Spotlight Pty Ltd v NCON Australia - [2011] VSCA 267

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	[2011] VSC 100

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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…

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: [2011] VSCA 267
Decision Date: 02 September 2011

CaseChat Overview and Summary

In the matter of Spotlight Pty Ltd versus NCON Australia, the primary focus of the case was a dispute concerning the reopening of the plaintiff's case to present additional evidence regarding damages after the trial had concluded and judgment had been reserved. The case was heard in the Supreme Court of Victoria, where the plaintiff, Spotlight Pty Ltd, sought leave to appeal a decision made by the trial judge.

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.

Orders