Court of Appeal Summary Notes – Civil

Catchwords: HUMAN RIGHTS — DISCRIMINATION — GROUNDS OF DISCRIMINATION — DISABILITY OR IMPAIRMENT — EMPLOYMENT

Where in 2004 the appellant sustained a head injury from a horse riding accident — where in 2008 the appellant commenced a Graduate Nurses Program with the respondent — where a condition of the program was that the appellant would be on a six month probation period, with a possible extension of three months in the event of under achievement — where the appellant was required to work night shifts — where the appellant was unable to complete night shifts due to headaches and nausea resulting from her 2004 head injury — where the respondent initially catered for the appellant’s request not to do night shifts — where the respondent’s evidence was that such arrangements worked “with difficulty” — where the respondent extended the appellant’s probation period a number of times, pending further medical evidence about her impairment — where the appellant found other employment and resigned in February 2009 — where pursuant to the Anti-Discrimination Act 1991 (Qld) the appellant commenced action in QCAT on the basis that she was subjected to direct and indirect discrimination by the respondent — where the senior member found there was indirect discrimination — where the respondent appealed to the QCAT appeal tribunal — where the presiding member concluded that the senior member had erred in failing to find that a s 25 exemption applied — where the appeal tribunal overturned the decision of the senior member — whether working night shifts was a “genuine occupational requirement” — whether the respondent made reasonable adjustments for the appellant in accordance with the respondent’s policy — whether working night shifts endowed the appellant with necessary clinical skills

Australian Executor Trustees Limited v Prodap Services Pty Ltd & Ors [2014] QCA 142 Holmes and Morrison JJA and Dalton J 13/06/2014

Catchwords: PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — SUMMARY JUDGMENT

Where the appellant appealed the decision of the learned primary judge dismissing an application for summary judgment — where the appellant loaned $2,831,200 to Prodap Services Pty Ltd under a loan agreement — where the loan was secured by the respondent’s guarantee — where the appellant gave the respondent a demand under the guarantee and a default notice — where the respondent contended that cl 10.3 of the loan agreement was void for uncertainty as it allowed the appellant to “change the interest rate at any time”, but does not provide a mechanism to calculate that change — where the appellant contended a term would be implied as a matter of law that changes had to be “fair and reasonable” — where the learned primary judge held that the letters notifying interest rate changes were not evidence that the rates were, in fact, fair and reasonable — whether the learned primary judge erred in not finding that there was an implied term that interest rate changes must be “fair and reasonable” to save the clause and contract from uncertainty — whether, if such a term was implied, the evidence before the learned primary judge was sufficient to prove the rates actually applied were “fair and reasonable” — whether the learned primary judge erred in dismissing the application for summary judgment

Hall v WorkCover Queensland [2014] QCA 135 Margaret McMurdo P and Muir JA and Atkinson J 06/06/2014

Catchwords: LIMITATION OF ACTIONS — LIMITATION OF PARTICULAR ACTIONS — SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS — TORT ACTIONS INVOLVING PERSONAL INJURIES

Where the appellant is the widow of the deceased — where the deceased had been employed by the respondents — where the deceased was exposed to asbestos dust during his employment — where the deceased died of mesothelioma — where at the date of the deceased’s death the three year limitation period for the commencement of actions for damages for negligence or breach of duty prescribed by s 11 of the Limitation of Actions Act 1974 (Qld) had expired — whether the primary judge erred in finding that the appellant’s claim for damages was statute barred

LM Investment Management Limited (in liq) v Bruce & Ors [2014] QCA 136 Fraser and Gotterson JJA and Daubney J 06/06/2014

Catchwords: CORPORATIONS — MANAGED INVESTMENTS — WINDING UP

Where the appellant is the responsible entity of the LM First Mortgage Income Fund (“the Fund”) — where the primary judge concluded it was necessary to appoint a person independent of the appellant to take responsibility for ensuring the Fund is wound up in accordance with its Constitution pursuant to s 601NF(1) of the Corporations Act 2001 (Cth) (“the Act”) — where the primary judge made that appointment upon finding that given the complexity of the winding up, the administrators of the appellant (“the administrators”) would not act properly in the interests of members in identifying and dealing with potential issues of conflict — where the primary judge found the appellants had conducted the litigation in a partisan and combative manner, and the administrators had preferred their own interests to those of the Fund — whether those findings and other supporting findings were reasonably open on the evidence — whether setting aside any of those findings vitiates the primary judge’s ultimate conclusions

CORPORATIONS — MANAGED INVESTMENTS — RESPONSIBLE ENTITY

Where the primary judge found the administrators had acted in a way inconsistent with those owing duties as responsible entity and trustee under the Act, conducted the litigation in a partisan and combative manner, and had preferred their own interests to the interests of the Fund — where the appellant argues those conclusions and supporting findings were not open because they were not put to appropriate witnesses in cross-examination or the appellant was not otherwise given adequate notice to meet those imputations — whether the administrators were cross-examined about those imputations or were otherwise given sufficient notice — whether there was a breach of the rule in Browne v Dunn so as to require those findings be set aside — whether setting aside any of those findings vitiates the primary judge’s ultimate conclusions

CORPORATIONS — MANAGED INVESTMENTS — WINDING UP

Where the primary judge found that if the administrators were permitted to wind up the Fund, there would be a real potential for conflicts of interest to arise — where the second respondent argued there would arise actual and not merely potential conflicts of interest — whether the primary judge erred on that basis — where the primary judge concluded that the real potential for conflicts of interest to arise did not of itself make it “necessary” to appoint an independent person to wind up the Fund under s 601NF(1) of the Act — where the second respondent argued the primary judge misconstrued s 601NF(1) and that those potential conflicts did make it “necessary” to appoint an independent person — whether the primary judge erred on those bases

Catchwords: ENVIRONMENT AND PLANNING — ENVIRONMENTAL PLANNING — PLANNING SCHEMES AND INSTRUMENTS — QUEENSLAND — GENERALLY

Michail v Australian Alliance Insurance Company Ltd [2014] QCA 138 Margaret McMurdo P and Gotterson JA and Dalton J 06/06/2014

Catchwords: INSURANCE — MOTOR VEHICLES — INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE — DISCLOSURE AND MISREPRESENTATION

Where the appellant claimed against his insurer, the respondent, for the total loss of his car — where it was common ground that the appellant had not disclosed his driving history to the respondent — where the respondent insurer contended that had the true position been disclosed to it, it would not have insured the risk at all — where the appellant contended that the judge below erred in finding that the insurer would not have insured the appellant — where the respondent had written guidelines as to whether or not it would accept various risks apparent in proposals it received — where the respondent at trial called the person who would likely have considered the appellant’s proposal had full disclosure been made — where that person’s evidence was that neither he nor those at a lower level in the respondent’s hierarchy had discretion to accept the appellant’s proposal — whether the judge below erred

EVIDENCE — BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE — GENERALLY — CREDIBILITY AND WEIGHT — PARTY’S FAILURE TO GIVE OR CALL EVIDENCE

Where the appellant contends the judge below should have exercised caution in assessing the evidence adduced by the respondent in accordance with the principles in Blatch v Archer — where the appellant contended the respondent ought to have called the executive manager of the respondent — where the appellant contended the respondent ought to have provided a proper underwriting assessment of the risk which the appellant’s proposal posed — whether the rule in Blatch v Archer applied

Nielsen v Capital Finance Australia Ltd & Ors [2014] QCA 139 Margaret McMurdo P and Muir JA and Douglas J 06/06/2014

Catchwords: APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — RIGHT OF APPEAL — WHEN APPEAL LIES — ERROR OF LAW — WHAT IS — GENERALLY

Where the appellant commenced proceedings in the District Court claiming against the first respondent mortgagor $181,523.50 under a written chattel mortgage agreement and each of the second, third, fourth and fifth respondents the same sum together with interest pursuant to a written guarantee and indemnity — where the guarantee and indemnity was executed by the director of the second and fifth respondent companies — where the director also signed as guarantor on his own behalf and purported to sign separately on behalf of the appellant — whether the director’s signature was binding on the appellant at common law — whether non-compliance with s 69(2) of the Powers of Attorney Act 1998 (Qld) invalidated the signature

Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2014] QCA 129 Margaret McMurdo P and Holmes and Morrison JJA 03/06/2014

Catchwords: MAGISTRATES — GENERALLY — POWERS AND DUTIES — GENERALLY

Where the third respondent filed a complaint alleging that the appellant had breached obligations imposed by the Workplace Health and Safety Act 1995 — where the complaint contained charges expressed in the alternative — where the third respondent had not appealed a trial division judge’s earlier decision in the same proceedings that summary charges could not be brought in the alternative so that the complaint was not in a form authorised by s 43 of the Justices Act — whether the principle of finality of judgment should preclude this court from revisiting that conclusion

MAGISTRATES — GENERALLY — POWERS AND DUTIES — GENERALLY

Where the third respondent filed a complaint alleging that the appellant had breached obligations imposed by the Workplace Health and Safety Act 1995 — where the complaint contained charges expressed in the alternative — where the primary judge held that an industrial magistrate had an implied power to strike out part of the complaint where it was necessary to enable the court to act effectively within its jurisdiction, such a power not being inconsistent with the express powers of election and amendment contained respectively in s 43 and s 48 of the Justices Act 1886 — whether the case was one of incorrect joinder under s 43 of the Justices Act so as to enliven the express power to require election contained in s 43(3)(a), with an implied power to strike out the count not proceeded on — where the appellant had conceded below that s 43(3)(a) was not applicable — whether the point should nonetheless be decided

Johnson & Anor v Hancock [2014] QCA 130 Gotterson JA and Boddice and Thomas JJ 03/06/2014

Catchwords: TORTS — NEGLIGENCE — PROOF OF NEGLIGENCE — WEIGHT AND CREDIBILITY OF EVIDENCE

Where the deceased fell into a latent drainage pipe while gardening on the appellants’ premises and injured his knee — where the deceased’s death was caused by the injury to his knee — where the appellants gave testimony they did not know about the drainage pipe — where the trial judge found the appellants knew about the drainage pipe — where the trial judge found the deceased’s death was caused by the appellants’ negligence in failing to warn the deceased about the presence of the drainage pipe — whether the facts found by the trial judge to support the conclusion of negligence were reasonable and against the evidence and the weight of that evidence

Kemp Meats Pty Ltd v Tompkins [2014] QCA 125 Margaret McMurdo P and Holmes and Fraser JJA 30/05/2014

Catchwords: TORTS — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — PARTICULAR CASES — OTHER CASES

Where the respondent slaughterman sustained a workplace injury while employed at the appellant’s abattoir — where the respondent was awarded judgment in the sum of $337,113.55 — where the appellant accepted liability for the respondent’s injury but alleged that his negligence in failing to wear cut-resistant gloves provided to him contributed to the injury — whether the appellant had “properly instructed” its employees to use the gloves for the purposes of s 305H(1)(b) of the Workers’ Compensation and Rehabilitation Act 2003 — whether the respondent was “provided” the gloves for the purposes of s 305H(1)(b) or s 305H(1)(c) of the Workers’ Compensation and Rehabilitation Act — whether the trial judge erred in finding that the respondent had not contributed to his injury

DAMAGES — MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT — MEASURE OF DAMAGES — PERSONAL INJURIES — METHOD OF ASSESSMENT — GENERALLY

Where the respondent suffered personal injury in the course of his employment — where the respondent was awarded judgment in the sum of $337,113.55 — whether the respondent’s pre-existing shoulder injury was properly taken into account in the award of damages for past and future economic loss — whether there was evidence justifying a finding of loss of income by virtue of his loss of the opportunity to carry out more highly-paid employment — whether there was error as to the period over which any such opportunity was lost — whether there was error as to the period over which the respondent was entitled to compensation for increased expenses

Ross v Leach [2014] QCA 126 Muir and Gotterson and Morrison JJA 30/05/2014

Catchwords: APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — RIGHT OF APPEAL — WHEN APPEAL LIES — ERROR OF LAW — WHAT IS — GENERALLY

Where the appellant and the respondent, who knew each other, were separately trying to set up a brothel on the Gold Coast — where the parties entered into an agreement in which each had a half-share in the brothel business — where the value of the brothel business was to be the value decided by a licensed valuer at the time of a subject incident — where a subject incident included “any falling out of the two parties” within the agreement — where the appellant gave an undertaking to the Prostitution Licensing Authority to have no association with the respondent in relation to the brothel business — whether the primary judge erred in finding that the test for whether the parties had fallen out for the purposes of the agreement was whether they could still work together — whether the primary judge ought to have construed the phrase “falling out” according to its ordinary meaning — whether the primary judge erred in finding that the parties fell out in January 2009

Summary Notes

General Civil Appeal — where the appellant and the respondent, who knew each other, were separately trying to set up a brothel on the Gold Coast — where the parties entered into an agreement in which each had a half-share in the brothel business — where the primary judge expressed “strong reservations” about the credit worthiness of both parties — where she regarded them as having been vague and careful with their evidence in order to avoid revealing breaches of the Prostitution Act 1999 (Qld) and, in the case of the appellant, to avoid revealing any breaching an undertaking he had given to the Prostitution Licensing Authority — where the value of the brothel business was to be the value decided by a licensed valuer at the time of a subject incident — where a subject incident included “any falling out of the two parties” within the agreement — where the appellant gave an undertaking to the Prostitution Licensing Authority to have no association with the respondent in relation to the brothel business — whether the primary judge erred in finding that the test for whether the parties had fallen out for the purposes of the agreement was whether they could still work together — whether the primary judge ought to have construed the phrase “falling out” according to its ordinary meaning — where the evidence suggests that the parties were acquaintances rather than friends and that they entered into a business arrangement for their mutual convenience — where the wording of the Agreement makes it plain that the “falling out” referred to is connected with the parties’ 9 August 2004 business agreements or arrangements — where there is little doubt that the parties had in mind in August 2004 that they would work together in the business should the respondent be granted a licence — where a “falling out” in this context involves a rupture of the relationship between the parties which would make the continuance of their contemplated business relationship untenable or unworkable — where the appellant, in seeking to challenge the primary judge’s findings of fact, faces a particularly difficult task — where as the primary judge remarked, “the evidence … is sparse” — whether the primary judge erred in finding that the parties fell out in January 2009. Appeal dismissed with costs.

Robb v Tunio [2014] QCA 127 Muir JA and Martin and Jackson JJ 30/05/2014

Catchwords: APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — RIGHT OF APPEAL — NATURE OF RIGHT

Where an appeal was made from a decision of the Appeal Tribunal of the Queensland Civil and Administrative Trial — where the applicant claimed $8,000 from the respondent as money lent — where the grounds of proposed appeal and reasons for justifying an extension of time for leave to appeal were that the applicant alleged he had proven that the statements made in the defence by the respondent were false — where the applicant further alleged that the Queensland Civil and Administrative Tribunal had failed to refer to these alleged falsehoods in their written judgment — whether the grounds alleged by the applicant constitute an appeal only on a question of law

Sibelco Australia Ltd v Magistrate Graham C Lee & Anor [2014] QCA 113 Fraser and Gotterson JJA and Atkinson J 22/05/2014 (delivered ex tempore)

Catchwords: ADMINISTRATIVE LAW — JUDICIAL REVIEW — PREROGATIVE WRITS AND ORDERS — CERTIORARI — DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF — GENERALLY

Where the appellant sought review of the Magistrate’s decision that it had a case to answer in respect of the second respondent’s complaints — where the applicant sought certiorari for the purpose of quashing that decision, as well as declarations concerning statutory construction — where such relief was refused, inter alia, on discretionary grounds — where the primary judge considered that granting the declarations sought would amount to a collateral attack on the criminal proceedings — whether there was any miscarriage in the exercise of the discretion by the primary judge

ADMINISTRATIVE LAW — JUDICIAL REVIEW — PREROGATIVE WRITS AND ORDERS — CERTIORARI — — GROUNDS FOR CERTIORARI TO QUASH — ERROR OF LAW ON THE FACE OF THE RECORD— GENERALLY

Where the appellant argued the error of law was the Magistrate’s failure to hold that a “mining activity” could not also be a “Chapter 4 activity” — whether there were facts not disclosed on the record which were essential to establish the asserted error of law

ADMINISTRATIVE LAW — JUDICIAL REVIEW — PREROGATIVE WRITS AND ORDERS — CERTIORARI — — GROUNDS FOR CERTIORARI TO QUASH — EXCESS OR WANT OF JURISDICTION — GENERALLY

Where the appellant argued the Magistrate made an error of law concerning the statutory construction of the offence — whether an error of law concerning an element of an offence, which if established means no offence could be made out, is a jurisdictional error

Summary Notes

General Civil Appeal — where the appellant sought review of the Magistrate’s decision that it had a case to answer in respect of the second respondent’s complaints — where the applicant sought certiorari for the purpose of quashing that decision, as well as declarations concerning statutory construction — where such relief was refused, inter alia, on discretionary grounds — where the primary judge took into account the Court’s traditional reluctance to interfere with an existing criminal process, and the appellant does not contend that this was not a proper consideration to take into account — where the primary judge considered that granting the declarations sought would amount to a collateral attack on the criminal proceedings — whether there was any miscarriage in the exercise of the discretion by the primary judge — where the appellant argued the error of law was the Magistrate’s failure to hold that a “mining activity” could not also be a “Chapter 4 activity” — whether there were facts not disclosed on the record which were essential to establish the asserted error of law — where in this appeal the appellant argued that the facts were sufficiently disclosed by the contentions in the particulars that the extraction of the B grade sand, which was alleged to constitute the contravention, occurred in conjunction with the appellant’s mining activities on the mining leases and that the sand was extracted from the same pit or quarries which were used to carry out the mining activities — where it seems clear that the reference to those activities being carried on in conjunction and in the same pits or quarries did not disclose that the mining for the mineral necessarily itself entailed removal of the sand which did not constitute the mineral, which is the subject of the offence — where the appellant argued the Magistrate made an error of law concerning the statutory construction of the offence — whether an error of law concerning an element of an offence, which if established means no offence could be made out, is a jurisdictional error. Appeal dismissed with costs.

LQ Management Pty Ltd & Ors v Laguna Quays Resort Principal Body Corporate & Anor [2014] QCA 122 Muir JA and Atkinson and Dalton JJ 27/05/2014

Catchwords: APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — RIGHT OF APPEAL — WHEN APPEAL LIES — ERROR OF LAW — WHAT IS — GENERALLY

Where the first respondent is the principal body corporate incorporated by registration of an initial plan of subdivision for a resort — where the second respondent is the primary thoroughfare body corporate incorporated by registration of a plan of subdivision — where the first appellant is the manager of the commercial aspects of the resort — where in trial division proceedings it was ordered by consent that questions regarding voting entitlements within the primary thoroughfare body corporate be the subject of prior determination — whether subsequent stages of the development came about through amendments to the initial scheme or through the approval of subsequent stages — whether the primary judge erred in finding that subsequent stages of the development came about through amendments to the initial scheme — whether the primary judge erred in finding that changes in voting entitlements could take place without registration of the plans

Thomas Borthwick & Sons (Australia) Pty Ltd v Ataera [2014] QCA 123 Muir and Morrison JJA and Dalton J 27/05/2014

Catchwords: APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — INTERFERENCE WITH JUDGE’S FINDINGS OF FACT — FUNCTIONS OF APPELLATE COURT — FINDINGS ON ISSUE OF NEGLIGENCE — GENERALLY

Where the respondent was employed by the applicant in its meatworks as a “print term operator” — where the respondent packed product of the meatworks into boxes for shipment — where the respondent developed carpal tunnel syndrome first in her right hand and then later in her left hand — where the respondent alleged that her work as a print term operator exposed her to a risk of developing carpal tunnel syndrome and that her injury was caused by the negligence of the applicant — whether the primary judge’s finding that the respondent would probably not have developed the condition had an adequate rotation system been in place lacks sufficient evidentiary support — whether the primary judge’s finding that the respondent’s work as print term operator caused the development of the condition in her left wrist lacks sufficient evidentiary support

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors [2014] QCA 124 Holmes and Muir JJA and Ann Lyons J 27/05/2014

Nguyen v Westpac Banking Corporation [2014] QCA 117 Gotterson and Morrison JJA and Martin 23/05/2014

Catchwords: MORTGAGES — RECEIVERS — POWERS, DUTIES AND LIABILITIES

Where the appellant customer had two overdraft facilities with the respondent bank — where the facilities were secured by a mortgage over the appellant’s real property — where the debt balances in the facilities were in excess of their limits — where this constituted a Default Event under the mortgage Schedule — where the appellant submitted that the overdraft limits had been increased — whether the appellant had to deliver up vacant possession of the mortgaged property to the respondent and receiver

Green & Ors v Pearson [2014] QCA 110 Fraser and Morrison JJA and Jackson J 16/05/2014

Catchwords: PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — PLEADING — DEFENCE AND COUNTERCLAIM — ADMISSIONS

Where the primary judge gave the respondent leave to withdraw admissions in his defence — where the proposed defence is potentially defective — whether the primary judge’s decision was erroneous

PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — PLEADING — DEFENCE AND COUNTERCLAIM — ADMISSIONS

Where the appellants submitted there was no evidence to support the respondent’s denial of the admissions made — where the primary judge relied on an affidavit of the respondent verifying the proposed defence — where the respondent was the principal witness who might be expected to know the relevant facts — whether the primary judge made an error of principle or failed to take a material consideration into account in relying on the respondent’s affidavit

PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — PLEADING — DEFENCE AND COUNTERCLAIM —ADMISSIONS

Where the primary judge gave the respondent leave to withdraw admissions in his defence — where the admissions were deemed pursuant to r 166(5) of the Uniform Civil Procedure Rules 1999 (Qld) — where the respondent had sought summary judgment of the claim in lieu of providing a detailed defence — where the appellant argued that the respondent’s admissions were made formally and deliberately — whether there was an error by the primary judge in giving less weight to the way in which the admissions were made

PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — COSTS

Where the primary judge held that costs should be “in the cause” — where the primary judge took into account the respondent’s conduct in bringing a summary judgment application without preparing a proper defence and that the appellants had failed to raise certain criticisms with the respondent prior to the hearing of the application — whether those matters were irrelevant or extraneous to the exercise of the primary judge’s discretion

Summary Notes

General Civil Appeal — where the primary judge gave the respondent leave to withdraw admissions in his defence — where the claims against against the respondent are for breach of his employment contracts or fiduciary obligations as an employee — where r 188 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides that a party may withdraw an admission made in a pleading only with the court’s leave — where this appeal is accordingly an appeal against the exercise of a discretion on a matter of practice and procedure under the UCPR — where the statutory right of appeal to the Court of Appeal from an interlocutory order of a judge of the Supreme Court engages principles applied in similar contexts in appellate courts in this country, including this Court — where the philosophy of the UCPR is important in considering an appeal from the exercise of a power conferred by those rules — where the decision of the primary judge, made under r 188, to give leave to the respondent to amend the defence, must be viewed against the background of r 5 and r 367, when this Court asks the question whether it should interfere with his Honour’s exercise of discretion — where there are more than one hundred alleged transactions comprising payments of varying amounts to many different payees, extending over the period beginning in September 2001 and ending in April 2006, that are collectively the subject of these claims — where from that summary, it can readily be seen that the proceeding involves a serious degree of factual and legal complexity — where given the lapse of time between the events in question and the date on which the proceeding was started, the respondent cannot be expected to have a detailed recollection of many of the facts — where it must be observed that even if the appellants were not aware of a potential claim against the respondent until 7 May 2007, they started the proceeding only one day short of six years after that — where before the primary judge, the appellants opposed the order sought on the basis that the proposed amended defence did not respond or respond adequately to all of the allegations in the statement of claim — where his Honour considered with some care the appellants’ submissions as to the continuing inadequacies of the proposed pleading — where the complaints do not amount to a basis for interference with the exercise of discretion — where the appellants submitted there was no evidence to support the respondent’s denial of the admissions made — where the primary judge relied on an affidavit of the respondent verifying the proposed defence — where the respondent was the principal witness who might be expected to know the relevant facts — where in exercising the discretion to give leave to withdraw an admission, there is no a priori rule as to what evidence is required in every case — where it was therefore open to the primary judge to act upon an affidavit generally verifying the contents of the draft defence dealing with facts within his knowledge — where the primary judge held that costs should be “in the cause” — where the primary judge took into account the respondent’s conduct in bringing a summary judgment application without preparing a proper defence and that the appellants had failed to raise certain criticisms with the respondent prior to the hearing of the application — where the processes of the UCPR are not an end in themselves — where although there is force in the appellants’ criticism that the respondent’s manner of proceeding was not authorised by the rules the characterisation of that conduct as reasonable did not amount to the primary judge’s discretion being affected by an irrelevant or extraneous matter. Appeal dismissed with costs.

Kern Consulting Group Pty Ltd & Anor v Opus Capital Ltd [2014] QCA 111 Fraser and Gotterson JJA and Jackson J 16/05/2014

Catchwords: CORPORATIONS — MANAGED INVESTMENTS — OTHER MATTERS

Where the responsible entity has appointed an agent as custodian of trust property pursuant to s 601FB(2) of the Corporations Act 2001 (Cth) — where the custodian of trust property entered into a lease with the applicants — where the respondent is not a party to the lease — whether the respondent is the proper plaintiff to bring an action for outstanding rent and charges payable under the lease

PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — DEFAULT OF PLEADING

Where the pleading is defective for want of parties — where the proceeding could be successfully reconstituted or re-pleaded — whether the proceeding should be dismissed

Marks v ANZ Banking Group Limited [2014] QCA 102 Muir and Gotterson JJA and Daubney J 06/05/2014

Catchwords: PRIVATE INTERNATIONAL LAW — RECOGNITION, EFFECT AND ENFORCEMENT OF FOREIGN JUDGMENTS — UNDER LEGISLATION — ENFORCEMENT OF FOREIGN JUDGMENTS — REGISTRATION — SETTING ASIDE

Where the appellant was a guarantor to a Facility Agreement issued by the respondent in Singapore — where the Facility Agreement contained a non-exclusive jurisdiction clause — where default occurred and the respondent commenced proceedings against the appellant in Singapore — where judgment entered on 27 December 2012 ordered the appellant to pay A$11,102,788.56 — where the respondent applied to the Queensland Supreme Court to register the judgment and was granted registration pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) — where the appellant sought to set aside the registration but the application was dismissed — whether the Singapore judgment was an abuse of process given that the respondent had commenced another action in Queensland for the recovery of possession of land — whether the High Court of Singapore had jurisdiction — whether the appellant submitted to the jurisdiction of Singapore — whether the Singapore judgment was for an ascertained amount of money — whether the registration of the foreign judgment should be set aside.