Court of Appeal Judgment Summary Notes

Arrowsmith v Micallef & Ors [2013] QCA 143 White and Gotterson JJA and Peter Lyons J 4/06/2013

General Civil Appeal — Procedure — where orders were made in the trial division for the distribution of the estate of Allan James Dumesny (the deceased) — where terms of settlement were agreed between the parties at a mediation — where a dispute emerged about the effect of the terms of settlement — where the terms of settlement contained a release clause — where at first instance the appellant sought an adjournment to obtain evidence that might be relevant in construing the release clause — where the application for an adjournment was refused — whether there was a denial of justice to the appellant as a result of the refusal of her application for an adjournment — where cl 6 of the Terms of Settlement is ambiguous — where language used in cl 6 is very broad — where relevant extrinsic evidence was admissible on the construction of cl 6, because it was ambiguous, and possibly because this is specifically required for the construction of a release — where this is an appeal against an exercise of discretion, in a matter of practice and procedure — where s 114 of the Supreme Court of Queensland Act 1991 (Qld), as it stood in December 2011, made inadmissible evidence of anything done or said at the mediation, unless all parties to the dispute otherwise agreed — where there seems to have been an agreement by conduct that evidence of things done and said at the mediation was admissible at the hearing — where there is much to be said for the proposition that the appellant should have been given the opportunity, through her legal advisers, to investigate whether there was available evidence, now admissible, relevant to the construction of cl 6 — where the evidence demonstrated the prospect of obtaining evidence which would objectively establish the subject matter, or the genesis and aim, of the Terms of Settlement, including cl 6 — where the refusal of the adjournment deprived the appellant of the opportunity to investigate the availability of evidence in support of her position about the proper construction of cl 6 of the Terms of Settlement — where the appellant’s evidence demonstrated a real prospect that evidence might be obtained to support her position, from sources likely to be regarded as credible — where there was a denial of natural justice. Appeal allowed. Matter remitted to the trial division for further hearing

Knight & Ors v The Queen [2013] QCA 144 Muir JA and Boddice and Jackson JJ 7/06/2013

General Civil Appeal — Juries — where the appellants were convicted of murder of another inmate following a retrial — where the appellants’ criminal histories were only tendered during the sentencing hearing — where no member of the jury was present in Court during the sentencing hearing — where, 19 days after verdict, a jury member told his hairdresser that the outcome of the trial “wouldn’t make a difference as they were already serving life terms or long terms of imprisonment” — where details of the appellants’ criminal histories were available online during the course of the trial — where the trial judge repeatedly directed the jury not to make investigations of their own — where the appellants’ criminal histories were widely broadcast after sentence — where the primary judge refused the appellants’ application to investigate suspected jury bias, fraud or offence pursuant to s 70(7) of the Jury Act 1995 (Qld) — whether there are grounds to suspect that the juror may have been guilty of bias, fraud or offence — whether an investigation of the suspected bias, fraud or offence should be authorised — where it was quite likely, as the primary judge found, that a juror who had sat on a trial, such as the subject trial, would have been interested in accessing post trial electronic media reports in order to ascertain information about the sentences imposed and the sentencing hearing — where in the course of the trial the trial judge gave extensive directions to the jurors, drawing to their attention the prohibition against inquiring about the appellants — where there was nothing in the relevant conversation that suggested that the juror’s knowledge of the appellants’ prior criminal offences was gained before delivery of the jury’s verdicts — where having regard to the constitutional role of juries of the triers of fact in criminal trials, the respect with which the law has traditionally treated jury verdicts and the ability of juries to reach their verdicts faithfully following the trial judge’s directions, it cannot be supposed that s 70(7) contemplated the launching of an investigation without good cause — where those circumstances support the construction that for there to be “grounds to suspect” for the purposes of s 70(7) there needs to be more than the existence of a mere possibility that a juror obtained knowledge of prior convictions before a verdict was returned — where in this case there is the mere possibility that the juror obtained the relevant knowledge prior to the verdicts — where there are cogent reasons for believing that the relevant knowledge was gained after the verdicts. Appeal dismissed.

Coeur de Lion Investments Pty Ltd v Kelly & Ors [2013] QCA 160 Muir and Fraser JJA and Jackson J 21/06/2013

General Civil Appeal — Corporations Law — where the first, second and third respondents are directors of the fourth respondent, an unlisted public company — where the board passed a resolution to pay consultancy fees to the directors — where the appellant shareholder applied, pursuant to s 237(1) of the Corporations Act 2001 (Cth) (the Act), for leave to bring proceedings in the name of the fourth respondent against the first, second and third respondents to recover consultancy fees paid to the directors without member approval — where the primary judge refused the application on the basis that the appellant had not established that it was acting in good faith or that it was in the best interests of the fourth respondent to grant leave — where the appellant contends that the delay in challenging the consultancy payments is explained by the change in control of the appellant and not indicative of a lack of good faith — where the appellant contends that the respondents’ defences under s 208 and s 1318 of the Act should be tested at trial — where the appellant contends that the fourth respondent will be indemnified for the costs of the action — whether the primary judge erred in finding that the appellant was not acting in good faith — whether it is in the best interests of the company that leave be granted — where the appellant’s argument does not do justice to the primary judge’s findings — where the primary judge found, implicitly, that the appellant failed to give consideration to the benefits it and the Club had received from the work of the respondent directors and the bearing of its own “inaction” on the conduct of the respondent directors and the legal rights of the Club against those respondents — where one would think it likely that an applicant under s 237, acting in good faith, would turn its mind to the question whether the amount likely to be recovered in the litigation merited the expenditure of time, resources and money which litigation would necessitate — where it was not disputed in argument that it was arguable that approximately half of the claims could be statute barred — where the respondents’ arguments for relief under s 1318 and on the possible application of s 211 are also taken into account, it is plain that there is an appreciable risk that the amount ordered to be paid to the Club, if judgment is given for the appellant, would be a sum which would attract the application of the lowest District Court scale — where the difference between the amount of costs assessed on the standard basis and the Club’s costs of the proceeding could be substantial — where the appellant argues that this does not present a difficulty as the Club will be indemnified for the costs of the action — where that response, however, does not take into account questions such as the distractions to the board and disruption to the business of the Club in what, may be gleaned from the above historical narrative, is likely to be a turbulent time in which considerable demands are likely to be made on the time of the Club’s directors — where against the background of the diverging interests and developing conflict between the appellant and the other shareholders of the company, the failure of the appellant to request the respondent directors to justify their remuneration and to demand repayment before resorting to litigation is significant — where also relevant is the inference available from the correspondence referred to earlier that the appellant had no interest in resolving its claims by means other than litigation — where, finally, it is also relevant to the question of bona fides that the appellant alone, of the Club’s 325 shareholders, supports the proposed derivative action: a proceeding which must be on behalf of the Club and in its best interests — where it does not appear that the appellant has established any error on the part of the primary judge in not being satisfied of the existence of good faith. Appeal dismissed with costs.

McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168 Margaret McMurdo P and Holmes JA and Douglas J 24/06/2013

Application for Leave Queensland Civil and Administrative Tribunal Act — Body Corporate — where the applicants seek leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) which set aside an adjudicator’s orders, made under s 276 of the Body Corporate and Community Management Act 1997 — where those orders required the respondent to register a new Community Management Statement stating the applicants’ entitlement to exclusive use of an area of common property in a Port Douglas unit complex — where s 289(2) of the Body Corporate and Community Management Act allows a person aggrieved by an adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal (QCAT) — where a developer contracted to sell a lot in a unit complex with exclusive use of an area of common property — where a general meeting of the body corporate passed a special resolution, which was not contained in the voting paper for the meeting, granting exclusive use — where the exclusive use area was not identified on any plan — where no amended community management statement containing the exclusive use by-law was registered — where more than ten years later the applicants as successor in title of the unit’s purchaser successfully applied to an adjudicator for an order requiring the body corporate to register a new community management statement containing the exclusive use by-law — where the committee of the respondent body corporate appealed the adjudicator’s decision in QCAT — where the committee failed to obtain a special resolution of the body corporate for the appeal — where the QCAT member failed to deal with the applicants’ submission as to the lack of authority — where the body corporate purported to ratify the decision to appeal after a decision was given in its favour — whether the QCAT proceeding was a nullity — whether there could be effective ratification after the proceeding was complete — whether a substantial injustice has occurred by virtue of the want of authority for the QCAT proceeding, warranting leave to appeal — whether the developer could confer exclusive use on a unit holder during the “original owner control period” — whether the resolution granting exclusive use was valid — whether the QCAT member was correct in finding that the exclusive use area was not identified — whether an order in the nature of rectification could be granted where there was no identification of the relevant area — whether the applicants’ delay in seeking relief was relevant to any exercise of discretion — where accepting the principle that the effect of ratification is to clothe the agent with authority for the purposes of the unauthorised act, the body corporate was able retrospectively to give the committee authority to mount the QCAT appeal — where that conclusion would be in keeping with the notion that ratification is designed to “remedy an inconvenience”; it seems clear enough that the body corporate wished to appeal, and that its failure to do so was the product of simple oversight as to the level of authorisation required — where there can be no doubt that the failure of the member of QCAT to deal with the submission put to him about the committee’s lack of authority to bring the appeal was an error of law, but neither the proceeding nor his order were rendered invalid by that want of authority — where given the ultimate unlikelihood of any different result purely on the basis of lack of authority for the tribunal appeal, the applicants would not be regarded as having established a substantial injustice warranting a grant of leave to appeal on this ground — where the Body Corporate and Community Management Act did not in 1998, and does not now, contemplate the conferring of a right of exclusive use attached to a lot except by means of an exclusive use by-law — where the member noted that for it to be just and equitable to make the order effectively giving exclusive use to the owner of lot 16, “an explanation had to be given for a decade of delay”; and there had been none — where that feature was entirely relevant to consideration of what was just and equitable. Application for leave refused with costs.