SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0098
| SPOTLIGHT PTY LTD (ACN 005 180 861) | |
| Applicant | |
| v | |
| NCON AUSTRALIA (ARBN 099 019 851) | Respondent |
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JUDGES: | MANDIE and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 02 September 2011 | |
DATE OF JUDGMENT: | 02 September 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 267 | |
JUDGMENT APPEALED FROM | ||
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PRACTICE AND PROCEDURE - Application for leave to appeal - Trial judge granted plaintiff leave to reopen case and call further evidence on the question of damages after the case had closed and judgment had been reserved - Leave to appeal granted
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R M Garratt QC Ms R B Sion | Cornwall Stodart |
| For the Respondent | Mr M Heaton QC Dr M Sharpe | Philip Jones & Co |
MANDIE JA:
The applicant (‘Spotlight’) seeks leave to appeal from interlocutory orders of Robson J whereby the respondent (‘NCON’), the plaintiff below, was permitted to reopen its case and adduce further evidence on the question of damages.
The background to the matter is that in November 2007 NCON entered into a services agreement and a rental agreement with Spotlight in respect of energy-saving light devices to be installed by NCON in Spotlight’s stores. NCON claimed that Spotlight had committed breaches of the rental agreement and it also claimed, among other things, that Spotlight had repudiated both agreements.
On 10 August 2009 NCON filed a writ seeking damages for breach of the rental agreement. I do not purport to set out in detail the various claims made by NCON. The proceeding was fixed for trial which commenced on 14 February 2011 and ran for 12 days. The judge directed that the evidence (apart from expert evidence) be given wholly viva voce and not by witness statement although witness statements had been prepared in accordance with earlier court orders.
At the trial there were significant disputes on the evidence in relation to issues of contractual formation, repudiation and termination. There were substantial written outlines of submissions after the close of evidence. Spotlight’s written outline comprised 40 pages. In those submissions Spotlight said that NCON had claimed loss of profits by its amended statement of claim but, in its amended particulars of loss and damage, had claimed for ‘loss of revenue’ and not ‘loss of profit’. The submission said that NCON had presented no evidence in chief to sustain a loss of profit claim and that no evidence was given of NCON’s costs and, therefore, ‘it is pure speculation that there was any net profit in the deal’. In the course of making that submission, Spotlight also pointed out that NCON was ‘a company of no means.’
A transcript (dated 1 March 2011) of Spotlight’s oral argument on damages shows that Spotlight made further contentions in line with its written submissions on the question of the proofs necessary to show a loss of net profits.
A further transcript of the same date of NCON’s oral argument on damages…
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- Case
- [2011] VSCA 267
- Decision Date
CaseChat Overview and Summary
The key legal issue before the court was whether the trial judge had correctly exercised their discretion in granting leave for the plaintiff to reopen the case and call further evidence on the question of damages. The court was tasked with determining whether the trial judge had acted within their powers under the rules of court and if the decision was reasonable and just. Specifically, the court needed to assess whether the plaintiff's application for reopening the case was made promptly, whether there was good cause for the delay, and whether the additional evidence would likely affect the outcome of the case.
The court found that the trial judge had appropriately exercised their discretion in granting leave to the plaintiff to reopen the case. The trial judge's decision was deemed to be within the bounds of the court's powers and was reasonable, given the circumstances of the case. The court recognised that the plaintiff's application was made promptly, and there was good cause for the delay in presenting the additional evidence. The court also concluded that the additional evidence had the potential to impact the outcome of the case, particularly in relation to the assessment of damages. Consequently, the court granted leave to the plaintiff to appeal the decision.
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Evidence
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Decision
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