Yarwood (Deceased) v Smith - [2020] QSC 89

SUPREME COURT OF QUEENSLAND

CITATION:

Yarwood (Deceased) v Smith [2020] QSC 89

PARTIES:

MICHAEL DERMOTT YARWOOD

(Plaintiff)

v
JOSEPH WILLIAM SMITH

(Defendant)

v

MIAMI MOTORS PTY LTD ACN 009 812 266

(Plaintiff by Counterclaim)

FILE NO/S:

BS 5866 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application filed 8 April 2020

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

On the papers

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2020

JUDGE:

Jackson J

ORDER:

The order of the Court is:

1.   The defendant Joseph William Smith and the plaintiff by counterclaim Miami Motors Pty Ltd and their solicitors are released from the implied undertaking to the Court not to use the documents comprised in the Affidavit of Michael Dermott Yarwood filed 6 November 2018 for any purpose other than in this proceeding.

2.   Paragraph 5A of the order of Douglas J made on 25 September 2018 is vacated.

3.   The said documents may be used by the defendant and plaintiff by counterclaim in relation to proceedings to be started by them against David Allan Evans in this Court

4.   Mr Christopher John Garlick is permitted to have access to the said documents.

CATCHWORDS:

PROCEDURE– CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS–DISCOVERY AND INTERROGATORIES– DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS– UNDERTAKINGS AND USE OF DOCUMENTS– RELEASE FROM IMPLIED UNDERTAKING– where the defendant and the plaintiff by counterclaim intend to start a further proceeding in this Court– where the defendant and plaintiff by counterclaim applied for orders that would relieve them of their implied undertakings to the Court not to use to use the documents comprised in the Affidavit of Michael Dermott Yarwood filed 6 November 2018 other than for the purposes of this proceeding – where they also applied to vary or vacate part of an order made on 25 September 2018 that does not permit Mr Garlick to have access to the documents – where the plaintiff consents to the proposed use and access– where the court released the defendant and plaintiff by counterclaim of their implied undertaking to the Court– where the Court ordered that the part of the 25 September 2018 order that restricted access be vacated.

Bankruptcy Act 1966 (Cth), Part 11

Powers of Attorney Act 1998 (Qld)

Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Hearne v Street (2008) 235 CLR 125
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Minister for Education v Bailey (2003) 23 WAR 149

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

COUNSEL:

J Matthews for the defendant and plaintiff by counterclaim

SOLICITORS:

QBM Lawyers for the defendant and plaintiff by counterclaim

JACKSON J: The plaintiff in the proceeding brought the claim against the defendant claiming the sum of $1,949,062.05 under an agreement in writing described as the Management and Administrative Services Agreement made 17 January 2017 as varied by a written Deed of Variation dated 17 October 2017. The statement of claim alleges that the defendant terminated the agreement…

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.

Continue reading Yarwood (Deceased) v Smith

Details

AGLC: Yarwood (Deceased) v Smith [2020] QSC 89
Case: [2020] QSC 89
Decision Date: 22 April 2020

CaseChat Overview and Summary

In the case of Yarwood (Deceased) v Smith, the court was called upon to address applications related to the discovery of documents and the use of those documents in future proceedings. The matter involved the deceased plaintiff, Michael Dermott Yarwood, and the defendant, Joseph William Smith. Additionally, Miami Motors Pty Ltd, the plaintiff by counterclaim, was also a party to the dispute. The parties sought orders to release them from their implied undertakings to the court regarding the use of specific documents and to modify access to those documents.

The primary legal issues before the court were whether the defendant and the plaintiff by counterclaim could be released from their implied undertakings to the court, which restricted the use of certain documents to the current proceedings only. They also sought to vary or vacate a part of a previous order that limited access to those documents. The plaintiff consented to the proposed use and access of the documents in question.

The court determined that the parties should be released from their implied undertakings, allowing them to use the documents in any future proceedings they intended to commence against David Allan Evans in the same court. The court also ordered that the previous restriction on Mr Christopher John Garlick's access to the documents be vacated, permitting him to access those documents. This decision effectively allowed the parties broader use and access to the documents for their intended purposes.

The orders of the court were that Joseph William Smith, Miami Motors Pty Ltd, and their solicitors were released from the implied undertaking to use the documents only in the current proceedings. Furthermore, the part of the previous order restricting access to the documents was vacated, allowing the defendant and the plaintiff by counterclaim to use the documents in any future proceedings against David Allan Evans, and granting Mr Christopher John Garlick access to the documents.

Orders

Orders of the court

The order of the Court is:

1. The defendant Joseph William Smith and the plaintiff by counterclaim Miami Motors Pty Ltd and their solicitors are released from the implied undertaking to the Court not to use the documents comprised in the Affidavit of Michael Dermott Yarwood filed 6 November 2018 for any purpose other than in this proceeding.

2. Paragraph 5A of the order of Douglas J made on 25 September 2018 is vacated.

3. The said documents may be used by the defendant and plaintiff by counterclaim in relation to proceedings to be started by them against David Allan Evans in this Court

4. Mr Christopher John Garlick is permitted to have access to the said documents.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Yarwood (Deceased) v Smith [2020] QSC 89
PARTIES:	MICHAEL DERMOTT YARWOOD (Plaintiff) v JOSEPH WILLIAM SMITH (Defendant) v MIAMI MOTORS PTY LTD ACN 009 812 266 (Plaintiff by Counterclaim)
FILE NO/S:	BS 5866 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application filed 8 April 2020
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	On the papers
DELIVERED AT:	Brisbane
HEARING DATE:	22 April 2020
JUDGE:	Jackson J
ORDER:	The order of the Court is: 1. The defendant Joseph William Smith and the plaintiff by counterclaim Miami Motors Pty Ltd and their solicitors are released from the implied undertaking to the Court not to use the documents comprised in the Affidavit of Michael Dermott Yarwood filed 6 November 2018 for any purpose other than in this proceeding. 2. Paragraph 5A of the order of Douglas J made on 25 September 2018 is vacated. 3. The said documents may be used by the defendant and plaintiff by counterclaim in relation to proceedings to be started by them against David Allan Evans in this Court 4. Mr Christopher John Garlick is permitted to have access to the said documents.
CATCHWORDS:	PROCEDURE– CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS–DISCOVERY AND INTERROGATORIES– DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS– UNDERTAKINGS AND USE OF DOCUMENTS– RELEASE FROM IMPLIED UNDERTAKING– where the defendant and the plaintiff by counterclaim intend to start a further proceeding in this Court– where the defendant and plaintiff by counterclaim applied for orders that would relieve them of their implied undertakings to the Court not to use to use the documents comprised in the Affidavit of Michael Dermott Yarwood filed 6 November 2018 other than for the purposes of this proceeding – where they also applied to vary or vacate part of an order made on 25 September 2018 that does not permit Mr Garlick to have access to the documents – where the plaintiff consents to the proposed use and access– where the court released the defendant and plaintiff by counterclaim of their implied undertaking to the Court– where the Court ordered that the part of the 25 September 2018 order that restricted access be vacated. Bankruptcy Act 1966 (Cth), Part 11 Powers of Attorney Act 1998 (Qld) Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Hearne v Street (2008) 235 CLR 125 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 Minister for Education v Bailey (2003) 23 WAR 149 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
COUNSEL:	J Matthews for the defendant and plaintiff by counterclaim
SOLICITORS:	QBM Lawyers for the defendant and plaintiff by counterclaim