Renton & Anor v Bressington - [2000] QCA 225

[2000] QCA 225

COURT OF APPEAL

de Jersey CJ
McMURDO P
DUTNEY J

Appeal No 10122 of 1999

ALLAN RENTON and
BEVERLEY LOW Appellants (Plaintiffs)

and

KENNETH PATRICK BRESSIGNTON
(BRESSINGTON & PARTNERS) First Respondent
(First Defendant)

and

COUNCIL OF THE CITY OF ROCKHAMPTON Second Respondent
(Second Defendant)

BRISBANE

..DATE 17/05/2000

JUDGMENT

THE CHIEF JUSTICE: When the matter first came before the learned Central Judge on 26 July last year, the male appellant appeared without legal representation. The Judge adjourned the matter then. When it next came on on 6 September last year the appellants were represented by a solicitor, appearing albeit it on an honorary basis. Substantial material was then put before the Judge.

Now on appeal the appellants seek to rely in addition on a mass of other documentation collected together in a volume provided to us entitled, “Record of Proceedings – Disputed Documents”. The appellants must seek the leave of the Court before they may now rely on such additional material.

It is accepted that leave should ordinarily not be granted in such circumstances unless the appellants could not, with reasonable diligence, have presented the material at the primary hearing and unless, if then presented, it would likely have, in this case, led to the dismissal of the application for dismissal for want of prosecution.

This material was available at the time of the first hearing. It may not have been in the physical possession of the appellants but there were steps which could have been taken by the appellants to place it before the learned Judge. As to the second matter, as Mr Forde conceded, most of the material covers, if in greater detail, matters already covered by material before the learned Judge. It seems that it would be difficult, therefore, to conclude that this additional material, even if admitted, would likely have produced a different result.

Neither prerequisite for the granting of leave is therefore satisfied and I have the authority of the other Judges constituting this Bench to announce therefore that leave is not granted.
. . .
THE CHIEF JUSTICE: The appellants appeal against the learned Judge’s order that the action, in which the appellants are the plaintiffs, be dismissed for want of prosecution. The respondents are respectively the appellants’ former solicitors and the Rockhampton City Council.

The first respondent solicitors acted for the appellants in their purchase of a block of flats. The appellants entered into the contract on 13 September 1990 and completed it on 26 October 1990. Claims in negligence against the respondents revolve about alleged deficiencies in the property affecting its registrability as flats.

In broad terms, the appellants contend that the first respondent solicitors, made aware by the relevant council inspector of subsidence especially, failed prior to settlement to alert the appellants to that circumstance and of an arguable right to terminate the contract because a Certificate of Registration has not been furnished; and the council, aware months before settlement of deficiencies in the property, failed to advise 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.

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Details

Case: [2000] QCA 225
Decision Date: 17/05/2000

CaseChat Overview and Summary

In Renton & Anor v Bressington, the appellants, Allan Renton and Beverley Low, appealed against the order of the Central Judge that their action be dismissed for want of prosecution. The respondents were Kenneth Patrick Bressington, the appellants' former solicitors, and the Rockhampton City Council. The appellants had purchased a block of flats from the respondents and alleged that the property had deficiencies affecting its registrability as flats. The appellants claimed that the respondents failed to alert them to these deficiencies and that the council failed to inform them about the deficiencies in response to their inquiry.

The court was required to decide whether the learned Judge erred in dismissing the entire claim, whether there was a perception of bias by the Judge, and whether there were factual errors in the Judge's reasons. The court also had to assess the learned Judge's exercise of discretion in balancing competing considerations.

The court found that the appellants' appeal was without substance as the Judge had clearly informed them that both respondents sought dismissal of the action. The court also found that the Judge had considered and rejected the perception of bias raised by the appellants. The court rejected the appellants' argument that the Judge should have disqualified himself due to a close association with the first respondent. The court found that the Judge's reasons for judgment did not contain any factual errors and that the Judge had approached the assessment in an orthodox way. The court found that the learned Judge had not erred in principle and that the appellants' delay in prosecuting their claim had prejudiced the prospect of a fair trial. The court found that the Judge's exercise of discretion was not impermissible.

The court dismissed the appeal with costs, including reserved costs to be assessed. The President and Dutney J agreed with the Chief Justice's decision.

Orders