Abu-Dubat v Lucas - [2019] QDC 251

DISTRICT COURT OF QUEENSLAND

CITATION:

Abu-Dubat v Lucas [2019] QDC 251

PARTIES:

THAER ABU-DUBAT

(Appellant)

v

DOREEN LUCAS

(First Respondent)

and

GEORGE LUCAS

(Second Respondent)

FILE NO/S:

M5835/2016; D3455/2019

DIVISION:

PROCEEDING:

Civil appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

9 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2019

JUDGE:

McGill SC DCJ

ORDER:

Appeal allowed. 1.

All orders of the Magistrates Court at Brisbane made on 27 August and 18 September 2019 in this matter be set aside. 2.

The amended claim and statement of claim filed by the plaintiff on 13 September 2019 be struck out. 3.

Leave to the plaintiff to file and serve an amended claim and statement of claim within 14 days.4.

Leave to the defendants to file and serve an amended defence by 31 January 2020. 5.

Leave to the plaintiff to file and serve an amended reply by 14 February 2020. 6.

Any application for further disclosure or other interlocutory relief to be filed by 10 February 2020. 7.

Proceeding transferred to the District Court at Brisbane under the Civil Proceedings Act 2011 s 26(1). 8.

Order that the respondents pay the appellant’s costs of the appeal. 9.

Grant the respondents an indemnity certificate under the Appeal Costs Fund Act 1973 s 15.10.

Order that the costs of each party of the proceeding in the Magistrates Court on 29 August and 18 September 2019 be that party’s costs in the proceeding.11.

CATCHWORDS:

APPEAL AND NEW TRIAL – Mistake of law – whether claim barred by expiration of limitation period – whether money order on equitable grounds available in Magistrates Court – whether consideration for contract – orders and directions made contrary to the principles of natural justice.

Magistrates Courts Act 1921 s 4(c).

Amaca Pty Ltd v Ridgeway [2005] NSWCA 417 – cited.
Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175 – cited.
Dunlop v Selfridge [1915] AC 847 – cited.
Haller v Ayre [2005] 2 Qd R 410 – cited.
Hartnett v Hynes [2009] QSC 225 – cited.
Jawhite Pty Ltd v Trabme [2019] QCA 7 – followed.
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 – cited.
Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267 – cited.
The Commonwealth v Verwayen (1990) 170 CLR 394 – cited.

COUNSEL:

A Fronis for the appellant

First respondent for the respondents

SOLICITORS:

Provest Law for the appellant

The respondents were not represented

By a statement of claim filed on 7 December 2016, the plaintiff claimed, pursuant to an agreement allegedly made in 2013, repayment of certain money lent by the plaintiff to the defendants in 2008, and in 2014 and 2015. The action was defended, and evidently progressed fairly slowly, but was set down for trial in the Magistrates Court at Brisbane on 27 August 2019. On that date it came on for trial before Magistrate Coates, but the trial did not proceed.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abu-Dubat v Lucas

Details

AGLC: Abu-Dubat v Lucas [2019] QDC 251
Case: [2019] QDC 251
Decision Date: 9 December 2019

CaseChat Overview and Summary

Abu-Dubat v Lucas was heard by the Queensland Court of Appeal, where the appellant sought to overturn a decision of the Magistrates Court of Queensland. The primary dispute centred on whether the claim was barred by the expiration of the limitation period, the availability of a money order on equitable grounds in the Magistrates Court, and whether consideration existed for a contract. Additionally, the appellant contested the fairness of orders and directions made by the Magistrates Court.

The legal issues that the Court of Appeal had to address included whether the Magistrates Court had jurisdiction to make certain orders and whether those orders contravened the principles of natural justice. Furthermore, the Court had to determine if the plaintiff's claim was indeed barred by the statute of limitations and if there was valid consideration for the contract in question. The Court also needed to assess whether a money order on equitable grounds was an appropriate remedy in the Magistrates Court.

The Court of Appeal found that the Magistrates Court's orders and directions were contrary to the principles of natural justice and thus invalid. The Court also concluded that the plaintiff's claim was not barred by the statute of limitations and that there was sufficient consideration for the contract. However, the Court ruled that a money order on equitable grounds was not an appropriate remedy for the Magistrates Court to grant. Consequently, the Court set aside all orders made by the Magistrates Court and allowed the appeal, directing the transfer of the proceeding to the District Court.

The Court ordered that the respondents pay the appellant's costs of the appeal, granted the respondents an indemnity certificate, and directed that the costs of each party in the Magistrates Court proceeding be borne by that party. The appellant was given leave to file and serve an amended claim and statement of claim within 14 days, while the respondents had until 31 January 2020 to file and serve an amended defence. The plaintiff was also granted leave to file and serve an amended reply by 14 February 2020, with any application for further disclosure or interlocutory relief to be filed by 10 February 2020.

Orders

Orders of the court

Appeal allowed. 1.

All orders of the Magistrates Court at Brisbane made on 27 August and 18 September 2019 in this matter be set aside. 2.

The amended claim and statement of claim filed by the plaintiff on 13 September 2019 be struck out. 3.

Leave to the plaintiff to file and serve an amended claim and statement of claim within 14 days.4.

Leave to the defendants to file and serve an amended defence by 31 January 2020. 5.

Leave to the plaintiff to file and serve an amended reply by 14 February 2020. 6.

Any application for further disclosure or other interlocutory relief to be filed by 10 February 2020. 7.

Proceeding transferred to the District Court at Brisbane under the Civil Proceedings Act 2011 s 26(1). 8.

Order that the respondents pay the appellant’s costs of the appeal. 9.

Grant the respondents an indemnity certificate under the Appeal Costs Fund Act 1973 s 15.10.

Order that the costs of each party of the proceeding in the Magistrates Court on 29 August and 18 September 2019 be that party’s costs in the proceeding.11.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Abu-Dubat v Lucas [2019] QDC 251
PARTIES:	THAER ABU-DUBAT (Appellant) v DOREEN LUCAS (First Respondent) and GEORGE LUCAS (Second Respondent)
FILE NO/S:	M5835/2016; D3455/2019
DIVISION:
PROCEEDING:	Civil appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	9 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2019
JUDGE:	McGill SC DCJ
ORDER:	Appeal allowed. 1. All orders of the Magistrates Court at Brisbane made on 27 August and 18 September 2019 in this matter be set aside. 2. The amended claim and statement of claim filed by the plaintiff on 13 September 2019 be struck out. 3. Leave to the plaintiff to file and serve an amended claim and statement of claim within 14 days.4. Leave to the defendants to file and serve an amended defence by 31 January 2020. 5. Leave to the plaintiff to file and serve an amended reply by 14 February 2020. 6. Any application for further disclosure or other interlocutory relief to be filed by 10 February 2020. 7. *Proceeding transferred to the District Court at Brisbane under the Civil Proceedings Act* 2011 s 26(1). 8. Order that the respondents pay the appellant’s costs of the appeal. 9. Grant the respondents an indemnity certificate under the Appeal Costs Fund Act 1973 s 15.10. Order that the costs of each party of the proceeding in the Magistrates Court on 29 August and 18 September 2019 be that party’s costs in the proceeding.**11.
CATCHWORDS:	APPEAL AND NEW TRIAL – Mistake of law – whether claim barred by expiration of limitation period – whether money order on equitable grounds available in Magistrates Court – whether consideration for contract – orders and directions made contrary to the principles of natural justice. Magistrates Courts Act 1921 s 4(c). Amaca Pty Ltd v Ridgeway [2005] NSWCA 417 – cited. Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175 – cited. Dunlop v Selfridge [1915] AC 847 – cited. Haller v Ayre [2005] 2 Qd R 410 – cited. Hartnett v Hynes [2009] QSC 225 – cited. Jawhite Pty Ltd v Trabme [2019] QCA 7 – followed. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 – cited. Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267 – cited. The Commonwealth v Verwayen (1990) 170 CLR 394 – cited.
COUNSEL:	A Fronis for the appellant First respondent for the respondents
SOLICITORS:	Provest Law for the appellant The respondents were not represented