Body Corporate for Eumundi Village Centre v Vyseon Pty Ltd [2024] QDC 202

DISTRICT COURT OF QUEENSLAND CITATION: Body Corporate for Eumundi Village Centre v Vyseon Pty Ltd [2024] QDC 202 PARTIES: BODY CORPORATE FOR EUMUNDI VILLAGE CENTRE CTS 26926 (Appellant) v. VYSEON PTY LTD (ACN 009 285 027) as trustee for the J and B Palmateer Superannuation Fund. (Respondent) FILE NO: D177 of 2023 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Maroochydore Magistrates Court. DELIVERED ON: 3 December 2024. DELIVERED AT: Maroochydore. HEARING DATE: 24 October 2024. JUDGE: Byrne KC DCJ ORDERS: 1. The appellant’s application filed 5 July 2024 is allowed in part. 2. The appellant has leave to file an amended notice of appeal in terms of the draft amended notice of appeal attached to the affidavit of Christopher Robert Sutton filed 4 September 2024 at attachment CRS-4, limited to grounds 1 to 10 inclusive. 3. The appellant is to pay the respondent’s costs thrown away in responding to the notice of appeal filed 14 November 2023. 4. Grounds 2(b) and 4 of the appellant’s application filed 5 July 2024 are dismissed. 5. The appellant’s application filed 5 July 2024 is -- 1 of 10 -- 2 otherwise refused. 6. The respondent’s application filed 1 October 2024 is allowed. 7. The subpoena issued to the Proper Officer, Vyseon Pty Ltd, ACN 009 285 027, Suite 4, 2 Centro Avenue, Subiaco, WA, 6008 on 4 September 2024 is set aside in its entirety. 8. I will hear the parties as to costs. Additionally, I give the following directions: 1. The amended notice of appeal the subject of the grant of the leave is to be filed on or before 4.00 pm on 10 December 2024. 2. The appellant is to file an Outline of Submissions concerning the amended notice of appeal and a separate Outline of Submissions in respect of its appeal against the costs order below on or before 4.00 pm on 10 January 2025. 3. The respondent is to file an Outline of Submissions concerning the aforementioned amended notice of appeal and a separate outline of submissions in respect of its response to the appeal against the costs order below on or before 4.00 pm on 7 February 2025. 4. The parties are to each sign and file, or cause to be filed, a jointly executed Request for Trial Date on or before 4.00 pm 21 February 2025, or within 14 days after the respondent’s outlines are filed, whichever is the earlier. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – where the respondent commenced proceedings against the appellant and the appellant filed a counterclaim – where judgment was entered in favour of the respondent and the counterclaim was dismissed – where the appellant appeals that decision - where the appellant filed an application seeking that the judgment be stayed pending the determination of the appeal – whether the execution of the judgment should be stayed. -- 2 of 10 -- 3 MAGISTRATES - APPEAL AND REVIEW – PROCEDURE – where the appellant seeks leave to file an Amended Notice of Appeal – where the Notice of Appeal presently contains six grounds – where the appellant seeks to amend an existing ground and add a further six grounds – whether there are prospects of success on the amended grounds of appeal. MAGISTRATES– APPEAL AND REVIEW – PROCEDURE – where the appellant seeks leave to adduce further evidence in the appeal – where the further evidence was in tender bundles at trial and is physically in the Court file – where the appellant submits that it is unclear if the evidence was tendered at trial and taken into account by the Magistrate – where the evidence was not relied on at trial – whether the evidence could have been obtained at the original hearing – whether the evidence would have an important influence on the outcome – whether the evidence is credible. MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – where the appellant filed a subpoena requiring the respondent to produce certain documents – where the respondent applies to have the subpoena set aside – whether the subpoena should be set aside in its entirety. LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld) rr. 8, 429G, 429H, 761, 766, 785. CASES: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. Asia Pacific International Pty Limited v Peel Valley Mushrooms Limited [1999] 2 Qd R 458. Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404. Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453. El Safty v Kaye Chapman Investments Pty Ltd [2017] QCA 224. Langdale v Danby [1982] 3 All ER 129. Mowen v The Morning Bulletin/APN [2013] QCA 36. MNSBJ Pty Ltd v Downing [2017] QCA 141. TKWJ v The Queen (2002) 212 CLR 124. -- 3 of 10 -- 4 COUNSEL: Mr. A. Berriman for the appellant. Mr. M. White for the respondent. SOLICITORS: The Firm Law Group for the appellant. Butler McDermott Lawyers for the respondent. Background [1] The respondent commenced proceedings against the appellant in the Magistrates Court for damages for breach of contract, nuisance, negligence and trespass. The appellant denied liability, and counterclaimed seeking damages in negligence and for nuisance. [2] On 19 October 2023 the presiding Magistrate entered judgment in favour of the respondent in the sum of $66,547.25, and dismissed the counterclaim. A timetable was set for submissions as to costs. [3] On 14 November 2023 the appellant appealed that decision, listing six grounds of appeal which, variously, alleged errors of fact, or law, or a combination thereof. The notice of appeal stated an intention to adduce “fresh evidence” on six stated topics. Outlines of argument were filed on 15 February 2024 and 14 March 2024 respectively. The appellant’s outline did not advance the application to adduce further evidence. [4] On 5 July 2024 the appellant filed the present application as an interlocutory application in the appeal. The details of the application are outlined below. [5] On 4 September 2024 the appellant caused a subpoena to be issued directing the respondent to produce certain documents. On 1 October 2024 the respondent applied to set aside the subpoena in its entirety. [6] Given there are cross-applications, I will refer to the parties by their role in the substantive appeal so as to avoid the potential for confusion. The applications [7] The appellant seeks five orders: 1. That the execution of the judgment below be stayed pending the determination of the appeal; 2. That: (a) the appellant has leave to amend the notice of appeal in the terms of a draft provided to the respondent’s solicitors by letter dated 18 June 2024; (b) the appellant has leave to further amend the notice of appeal once costs in the proceeding below were determined; -- 4 of 10 -- 5 3. That the appellant has leave to rely on “further evidence” as notified to the respondent’s solicitors by letters dated 5 March 2024 and 4 July 2024; and 4. An order for disclosure of certain documents. [8] The respondent’s application is outlined in paragraph 5 above. [9] The costs judgment below was delivered on a date between the filing of the appellant’s application and the date of the oral hearing, thereby rendering ground 2(b) redundant. Further, the appellant did not press ground 4 on the oral hearing. They must both be dismissed, as the appellant accepts. [10] It is convenient to consider the various applications other than in the order in which they were filed given the outcomes of some will have consequences for other applications. The application to amend the notice of appeal. [11] A notice of appeal is an originating process for the purposes of the UCPR.1 Accordingly, the broad range of powers in Chapter 10, Part 3 of the UCPR also apply. [12] The applicable principles in the circumstances of this matter are not contentious. The primary consideration is the prospects of success on the amended grounds. Also, to be weighed in are considerations such as the prejudice, if any, the respondent would suffer if the amendment were allowed and the reason why the amendment is sought. [13] The present notice of appeal contains six grounds. The first proposed amendment is to ground 6. The effect is to provide more clarity concerning the existing ground and was not the subject of argument by the respondent. Otherwise, the appellant seeks to add a further six grounds of appeal. They are said to be viable on the evidence adduced below, but would also rely in part on the further evidence, if leave were granted to adduce it. [14] For the purposes of assessing the strength of the proposed grounds of appeal, I have read the judgment below. Both parties indicated I need not read the transcript of the hearing below.2 [15] All proposed amended grounds of appeal allege either an error of law, or an error in fact finding. The former category is more easily assessed by reading the judgment below. In relation to amended grounds 6 to 10 inclusive some are apparently stronger than others, but none can be said to have no prospects at all. It is true, as the respondent highlights, that no real effort has been made by the appellant to refer to evidence to support the strength of the amended grounds, but some rely on errors 1 Rule 8 of the UCPR. 2 Ts 1-34, ll 39-44. -- 5 of 10 -- 6 of law based on the findings and sufficient insight as to the rest of the grounds can be gained from the judgment itself. [16] The prejudice asserted by the respondent relates to the ability for these grounds to have been pleaded in the first iteration of the notice of appeal, and the delay occasioned by the need to both argue the present application and then, if successful, to prepare and file fresh outlines. The respondent relies on the correct proposition that steps that will cause a delay are not allowable just for the asking, and that larger considerations of case management come into play.3 [17] Aon Risk Services requires a balancing of competing considerations, case management being one. It recognises that a costs order will not always remedy any delay. Notwithstanding the respondent taking steps to have the appeal listed since March this year, there has been considerable delay already occasioned regardless of any orders that are made as a result of this application. Allowing the amendment will cause some further delay, but that can be mitigated by giving directions as to the steps to be taken in this appeal, and the associated appeal against the costs order. Although that is not presently before me, there is no suggestion that it should not be dealt with at the same time. Any wasted costs can be accommodated by an order for costs thrown away in these proceedings. I note that the appellant concedes such an order is appropriate. [18] Bearing in mind the caution that should be exercised before denying a party the ability to pursue an appeal,4 I consider it is appropriate to give leave for those proposed grounds. [19] The same cannot be said for proposed grounds 11 and 12. Proposed ground 11 is poorly drafted. In particular it does not allege any error but asserts a proposition of law that, as drafted, is surprising. The appellant accepted the proposed ground was poorly drafted and Counsel sought to explain what the object of the ground was, but no draft amendment to the proposed ground was settled or provided to the Court. [20] Further, the lack of certainty as to success on the ground is evidenced by the fact that the particulars supporting the proposed ground rely on the disclosure, which is not now pressed by the applicant. In its stead, the applicant intends to rely on the subpoenaed material, but it does not know what that contains with any precision. [21] As to the proposed ground 12, it alleges an error of law through failing to attribute passages of the judgment as quotes from the respondent’s outline below. No examples were provided. The judgment contains a number of quoted passages from the respondent’s outline below, one of which is very lengthy. All were acknowledged as being from the respondent’s outline. The appellant has failed to satisfy me that the ground has prospects of success. 3 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. 4 MNSBJ Pty Ltd v Downing [2017] QCA 141. -- 6 of 10 -- 7 The respondent’s application to set aside the subpoena. [22] The subpoenaed material was, as noted above, intended for use in the prosecution of proposed ground 11. Given leave has not been granted to add that ground, there is no utility in permitting the subpoena to stand. The same can be said of the fact that there is no application for leave to admit the fruits of the subpoena as further evidence on the appeal. [23] Had the application been considered without those issues, I would have set aside the subpoena on the basis it was a “fishing expedition”, as the respondent submits. The appellant has an understanding of what documents exist, or are likely to exist, but cannot be sufficiently certain of what will be revealed if they are produced. I accept that the subpoena was issued in the hope of providing useful material, rather than in securing evidence known to exist. The application for leave to adduce further evidence. [24] The evidence the subject of this application is particularised as the 12 items listed in the appellant’s solicitor’s letter to the respondent’s solicitors dated both 24 June 2024 and again on 4 July 2024.5 [25] Rule 766 of the UCPR, apart from r. 766(3), applies to appeals to this Court by dint of r. 785. In the circumstances here pertaining, special leave is required to adduce the intended further evidence. [26] The appellant submits that each of the subject documents are found on the court file but, it is unclear if any were exhibits in the trial and whether any or all were taken into account by the Magistrate. The respondent’s Counsel, who appeared below, explained that each party provided a tender bundle and documents from these bundles were marked as exhibits when they were relied on in evidence. The appellant has not contested that proposition, but maintains that, because of what is said to be the “impossibility of determining what was in and what was out”,6 the appropriate order is to allow the further evidence to be adduced on the appeal. Counsel did however accept that the application was based on an assumption that the Magistrate took into account the material not marked as an exhibit, and did not express that he did so.7 [27] I am unable to accept the assumption is properly made. As the appellant accepts, a list of exhibits was kept and there are numerous references to exhibits in the judgment, suggesting that the Magistrate was aware of what could be considered and what could not. His Honour is an experienced Magistrate, and is unlikely to have overlooked the distinction between documents tendered and those not tendered 5 Affidavit of Christopher Robert Sutton filed 4 September 2024, CRS-3 pp 31-34. 6 Ts 1-33, ll 8-10. 7 Ts 1-33, l 41 to 1-34, l 19. -- 7 of 10 -- 8 when tender bundles are utilised at trial. Further, the appellant has not pointed to any passage in a lengthy judgment which suggests that the assumed conduct has occurred. For all of those reasons, this is not a basis for giving leave, let alone special leave, to appeal. [28] In Clarke v Japan Machines (Australia) Pty Ltd8 the Court adopted the test espoused in Langdale v Danby9 as to what amounts to special reasons; namely satisfaction that the evidence could not have been obtained at the original hearing, that it would probably have an important influence on the result of the case, although it need not be decisive and it must be apparently credible, although not necessarily incontrovertible. [29] Other authorities, including but not limited to Mowen v The Morning Bulletin/APN10 and El Safty v Kaye Chapman Investments Pty Ltd11 have referred to the need to explain why the evidence was not utilised at trial, when it was available. In my view, this is an important consideration. A party to litigation is usually taken to be bound by their lawyer’s conduct of the hearing, in both criminal and civil jurisdictions.12 A particular reason is needed to justify departing from this usual rule. [30] Each document was clearly available at the time of trial; each was in a tender bundle and it can be assumed had been disclosed to the opponent prior to trial. There has been no explanation offered why the evidence now said to be important to the proper resolution of the dispute was not relied on at trial. In the absence of proof to the contrary, it can be presumed to have not been used for what was then considered to be a legitimate forensic reason, even if it is now argued to the contrary. [31] Without attempting to deal with each document individually, although the documents are accurate representations of their respective contents, their contents are not necessarily credible evidence. No issue has been taken with the credit findings concerning any of Mr and Mrs Palmateer and Mr Broadbent. Those findings, in turn, affect the credibility of the assertions in their respectively authored documents. [32] While it can be accepted that each item of proposed evidence, apart from the correspondence going to costs,13 might contribute in some way to arguments made by the appellant on appeal, I am not satisfied that any individually or in combination would likely have “an important impact” on the appeal. 8 [1984] 1 Qd R 404, 408. 9 [1982] 3 All ER 129 at 137-138. 10 [2013] QCA 36. 11 [2017] QCA 224. 12 TKWJ v The Queen (2002) 212 CLR 124. 13 Letter of 5 June 2020. -- 8 of 10 -- 9 [33] In addition to the impact of the credit findings referred to earlier, the supplementary expert reports were prepared by someone other than one of the authors of the Joint Expert Report, raising issues of admissibility and weight. Further, they are not in an acceptable form to be tendered as expert evidence.14 Further again, it is unclear how the opinion of a civil engineer can rationally impact on the scope of a contract, as asserted in the solicitor’s letter. [34] While the admission into evidence of a Mediation Agreement may seem odd at first blush, there is no ground, or proposed ground, of appeal complaining about its admissibility. Further, the summary of the reason for the mediation is just that; a summary. It does not necessarily reflect the actual boundaries of the dispute then between the parties. [35] The application for leave to adduce further evidence must be refused. The application to stay the enforcement of the judgment below. [36] The power to grant a stay is confirmed by r. 761 of the UCPR. The test can be distilled to whether the appellant can demonstrate that there is a good arguable case, whether there is a disadvantage to the appellant if the stay is not ordered and whether the disadvantage to the appellant is greater than that suffered by the respondent, if any.15 The tests have also been expressed, in addition to the requirement to show a good arguable case, as whether the appeal would be rendered nugatory if the stay was not granted and whether the appellant would be irremediably prejudiced if the stay were not granted and the appeal succeeded.16 [37] Usually, Courts should not be disposed to delay the enforcement of court orders. More than mere inconvenience to the unsuccessful litigant needs to be demonstrated.17 [38] In this case it is difficult to make an accurate assessment of the strength of the appellant’s case without resort to the trial transcript, although some grounds appear to have better prospects than others. None can be said to have no prospects at all, although I do not pre-judge the outcome of the appeal. Given the view I have otherwise reached, this consideration is not determinative of the application. [39] I consider there is no proper need to deprive the respondent of the ability to enforce the damages judgment below. It is for a money order which, if collected prior to the conclusion of the appeal, can be refunded if the appellant succeeds. Enforcement does not entail undoing something of a more lasting nature. [40] Accepting that the appellant has incurred substantial costs in conducting the proceeding below, there is no suggestion of an inability to pay the judgment 14 Affidavit of Christopher Robert Sutton filed 4 September 2024, CRS-5, pp 76-79; rr. 429G and 429H of the UCPR. 15 Asia Pacific International Pty Limited v Peel Valley Mushrooms Limited [1999] 2 Qd R 458. 16 Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453, [15]. 17 Cook’s Construction at [12]. -- 9 of 10 -- 10 amount. It is in effect said to be onerous and also risky, given the possibility the respondent may enter liquidation. It can be conceded that is a possibility – it always is – but it is nothing more than a mere theoretical possibility in this case. Nothing has been adduced to show that it is likely. The risk does not favour interfering with the usual ability to enforce the judgment. [41] Finally, I do not accept the appellant’s submission that the delay in enforcement tells in favour of the application. I accept that preliminary steps had been taken by the respondent since 21 June 2024, but without response. It was not appropriate to pursue that further on the filing of the present application on 5 July 2024. Any earlier preliminary attempts to commence enforcement action were undoubtedly influenced by the outstanding costs judgment. That was a reasonable approach, but the longer there was a delay in the provision of that judgment, the more reasonable it became to commence enforcement of the judgment debt. [42] The delay in enforcement is a neutral factor, and I otherwise consider the application should be refused. Orders [43] In the circumstances of this case, I consider it appropriate to not only make orders arising from the applications heard before me but to also give directions as to the future conduct of this matter and of the associated costs appeal. The terms of those orders and directions appear on the cover sheet of these reasons. -- 10 of 10 --