Alford & Ors v Ebbage & Ors

[2004] QCA 283

Queensland Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › General principles
3. › Interference with judge's findings of fact
4. › Functions of appellate court
5. › Whether documentary evidence compelled finding contrary to trial judge's conclusions
6. › Whether Fox v Percy principles warranted disturbing findings
1. Appeal
2. › General principles
3. › Points and objections not taken below
4. › When not allowed to be raised on appeal
5. › Questions not raised in pleadings or in argument
6. › Application to amend pleadings on appeal to allege agency
7. › Whether leave should be granted
8. › Whether case below would have been differently conducted
1. Contract
2. › Offer and acceptance
3. › Contract implied from conduct of parties
4. › Whether existence of joint venture agreement can be inferred from overall conduct of parties
5. › Whether parties intended to be bound notwithstanding further terms to be agreed
6. › Whether essential terms agreed
1. Contract
2. › Joint ventures
3. › Formation
4. › Whether tripartite joint venture agreement established
5. › Whether bilateral agreement between two of three alleged parties sufficient to support claim for tripartite venture

Quick Take

The existence of a joint venture agreement may be inferred from the overall conduct of the parties rather than by seeking to identify formal offer and acceptance, but the case actually pleaded and litigated constrains the findings available on appeal. A party whose credibility has been comprehensively rejected at trial faces an extremely difficult task in persuading an appellate court that documentary evidence alone compels a different finding. Late applications to amend pleadings on appeal to raise agency will be refused where the case below would have been differently conducted and the amendment would fail on the evidence led.