract and if the trial was conducted fairly and properly. The court also needed to examine if the trial judge had made any errors of law in his findings.

The court held that the appeal was allowed, and the judgment below was set aside. The matter was remitted to the District Court for retrial by a different judge. The court found that the trial judge had erred in considering whether the parties had abandoned the contract, as it was not pleaded by either party and was not the basis of the trial. The court also found that the evidence below was not properly considered. The court ordered that prior to retrial, the matter was to be listed for directions so that matters going to pleadings and disclosure could be attended to in advance of trial. The respondents were to pay the appellants’ costs of this appeal, and the costs of the first trial were to be reserved to the judge who deals with the retrial. The time for bringing an application for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) was extended until 24 May 2016, and the respondents were granted an indemnity certificate under s 15 of that Act.

Orders

Orders of the court

1. The appeal is allowed.

2. The judgment below is set aside.

3. The matter is remitted to the District Court for retrial by a different judge.

4. Prior to retrial, the matter is to be listed for directions so that matters going to pleadings and disclosure can be attended to in advance of trial.

5. The respondents are to pay the appellants’ costs of this appeal.

6. The costs of the first trial are to be reserved to the judge who deals with the retrial.

7. As to the costs of this appeal, the time for bringing an application for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) is extended until 24 May 2016.

8. The respondents are granted an indemnity certificate under s 15 of that Act.

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:	Palmer St. Developments Pty Ltd & Anor v J & E Vanjak Pty Ltd & Anor [2016] QCA 138
PARTIES:	PALMER ST. DEVELOPMENTS PTY LTD ACN 003 146 174 (first appellant) NEVILLE WILLIAM PARTON (second appellant) v J & E VANJAK PTY LTD ACN 158 539 943 (first respondent) YUE HUANG (second respondent)
FILE NO/S:	Appeal No 213 of 2016 DC No 187 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Townsville – Unreported, 27 November 2015
DELIVERED ON:	3 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2016
JUDGES:	Gotterson JA and Atkinson and Dalton JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed. 2. The judgment below is set aside. 3. The matter is remitted to the District Court for retrial by a different judge. 4. Prior to retrial, the matter is to be listed for directions so that matters going to pleadings and disclosure can be attended to in advance of trial. 5. The respondents are to pay the appellants’ costs of this appeal. 6. The costs of the first trial are to be reserved to the judge who deals with the retrial. 7. *As to the costs of this appeal, the time for bringing an application for an indemnity certificate under the Appeal Costs Fund Act* 1973 (Qld) is extended until 24 May 2016. 8. The respondents are granted an indemnity certificate under s 15 of that Act.**
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the first respondent transferred money to the first appellant in exchange for shares in a restaurant business – where the respondents alleged that the appellants made false representations and breached the terms of the share sale agreement – where the trial judge found that both parties abandoned the contract – where the trial was not conducted on the basis that abandonment of the contract was in issue – where the issue of abandonment was not pleaded by either of the parties – whether the trial judge erred in considering whether the parties abandoned the contract – whether the evidence below was otherwise properly considered Competition and Consumer Act 2010 (Cth) DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12, cited Lombok Pty Ltd v Supetina Pty Ltd (1987) 14 FCR 226; [1987] FCA 62, cited Summers v The Commonwealth (1918) 25 CLR 144; [1918] HCA 33, cited
COUNSEL:	B Porter for the appellants The second respondent appeared on her own behalf and for the first respondent
SOLICITORS:	McDuff & Daniel Lawyers for the appellants The second respondent appeared on her own behalf and for the first respondent