Queensland Judgments
Authorised Reports & Unreported Judgments
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Arrowsmith v Micallef & Ors

Unreported Citation:

[2013] QCA 143

EDITOR'S NOTE

In this matter orders were made in the Supreme Court in relation to the distribution of an estate.  The appellant appealed those orders primarily on the ground that an adjournment should have been granted to enable her to adduce further evidence.  That further evidence was claimed to be relevant to the terms of an agreement between the parties on which the judgment of the Court was based and what had occurred in a mediation between the parties.  It was claimed that the evidence which might have been adduced was extrinsic evidence relevant to the terms of the settlement.  Peter Lyons J (with whom the other members of the Court agreed) held;

  • That where there has been a refusal to grant an adjournment the proper course is to appeal against the final decision and not against the refusal of the adjournment.  The rationale for that approach is that if the refusal to grant an adjournment was erroneous then the party has not had a fair hearing and the decision of the Court should be set aside.
  • That where the order of a court incorporates an agreement between the parties, the Court order is, to that extent, to be construed in the same manner as any agreement between parties.  In this respect, extrinsic evidence is admissible to construe the order by the application of the Codelfa principles.  In the case before the Court extrinsic evidence was admissible because there was a relevant ambiguity and given that it contained a release, such a clause has to be construed in the context of its background facts.

That in the circumstances of the case the discretion to refuse an adjournment had miscarried as there was relevant evidence which the appellant was entitled to adduce for the purposes of construing the agreement.

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