Court of Appeal

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Ross v Leach [2014] QCA 126 (14/0032) Muir and Gotterson and Morrison JJA 30/05/2014

Full-text: QCA14-126.pdf

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.