Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd (No 2)
[2013] QSC 174
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- Unreported Judgment
- Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd (No 2)[2013] QSC 174
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Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd (No 2)[2013] QSC 174
Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd (No 2)[2013] QSC 174
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 17 July 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written submissions |
JUDGE: | Philip McMurdo J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where judgment given against the plaintiff – where the plaintiff sought leave to file an amended claim and statement of claim – where the plaintiff sought to have the judgment against it set aside and advance a new case – where the plaintiff sought extension of time to set aside judgment against it – where no explanation provided by plaintiff for failure to apply to have judgment set aside within time – where no explanation by plaintiff for failure to raise its new case during the trial – where the plaintiff argued the new case can be fairly determined on the evidence adduced at the trial – whether the evidence at trial was adduced for issues according to the pleadings or was relevant to unpleaded issues – whether the new case would risk injustice to the defendants by depriving them of the opportunity to conduct their case differently and adduce further evidence ESTOPPEL – ESTOPPEL BY DEED OR CONVENTION – ESTOPPEL BY CONVENTION – GENERALLY – where plaintiff argued the parties acted under a common assumption as to the duration of their contract – whether the evidence adduced at trial established a common assumption as to the duration of the contract – whether departure from the common assumption will cause detriment to the plaintiff PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where defendants seek their costs of the proceedings upon the indemnity basis – where defendant argued plaintiff advanced a case that should not have been advanced – where defendant argued that absent the plaintiff advancing this case the trial would have been conducted in one day – where defendant argued the plaintiff made “imprudent refusal” of offer to settle – whether defendants’ arguments give rise to basis for awarding costs upon the indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 7, 667 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, applied Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, applied MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39, applied Queensland Independent Wholesalers Limited v Coutts Townsville Pty Ltd [1989] Qd R 40, applied University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, applied Waterman v Gerling Australia Insurance Company Pty Ltd (2005) 65 NSWLR 300, applied Yorke v Lucas (1985) 158 CLR 661, cited |
COUNSEL: | No appearance for the plaintiff, the plaintiff’s submissions were heard on the papers No appearance for the defendants, the defendants’ submissions were heard on the papers |
SOLICITORS: | Dowd & Company Lawyers for the plaintiff Griffiths Parry Lawyers for the defendants |
[1] On 21 June 2012, after a six day trial, I dismissed the plaintiff’s claim against each defendant.[1] I directed the parties to file written submissions on costs.
[2] The plaintiff has since applied for orders setting aside that final judgment (as against the first defendant) and for leave to amend its Claim and Statement of Claim.
[3] This judgment determines that application by the plaintiff as well as the question of the costs of the proceedings, save for the question of the costs of the plaintiff’s application upon which I should hear the parties.
The plaintiff’s application
[4] In the judgment delivered on 21 June 2013, I held that the parties’ contract had expired before any time at which the plaintiff alleged that it was breached. That was a consequence of what I held to be its correct interpretation. The duration of the contract was the subject of extensive submissions. But there was no case which was pleaded or argued which was to the effect that by an estoppel or otherwise, the contract should not be given effect according to its terms which, it was common ground, were entirely within the contract document of September 2006.
[5] On the afternoon of Friday, 28 June 2013, the plaintiff’s solicitors sent an email to my associate. It was copied at the same time to the defendants’ solicitors, but they had been given no notice that it would be sent. It attached a draft application, a copy of an affidavit sworn by Mr Gear (a solicitor employed by the plaintiff’s solicitors) and a written submission of some 10 pages. These documents had not been filed. They were not filed until 9 July 2013.
[6] In his email to my associate, Mr Gear invited me to determine this application on the papers. On a later date, I received a written submission from the defendants, opposing the application. They also were content for the application to be determined without oral submissions.
[7] The application seeks leave (if required) to file an amended Claim and an amended Statement of Claim in the terms of drafts exhibited to Mr Gear’s affidavit. It sought an order, pursuant to r 7 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), for an extension of time to the extent necessary to set aside or vary the order made on 21 June 2013, namely that dismissing the plaintiff’s claim. The setting aside of that order was sought pursuant to r 667.
[8] Rule 667(1) provides:
“The court may vary or set aside an order before the earlier of the following—
(a)the filing of the order;
(b)the end of 7 days after the making of the order.”
In one or more of the circumstances specified in r 667(2), the Court may set aside an order at any time. But there is no suggestion that r 667(2) applies. Therefore, by r 667(1) there was a period of seven days after the making of the order on 21 June in which it could be set aside. But all which occurred within that seven day period was the sending of the email with its attachments to my associate on the afternoon of the seventh day. No attempt was made to file the application or bring the matter back into court within that period. As I have noted, no notice of this intended application had been provided to the defendants. It should be said also that the plaintiff’s communication with the Court without the prior knowledge, let alone consent, of the defendants was improper. As it happened, 28 June was also within the court vacation.
[9] The written submission in support of the application is extensive and no doubt took some time to write. It is not signed by counsel, particularly counsel who appeared for the plaintiff at the trial. But there is no explanation which is offered or apparent for the plaintiff’s failure to take steps to bring the matter on for determination within the period of seven days fixed by r 667(1). That is a relevant consideration, but of course not the only one.
[10] Another matter which is unexplained is the plaintiff’s failure to advance this new case during the trial. This is not an application which is prompted by the discovery of any further evidence. Rather, the plaintiff says that its new case can be fairly determined upon the evidence at the trial. Nor is it said that this new case, or any component of it, was one which had not occurred to the plaintiff and its lawyers prior to the judgment. Indeed, one component of this new case is a claim which was expressly disavowed by the plaintiff’s counsel at the trial.
[11] The affidavit of Mr Gear offers only this about why these matters were not raised at the trial:
“The amended claim and statement of claim seeks to raise an argument of estoppel, and include a claim for moneys had and received (in respect of a payment of $22,000 paid by the plaintiff to the first defendant), being matters which were not ascertained as being necessary to include, in the manner pleaded in [the draft amended statement of claim exhibited to his affidavit], until after trial.”[2]
This hardly reveals the reason why these matters were not pleaded and argued at the trial. This was not simply an omission to plead these matters, because they were not argued as well as not pleaded. The evidence does not reveal whether they were specifically considered but not pursued because of, for example, counsel’s advice. As already noted, they were not inspired by the discovery of any further evidence. I am left with the impression that it was only when the plaintiff’s claim was dismissed that they became matters which were “ascertained as being necessary to include” in order to avoid, if possible, a complete loss of the case.
[12] In relation to each of the proposed amendments, the submission for the plaintiff is that it does not matter that there was no pleaded case in these respects, because the evidence which would have been relevant to them is amongst the evidence at the trial and the case should be decided (or re-decided) upon the evidence and unconfined by the pleadings as they were at the trial. This submission is said to be supported by comments made by Dawson J in Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd as follows:
“But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings.”[3]
[13] The submission misstates the effect of that passage. Dawson J was describing a trial in which the existence of issues, although unpleaded, is nevertheless clear from the fact that evidence which raises fresh issues is admitted without objection at the trial, so that those issues became part of “the real controversy between the parties.” In the present case, the evidence upon which the plaintiff would now rely was adduced at the trial because it was relevant, or said by the plaintiff to be relevant, to the issues according to the pleadings. It was not evidence which raised unpleaded issues and thereby widened the real controversy between the parties.
[14] Dawson J was there explaining that this is a question of procedural fairness, such that if a trial has been conducted upon clearly raised issues beyond the pleadings, there should be no impediment to a determination of the real controversy. His judgment, although in dissent, is not inconsistent on this question of principle with those of the majority. In that case, Mason CJ and Gaudron J said:
“The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq),[4] per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, eg, Browne v Dunn;[5] Mount Oxide Mines.[6]” [7]
[15] In the same case, Brennan J[8] said that the relevant rule was clearly laid down in the judgment of the High Court in Dare v Pulham as follows:
“Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [v Mount Oxide Mines Ltd (In liq)];[9] Sri Mahan Govind Rao v Sita Ram Kesho).[10]”[11]
[16] Therefore, the judgment of Dawson J does not support the plaintiff’s present submission and indeed that judgment, and more particularly the majority judgments in the same case, are adverse to it.
[17] It is not sufficient for the plaintiff simply to point to evidence which would be relevant also to an unpleaded issue. The plaintiff must demonstrate at least the absence of a risk of injustice to the defendants, by the absence of the possibility that the case would have been conducted differently by the other party had the new case in issue been raised by the pleadings.[12] In University of Wollongong v Metwally (No 2), the Court (Gibb CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”[13]
[18] Those statements were made, of course, in the context of appeals. But they are just as relevant in the present context. In Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd, Mason CJ and Gaudron J explained the bases for this rule as follows:
“Some aspects of that rule appear to derive from public policy considerations directed to ensuring the finality of litigation. On the other hand, some aspects of the rule may have their genesis in estoppel by election in the conduct of litigation, although, if so, the relevant consideration is not that the other party is put in a worse position but that he or she may have been so placed.”[14]
[19] I go then to the proposed additions to the plaintiff’s case, each of which would raise for determination factual questions.
[20] The first is a case which is to the effect that the contract became subject to the operation of an estoppel by convention, with the consequence that effectively its duration was initially a period of one year from the time at which “the First Defendant developed the capacity to produce Product A.” It is proposed to add to the pleading a paragraph 25A as follows:
“25A.Alternatively, in the premises of paragraphs 59 and 60, at all material times the parties acted pursuant to a mutual assumption:
(a)the Plaintiff assumed that the Manufacturing Agreement would not commence operation until the First Defendant developed the capacity to produce Product A;
(b)the First Defendant assumed that the Manufacturing Agreement would not commence operation until it developed the capacity to produce Product A.”[15]
Paragraph 59 would be amended to include a number of emails passing between the parties, further to those already pleaded within that paragraph, the earliest being on 7 February 2007 and the latest on 1 November 2008. Paragraph 60, which alleged that on or about 25 June 2006 Nathan Magnus conducted some Hydromulch tests the results of which he reported to the defendants, is not proposed to be amended in any substantial way. It may be noted that this event predated the contract.
[21] Each of the emails upon which the plaintiff would rely for this argument was part of the evidence at the trial. But evidence of the post-contractual dealings between the parties, of which these emails were part, was at least potentially relevant to issues which were raised by the pleadings. In particular, there was the plaintiff’s case, which was abandoned at the conclusion of the trial, which was to the effect that the defendants had misled the plaintiff about their intention to perform the contract. It was relevant to examine the first defendant’s entire conduct in developing its manufacturing capacity for one or more of the relevant products and the communications between the parties upon that subject.
[22] In the judgment, I discussed the difference between the plaintiff’s pleaded case and its ultimate argument about the duration of the contract.[16] Another amendment now proposed by the plaintiff would be made to paragraph 25(d) to plead an alternative interpretation of the contract by which its duration would be one year commencing on the date on which the first defendant developed the capacity to supply Product A.
[23] The plaintiff’s present submission appears to suggest that no further evidence would be necessary as a result of the inclusion of this estoppel case. That is far from clear. It may be that the plaintiff would not wish to lead further evidence. But it is another thing to say that the defendant would not wish to do so or that the conduct of the trial, insofar as that went to the post-contractual dealings between the parties, would not have been any different had this estoppel case then been pleaded. It seems to me that the inclusion of that estoppel case almost certainly would have affected the course of the evidence, both in the cross-examination of relevant witnesses for the plaintiff and in the evidence in chief of some of the defendants’ witnesses, including the second defendant. After all, the parties did not deal with each other only in writing.
[24] The likelihood of some further evidence on this question is stronger for the fact that the series of emails, which would be the entire basis of the plaintiff’s case for this estoppel, do not present a compelling case of a common assumption as the plaintiff now suggests. In Queensland Independent Wholesalers Limited v Coutts Townsville Pty Ltd, McPherson J (Andrews CJ and Demack J agreeing) said that:
“To produce [an estoppel by convention] the acts or conduct relied upon must point plainly, if not unequivocally, to the assumption put forward as the conventional basis of relations. A course of dealing that is explicable by reference to some other equally plausible assumption inevitably falls short of establishing that the parties accept as the basis of their relations the particular assumption contended for.”[17]
Here the plaintiff would have to establish that in the way in which the parties acted towards each other, their contract had a certain effect as to its duration. An alternative possibility was that the parties did not have a clear and unambiguous common understanding of the existence of a certain contract, but instead were acting towards each other with an apparent intention to do business with the other once the defendant became able to manufacture the relevant product or products. For example, there is the defendant’s email of 18 October 2006, discussed at [44] of the judgment, in which there was a suggestion for some further agreement, which would vary the provisions for minimum orders by certain dates because of the delay being experienced even at that point in the development of the defendant’s manufacturing capacity.
[25] The proposed estoppel pleading does not appear to include an essential element of such a case, namely that “a conventional estoppel will not arise unless departure from the assumption will occasion detriment to the plaintiff”, as Brereton J (as he then was) said in Waterman v Gerling Australia Insurance Company Pty Ltd.[18] Brereton J cited MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd where Hodgson JA (with the agreement of Beazley and Ipp JJA) said:
“However, I do not accept Mr Newlinds’ submission that reliance and detriment are not essential for the existence of conventional estoppel. The passage from Con-Stan refers inter alia to Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641, in which Dixon J makes it clear that the relevant principle is that ‘the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations’ (at 674), this involving both (1) action such that the party relying on the estoppel would suffer a detriment if the other party were afterwards allowed to set up rights inconsistent with the assumption; and also (2) that the party against whom the estoppel is asserted ‘must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it’ (at 675). See also Thompson v Palmer (1933) 49 CLR 507 at 547. In my opinion, common law estoppel by representation or conventional estoppel still requires that the party relying on the estoppel must have ‘placed himself in a position of significant disadvantage if departure from the assumption be permitted’: see Verwayen at 444.” [19]
[26] Because there is no proposed pleading of this element, there is no identification of the evidence (if any) upon which the plaintiff would wish to rely for it. It should be noted that any detrimental reliance of this kind would not be provided by the loss and damage which the plaintiff claimed had resulted from a breach of the contract. Rather, it would be for the plaintiff to prove how it would have acted differently had the defendant not apparently accepted that the year of the contract was yet to commence. For example, the plaintiff might wish to say that there was detrimental reliance by its not securing an alternative supplier. But that would have to be pleaded and proved. Moreover, there is, of course, the question of how the defendants’ case might have been conducted, in relation to this element of the estoppel case, had the estoppel been pleaded at the trial.
[27] Therefore, this proposed estoppel case, if now permitted, would raise substantial questions of fact, which would be likely to involve further evidence and which, had they been raised at the trial, are likely to have affected the defendant’s conduct of the case. The plaintiff should not be permitted to now plead it.
[28] The other proposed argument is in relation to the payment of $22,000 which I discussed in my judgment at paragraphs [36], [81] and [82]. There I recorded that the plaintiff claimed no relief in relation to the payment and that, for example, there was no claim for its return on the basis of a failure of consideration. Now the plaintiff wishes to make that very claim. It wishes to plead that the consideration for this payment wholly failed. As to what that consideration was, the plaintiff’s pleading at the trial pleaded that the sum was paid “as a pre-payment for an order of 7,000 bales of Product (in the form of 100% shredded paper)” and “as a co-investment to get the Product manufactured …”[20] It is not entirely clear that the second element of that consideration did fail.
[29] During the course of the final address by counsel for the plaintiff, I asked him whether there was a claim for repayment of this sum and he confirmed that there was not.[21] No application was then made to amend to add such a claim.
[30] Again, this amendment would raise new issues of fact, for which it cannot be safely concluded that all of the relevant evidence has been adduced already and that the conduct of the defendant’s case would have been no different had there been such a claim. Although the payment of $22,000 was the subject of some evidence, it is unlikely to have received the particular attention, in the defendant’s case at least, that it would have received had this new case been pleaded at the trial. In my conclusion, the plaintiff ought not to be permitted to raise this new case.
[31] Therefore, the plaintiff’s application to set aside the judgment and to amend its case, as filed on 9 July 2013, will be refused. I will hear the parties as to the costs of that application.
Costs of the proceedings
[32] The defendants seek their costs of the proceedings upon the indemnity basis. The plaintiff says that there should be no order as to costs or that it should have to pay only some proportion of the defendants’ costs, assessed on a standard basis and only from a certain date.
[33] It is convenient to first discuss the position of the second defendant. At the end of the trial the plaintiff abandoned its cases against the defendants under the Trade Practices Act 1974 (Cth) (“the Act”). That left the plaintiff with no claim at all against the second defendant.
[34] He was said to have been a person involved in the first defendant’s contravention of s 52 of the Act, by aiding, abetting, counselling or procuring the contravention or by being knowingly concerned in it.[22]
[35] It was his conduct which was relied upon as the conduct of the first defendant for the purposes of this claim. It was common ground that he effectively owned and controlled the first defendant. But the case pleaded against him required more than proof of those matters. It required proof of his knowledge of the essential elements of the alleged contravention.[23] Therefore, the effect of the case against him was that he represented that the company had the capacity and the intention to manufacture various products, whilst knowing those representations to be false.
[36] Because the claims under the Act were abandoned, it should not be now assumed that they were without a factual basis. But the particularly serious nature of the allegation against him makes it yet more difficult for the plaintiff to say that he should not have his costs.
[37] Turning to the plaintiff’s submissions as to why it should not have to pay costs to either defendant, the defendants are criticised for raising various arguments which were not ultimately persuasive and refers to paragraphs [14], [77] and [80] of the judgment. That may be accepted, but of course overall the plaintiff was entirely unsuccessful and ordinarily a successful party is not deprived of its costs simply because some of its arguments are not accepted.
[38] The plaintiff submits that the defendants were ultimately successful on a point which was not “articulated on the pleadings, was not advanced in written submissions, and was not advanced at trial.”[24] The point on which the first defendant did succeed was that of the duration of the contract. The plaintiff now says that “the plaintiff advanced its case to trial, and conducted the trial to closing submissions, on the basis that the contract commenced upon the defendant developing the capacity to manufacture the order.”[25] That misstates what was in issue. At [24], I referred to the discord between the written submissions for the defendant and its pleading, which disputed the construction of cl 5.1 as had been alleged in the statement of claim. The duration of the contract was clearly in issue on the pleadings. The defendant’s pleading was consistent with the defendant’s conduct in 2009, in which it contended that the contract had expired.
[39] There was a substantial question as to what product or products were to be supplied under the contract. I accepted the defendant’s case on that question. But I left open the question of whether that of itself would have been a complete answer to the plaintiff’s case.[26]
[40] The plaintiff’s submission that it should not have to pay any, or at least all, of the defendants’ costs seems to depend upon its assertion, which is incorrect, that it would not have to prove that it had a contract in operation at the time of the breaches of which it complained. In my view, the plaintiff has shown no reason for not allowing to each of the defendants the costs of the proceedings.[27] The question then is whether any of these costs should be assessed upon the indemnity basis.
[41] The defendants advanced two grounds for an order for indemnity costs. The first is that the plaintiff’s conduct of its case is said to have been in contravention of the implied undertaking within the UCPR, r 5(3), so that an appropriate sanction under r 5(4) is an order for indemnity costs. This argument returned to the issue which the defendants had claimed was a complete answer to the plaintiff’s claim, which was that of the product or products which were the subject of the contracts. It is now argued that the plaintiff’s case on that question was so contrary to the plain meaning of the contract that it should not have been advanced. And then it is said that absent that question, the trial could have been completed within one day. I do not accept either of those propositions. The question of interpretation of the word “hydromulch” in the contract was one for which the plaintiff had an arguable, although ultimately unsuccessful, case. And it is impossible to accept that the trial would have taken only one day, absent that question. Much of the trial would still have been occupied with evidence which, at the time, was admissible upon the statutory claims which were made by the plaintiff. The question of damages also had to be litigated.
[42] I do not accept therefore the first of the grounds advanced for indemnity costs. The second of them is the plaintiff’s rejection of an offer to settle, which was made in December 2010. The defendants offered to pay $30,000 in full satisfaction of the plaintiff’s claims, with each party bearing its own costs (save for certain orders for costs then in the defendants’ favour). The rejection of that offer does not engage any procedural rule. But an “imprudent rejection” of an offer to settle can provide a circumstance which warrants the imposition of indemnity costs.[28] In hindsight, it can certainly be said that the plaintiff ought to have accepted that offer. But it had an arguable case for damages for breach of contract, and had it succeeded in having the contract interpreted according to its case, it would have obtained a large award of damages, particularly in comparison with the relatively small sum which was offered. In my view, the rejection of this offer was not so imprudent or unreasonable as to warrant indemnity costs.
[43] For these reasons, the plaintiff will be ordered to pay to the defendants their costs of the proceedings apart from the costs of the application filed on 9 July 2013. I will hear the parties on the costs of that application.
Footnotes
[1] Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd & Anor [2013] QSC 163.
[2] Affidavit of Chad Walter Gear, sworn 28 June 2013, para. 3.
[3] (1990) 169 CLR 279 at 296-297.
[4] (1916) 22 CLR 490 at 517.
[5] (1893) 6 R (HL) 76.
[6] (1916) 22 CLR at 517-518.
[7] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287.
[8] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 288.
[9] (1916) 22 CLR 490 at 517, 518.
[10] (1898) LR 25 Ind. App. 195 at 207.
[11] Dare v Pulham (1982) 148 CLR 658 at 664.
[12] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.
[13] (1985) 60 ALR 68 at 71.
[14] (1990) 169 CLR 279 at 284.
[15] Exhibit CWG-1 to the affidavit of Chad Walter Gear sworn 28 June 2013.
[16] Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd & Anor [2013] QSC 163 at [19]-[20].
[17] [1989] Qd R 40 at 46.
[18] (2005) 65 NSWLR 300 at 322-323.
[19] [2005] NSWCA 39 at [72].
[20] Statement of Claim, paragraph 22.
[21] T 6-14, ll 7-11.
[22] Second Further Amended Statement of Claim, para. 41.
[23] Yorke v Lucas (1985) 158 CLR 661.
[24] Plaintiff’s Submissions on Costs, para. 25.
[25] Plaintiff’s Submissions on Costs, para. 25.
[26] Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd & Anor [2013] QSC 163 at [73].
[27] Save for the costs of the application as filed on 9 July 2013.
[28] Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233.