Way v Primo Rossi Pty Ltd - [2018] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

Way & Anor v Primo Rossi Pty Ltd & Anor [2018] QCA 203

PARTIES:

LINDA JOY WAY
(first applicant)
WAY & SMYTH FORTUNE PTY LTD
ACN 073 062 209
(second applicant)
v
PRIMO ROSSI PTY LTD
ACN 010 001 055
(first respondent)
TIMOTHY FREDERICK TRITTON
(second respondent)

FILE NO/S:

Appeal No 9155 of 2017
DC No 376 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport – Unreported, 11 August 2017 (Muir DCJ)

DELIVERED ON:

31 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2018

JUDGES:

Morrison and Philippides JJA and Brown J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the orders of the primary judge dated 11 August 2017, save for paragraph 3 of her Honour’s orders.

4.   Order that the appellants be granted leave under r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) to take a further step in the proceeding.

5.   Order that the respondents pay the appellants’ costs of and incidental to the appeal to be assessed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – where the appellants issued proceedings in November 2013 for various causes of action arising from a purported agreement for the sale of an interest in a business – where the appellants in August 2016 issued a notice of intention to proceed under rule 389(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the appellants subsequently applied for leave to proceed, but contended that they did not, on the proper construction of r 389(2) of the UCPR, have to seek such leave – where the primary judge found that the appellants were required to seek leave to proceed – where the primary judge determined not to allow the appellants to proceed and dismissed the proceedings pursuant to r 280 of the UCPR – where the appellants argue that the primary judge gave too much weight in the question of prospects of success to the causes of action which required a valuation of the business – where the respondents submit that the primary judge was correct to refuse leave, given the appellants’ poor prospects of success, delay and the prejudice to the respondents – whether there is an error by the primary judge – whether an appeal is necessary to correct a substantial injustice to the applicant

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where discretion is to be re-exercised by the Court of Appeal – where considerations in Tyler v Custom Credit Corp are applicable – whether leave to proceed should be granted under r 389

District Court of Queensland Act 1967 (Qld), s 118
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 280, r 389(1), r 389(2)

Allianz Australia Insurance…

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: [2018] QCA 203
Decision Date: 31 August 2018

CaseChat Overview and Summary

The appeal in Way v Primo Rossi Pty Ltd involves the appellants, who initiated proceedings in November 2013, asserting various claims stemming from an alleged agreement for the sale of a business interest. The respondents opposed the proceedings, arguing the appellants' claims were without merit and had been pursued with undue delay. In August 2016, the appellants notified their intention to proceed under rule 389(1) of the Uniform Civil Procedure Rules 1999 (Qld), but the primary judge required leave under rule 389(2), which the appellants contested. The primary judge ultimately denied leave and dismissed the proceedings under rule 280 of the UCPR, prompting the appellants to appeal on the grounds that the judge overemphasized the valuation-related causes of action in assessing the prospects of success.

The legal issues before the court were whether the primary judge correctly required the appellants to seek leave to proceed and if the refusal to grant such leave constituted an error warranting an appeal. The court needed to consider whether the primary judge's decision was influenced by the appellants' delay, the quality of their evidence, and the prospects of success, especially concerning the valuation of the business. Additionally, the court had to determine if the refusal of leave to proceed was justified by the respondents' argument of prejudice and if the primary judge's decision caused a substantial injustice that necessitated an appeal.

The court, after reviewing the arguments, concluded that while the primary judge's concerns about delay and evidence quality were valid, the dismissal of the proceedings was not justified given the potential for resolving the matter without time-bar issues. The court found that leave to proceed should be granted for the entire claim, not just the contractual one. The decision to grant leave to appeal, allow the appeal, and set aside the primary judge's orders, except for paragraph 3, was made. The court ordered the respondents to pay the appellants' costs of the appeal, to be assessed.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the orders of the primary judge dated 11 August 2017, save for paragraph 3 of her Honour’s orders.

4. Order that the appellants be granted leave under r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) to take a further step in the proceeding.

5. Order that the respondents pay the appellants’ costs of and incidental to the appeal to be assessed.

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

While her Honour’s criticisms of the appellants as to their delay were well founded, as were the deficiencies in the evidence presented said to support the valuation of the business, given that the matter will not be resolved by ordering that the proceedings be dismissed as the action of the appellants would not appear to be time-barred, I consider that leave to proceed should be given in relation to the whole of the appellants’ claim, not only the contractual claim.Conclusion I would grant leave to appeal, allow the appeal and set aside the orders of the primary judge dated 11 August 2017, save for paragraph 3 of her Honour’s orders. I would order that the appellants be granted leave under r 389(2) of the UCPR to take a further step in the proceeding. There is no reason that costs should not follow the event and I would order that the respondents pay the appellants’ costs of and incidental to the appeal to be assessed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Way & Anor v Primo Rossi Pty Ltd & Anor [2018] QCA 203
PARTIES:	LINDA JOY WAY (first applicant) WAY & SMYTH FORTUNE PTY LTD ACN 073 062 209 (second applicant) v PRIMO ROSSI PTY LTD ACN 010 001 055 (first respondent) TIMOTHY FREDERICK TRITTON (second respondent)
FILE NO/S:	Appeal No 9155 of 2017 DC No 376 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Southport – Unreported, 11 August 2017 (Muir DCJ)
DELIVERED ON:	31 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2018
JUDGES:	Morrison and Philippides JJA and Brown J
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the orders of the primary judge dated 11 August 2017, save for paragraph 3 of her Honour’s orders. 4. *Order that the appellants be granted leave under r 389(2) of the Uniform Civil Procedure Rules* 1999 (Qld) to take a further step in the proceeding. 5. Order that the respondents pay the appellants’ costs of and incidental to the appeal to be assessed.**
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – where the appellants issued proceedings in November 2013 for various causes of action arising from a purported agreement for the sale of an interest in a business – where the appellants in August 2016 issued a notice of intention to proceed under rule 389(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the appellants subsequently applied for leave to proceed, but contended that they did not, on the proper construction of r 389(2) of the UCPR, have to seek such leave – where the primary judge found that the appellants were required to seek leave to proceed – where the primary judge determined not to allow the appellants to proceed and dismissed the proceedings pursuant to r 280 of the UCPR – where the appellants argue that the primary judge gave too much weight in the question of prospects of success to the causes of action which required a valuation of the business – where the respondents submit that the primary judge was correct to refuse leave, given the appellants’ poor prospects of success, delay and the prejudice to the respondents – whether there is an error by the primary judge – whether an appeal is necessary to correct a substantial injustice to the applicant APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where discretion is to be re-exercised by the Court of Appeal – where considerations in Tyler v Custom Credit Corp are applicable – whether leave to proceed should be granted under r 389 District Court of Queensland Act 1967 (Qld), s 118 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 280, r 389(1), r 389(2) Allianz Australia Insurance…