Valiant Holdings (Singapore) Pte Ltd v Eutech Pty Ltd

[1995] QCA 298

IN THE COURT OF APPEAL	[1995] QCA 298
SUPREME COURT OF QUEENSLAND

Appeal No. 85 of 1994.

Brisbane

[Valiant Holdings P/L v. Eutech P/L]

BETWEEN:

EUTECH PTY LTD

Plaintiff/Respondent

AND:

VALIANT HOLDINGS (SINGAPORE) PTE LTD

First Defendant/Appellant

AND:

COLIN WARWICK MARTIN

Second Defendant/Appellant

AND:

THOMAS GEOFFREY BUDGEN

Third Defendant

AND:

JONATHAN DUNCAN

Fourth Defendant

AND:

DAVID BRICE TOY

Fifth Defendant

Appeal No. 86 of 1994.

BETWEEN:

EUTECH PTY LTD

Plaintiff/Respondent

AND:

VALIANT HOLDINGS (SINGAPORE) PTE LTD

First Defendant

AND:

COLIN WARWICK MARTIN

Second Defendant

AND:

THOMAS GEOFFREY BUDGEN

Third Defendant/Appellant

AND:

JONATHAN DUNCAN

Fourth Defendant

AND:

DAVID BRICE TOY

Fifth Defendant

__________________________________________________________________

___

Pincus J.A.

McPherson J.A.

__________________________________________________________________

___

Judgment delivered 04/07/1995

Judgment of the Court
__________________________________________________________________

___

IT IS ORDERED IN RELATION TO APPEAL NO. 85 OF 1994 THAT:

1.         THE SOLICITORS FOR THE APPELLANTS LODGE A WRITTEN REQUEST FOR PREPARATION OF A RECORD TO BE EFFECTED AS SOON AS PRACTICABLE AND UNDERTAKE TO PAY THE COSTS OF PREPARATION OF THE RECORD AND OF ANY ASSOCIATED WORK; AND

2.         AN OUTLINE OF ARGUMENT ON BEHALF OF THE APPELLANTS BE FILED AND SERVED.

3.         THE APPELLANTS GIVE SECURITY TO THE SATISFACTION OF THE REGISTRAR FOR THE RESPONDENT’S COSTS OF THE APPEAL IN THE SUM OF $6500 OR SUCH LESSER AMOUNT AS WILL TOGETHER WITH THE AMOUNT PROVIDED BY THE APPELLANT IN APPEAL NO.86 OF 1994, COME TO $6,500.

4.         IF ORDERS NUMBERS 1, 2 AND 3 ARE NOT ALL COMPLIED WITH ON OR BEFORE 18 JULY 1995, THE APPEAL IS DISMISSED WITH COSTS.

IT IS ORDERED IN RELATION TO APPEAL NO.86 OF 1994 THAT:

1.         THE SOLICITORS FOR THE APPELLANT LODGE A WRITTEN REQUEST FOR PREPARATION OF A RECORD TO BE EFFECTED AS SOON AS PRACTICABLE AND UNDERTAKE TO PAY THE COSTS OF PREPARATION OF THE RECORD AND OF ANY ASSOCIATED WORK; AND

2.         AN OUTLINE OF ARGUMENT ON BEHALF OF THE APPELLANT BE FILED AND SERVED.

3.         THE APPELLANT GIVE SECURITY TO THE SATISFACTION OF THE REGISTRAR FOR THE RESPONDENT’S COSTS OF THE APPEAL IN THE SUM OF $6,500 OR SUCH LESSER AMOUNT AS WILL TOGETHER WITH THE AMOUNT PROVIDED BY THE APPELLANTS IN APPEAL NO.85 OF 1994, COME TO $6,500.

4.         IF ORDERS NUMBERS 1, 2 AND 3 ARE NOT COMPLIED WITH ON OR BEFORE 18 JULY 1995, THE APPEAL IS DISMISSED WITH COSTS.

__________________________________________________________________

___

CATCHWORDS:	APPEALS - want of prosecution - security for costs - delay in pursuing appeals - whether implied agreement between parties that appeals need not be pursued.
Counsel:	Mr P E Hack for the applicant/respondent. Mr B J Clarke for the respondent/appellants Colin Warwick Martin and Valiant Holdings (Singapore) Pte Ltd. Mr P Baston for the respondent/appellant Thomas Geoffrey Budgen.
Solicitors:	Feez Ruthning for the applicant/respondent. Windsor Craig for the respondent/appellants Colin Warwick Martin and Valiant Holdings (Singapore) Pte Ltd. Melvin & Co. for the respondent/appellant Thomas Geoffrey Budgen.
Hearing date:	23 June 1995.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 85 of 1994.

Brisbane

Before Pincus J.A.
McPherson J.A.

[Valiant Holdings P/L v. Eutech P/L]

BETWEEN:

EUTECH PTY LTD

Plaintiff/Respondent

AND:

VALIANT HOLDINGS (SINGAPORE) PTE LTD

First Defendant/Appellant

AND:

COLIN WARWICK MARTIN

Second Defendant/Appellant

AND:

THOMAS GEOFFREY BUDGEN

Third Defendant

AND:

JONATHAN DUNCAN

Fourth Defendant

AND:

DAVID BRICE TOY

Fifth Defendant

Appeal No. 86 of 1994.

BETWEEN:

EUTECH PTY LTD

Plaintiff/Respondent

AND:

VALIANT HOLDINGS (SINGAPORE) PTE LTD

First Defendant

AND:

COLIN WARWICK MARTIN

Second Defendant

AND:

THOMAS GEOFFREY BUDGEN

Third Defendant/Appellant

AND:

JONATHAN DUNCAN

Fourth Defendant

AND:

DAVID BRICE TOY

Fifth Defendant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/07/1995

There are two appeals on foot against a judgment of Dowsett J, given in favour

of Amtron Australia Pty Ltd (formerly Eutech Pty Ltd), in a substantial sum. Two of the

defendants, Valiant Holdings (Singapore) Pte Ltd and C W Martin have instituted an

appeal against the judgment, and a third defendant T G Budgen has also instituted an

appeal. The judgment of Dowsett J was delivered on 8 April 1994 and the notices of

appeal were filed and served on 5 May 1994. No further steps have been taken to

pursue the appeals, and the applicant, the successful plaintiff below (Amtron) has

applied to have each appeal dismissed for want of prosecution, or alternatively for

security for costs.

A factual issue arises; it is argued that in a conversation between a Mr Schmidt,

of the solicitors for Amtron, and Mr Budgen on 24 August 1994, what is described as a

"moratorium" agreement was made, one term of which was that the appeals need not

be pursued; it is unclear for what period it is alleged that the appeals would not be

pursued.

An affidavit by Mr Budgen dated 22 June 1995 was read, apparently in support

of the case set up by the appellants to resist dismissal, which swore to a conversation

between Messrs Schmidt and Budgen on the relevant date, in these terms:

" On 24 August 1994 I telephoned Mr Schmidt and confirmed to him my

continued commitment ".

The commitment referred to was to assist in a certain claim against an insurer

and a broker; the sentence we have quoted could not possibly be thought to support the

proposition that any agreement was made on 24 August 1994 relieving the appellants

of an obligation to pursue the appeals expeditiously.

This having been pointed out during the hearing of the appeals, the appellants

sought to rely upon a further affidavit, being one filed on 4 May 1995 in the Federal

Court relating to bankruptcy proceedings. In that affidavit Mr Budgen gave a rather

more elaborate version of the conversation of 24 August 1994. In summary, what is

there said is that Mr Budgen telephoned Mr Schmidt and told him that he would help

with the claim against the broker "if he would agree not to bankrupt me". The affidavit

went on:

"He said 'my instructions from my client are simply to get his money back'. He told me that my assistance would make the claim much easier and he said 'I can accept that on that basis'. "

This has nothing to do with pursuit of the appeals.

It being plain enough that the affidavits so far referred to could not assist the

appellants towards a finding in their favour, in relation to the alleged moratorium,

reliance was also placed on a draft deed which, at one stage, it was contemplated that

the parties to the appeal might execute. Clause 5 of the draft deed contained an

agreement on the part of Amtron not to issue bankruptcy notices based on the judgment for a period of six months and not to seek security for costs of the appeals for a period

of six months; there is, however, nothing in the deed to say that the steps the court

ordinarily requires to be taken to pursue appeals need not be taken.

Lastly, the appellants relied upon a poor copy of what purports to be a diary note

dated 24 August 1994, said to record a discussion on that date between Messrs

Schmidt and Budgen. There is room for argument as to what the note says, but the

critical parts of it seem to be as follows: Mr Schmidt said "How can we deal if you have

appeal?". Then the note says "Accept no action on basis of help insurance claim" and

concludes "Accept on that basis".

The note does not say the appeals are not to be pursued, but it is urged upon us

in effect that an agreement that the appeals would not be pursued should be inferred or

implied. It is quite improbable that any such agreement was made. On 20 January

1995, that is, well after the date of the alleged moratorium agreement, two of the

appellants applied for a stay of proceedings under the judgment of Dowsett J, and an

affidavit of Mr Budgen was filed in support of one of those applications. It must have

been plain to those concerned that if the parties had agreed in August 1994 that no

further steps would be taken in relation to the judgment given by Dowsett J, that would

have been relevant to the question whether that judgment should be stayed. Yet that

affidavit of Mr Budgen said nothing about such an agreement; it did, however, discuss

the appeals and said in effect that there had been a conversation with the "appeal clerk

of this Honourbale (sic) Court, regarding the listing of the appeal" and that it was

arranged that the listing would be discussed further. The affidavit mentioned that a

bankruptcy notice had been served and it argued that that had been done "for reasons of defeating the defendants' appeal" which "has merit and should be allowed to

proceed". These expressions are inconsistent with the allegation that it was agreed

that the appeals should be treated as being in limbo. If that is not enough, in this

affidavit Mr Budgen also swore that he had not heard from the solicitors for the plaintiff

at any time after 2 August 1994, and prior to delivery of the bankruptcy notice (on 22

December 1994).

In these circumstances the argument that an agreement was made on 24 August

1994, one term of which was that the appeals would lie dormant, must be rejected. It

seems evident enough that the real question is whether the appeals should be struck

out or whether, on the other hand, the appellants should be given a last, limited,

opportunity to pursue them. There is, against doing so, the circumstance that an

inference is open that the appeals were begun merely to gain time; although the way in

which the matter has been conducted to date gives support to that inference, it is our

opinion that the more lenient course should be adopted. It is possible that, albeit

unreasonably, the appellants persuaded themselves that Amtron was content to let the

appeals remain dormant. It is ordered in relation to Appeal No. 85 of 1994 that:

1.         The solicitors for the appellants lodge a written request for preparation of a

record to be affected as soon as practicable and undertake to pay the costs of

preparation of the record and of any associated work; and

2.         An outline of argument on behalf of the appellants be filed and served.

3.         The appellants give security to the satisfaction of the registrar for the

respondent’s costs of the appeal in the sum of $6500 or such lesser amount as

will together with the amount provided by the appellant in Appeal No.86 of 1994,

come to $6,500.

4.         If orders numbers 1, 2 and 3 are not all complied with on or before 18 July 1995,

the appeal is dismissed with costs.

It is ordered in relation to Appeal No.86 of 1994 that:

1.         The solicitors for the appellant lodge a written request for preparation of a record

to be affected as soon as practicable and undertake to pay the costs of

preparation of the record and of any associated work; and

2.         An outline of argument on behalf of the appellant be filed and served.

3.         The appellant give security to the satisfaction of the registrar for the respondent’s

costs of the appeal in the sum of $6,500 or such lesser amount as will together

with the amount provided by the appellants in Appeal No.85 of 1994, come to

$6,500.

4.         If orders numbers 1, 2 and 3 are not complied with on or before 18 July 1995, the

appeal is dismissed with costs.