Aguilar v Egnalig - [2017] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

Aguilar & Anor v Egnalig [2017] QCA 175

PARTIES:

MARTIN AGUILAR
(first applicant)
MARIA LUISA (MALOU) AGUILAR
(second applicant)
v
ANACELIA EGNALIG
(respondent)

FILE NO/S:

Appeal No 13391 of 2016
DC No 2553 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2016] QDC 291 (Dick SC DCJ)

DELIVERED ON:

18 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2017

JUDGES:

Morrison JA and Applegarth and Boddice JJ

ORDER:

Application refused, with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – where the applicant seeks leave to appeal a decision of the District Court to not set aside a decision of the Magistrates Court granting summary judgment against the applicants – where the applicants contend that the appeal raises an important point of law or a question of general public importance, and that the appeal is necessary to correct a substantial injustice – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118 (3)
Uniform Civil Procedure Rules 1999 (Qld), r 163, r 225, r 292, r 302

Attorney-General (Qld) v Lawrence[2011] QCA 347, applied
Coles Group Limited v Costin[2015] QCA 140, applied

COUNSEL:

L Stephens for the applicants
C Descola (sol) for the respondent

SOLICITORS:

Alexander Law for the applicants
Winthrop Mason Lawyers for the respondent

MORRISON JA: I agree with the reasons of Boddice J and the orders proposed by his Honour.
APPLEGARTH J: I agree with the reasons of Boddice J, and with the orders proposed by his Honour.
BODDICE J: On 23 November 2016, a Judge of the District Court dismissed the applicants’ appeal from a decision of the Magistrates Court of 3 June 2016 dismissing the applicants’ application to set aside summary judgment entered on 15 January 2016.
The applicants seek leave to appeal the decision of the District Court of 23 November 2016. The applicants submit that leave to appeal ought to be granted as the appeal raises an important point of law or question of general public importance, namely, the test to be applied to set aside a summary judgment given against a party who did not appear on the hearing of the application, and that the appeal is necessary to correct a substantial injustice to the applicants.
The respondent opposes the grant of leave to appeal. The respondent submits that no important point of law or question of general public importance arises and, further, there is no evidence of a substantial injustice.
Background
On 13 November 2014, the respondent filed a claim and statement of claim against the applicants claiming damages for breach of contract, misrepresentation, fraud and negligence. The claim arose out of an allegation that the respondent had paid money to the applicants in exchange for migration agency services which the applicants failed to provide to the respondent.
On 17 December 2014, the applicants filed a defence to the respondent’s claim.…

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.

Keep reading for free

Create a free CaseChat account to read Aguilar v Egnalig and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCA 175
Decision Date: 18 August 2017

CaseChat Overview and Summary

In the matter of Aguilar v Egnalig, the applicants sought leave to appeal against a decision of the District Court, which dismissed their application to set aside a summary judgment granted by the Magistrates Court against them. The summary judgment was based on the applicants' failure to comply with the Magistrates Court's orders for disclosure, particulars, and a trial date, as well as the striking out of certain paragraphs from their defence. The applicants argued that the appeal raised an important point of law or a question of general public importance and that it was necessary to correct a substantial injustice. The respondent, on the other hand, opposed the grant of leave to appeal, contending that no important point of law or question of general public importance arose, and that there was no evidence of a substantial injustice.

The primary legal issues before the court were whether the applicants' appeal raised an important point of law or a question of general public importance and if the appeal was necessary to correct a substantial injustice. The court had to determine if the applicants' contentions about their past legal representation were valid reasons for their failure to comply with the orders and if the applicants had made sufficient efforts to rectify their non-compliance. Additionally, the court had to consider whether the appeal presented a point of law that needed clarification or had broader implications for the legal system.

The court, after reviewing the history of the proceedings, concluded that the applicants had not complied with the orders of the Chief Magistrate, leading to the entry of summary judgment against them. The court found that the applicants had not provided satisfactory explanations for their non-compliance and that the applicants had not appealed the orders that led to the striking out of parts of their defence. The court held that the applicants had not demonstrated that the appeal raised an important point of law or a question of general public importance, nor had they shown that the appeal was necessary to correct a substantial injustice. Therefore, the court refused the applicants' application for leave to appeal.

The court ordered that the application for leave to appeal be refused, with costs to be paid by the applicants. This decision underscores the importance of complying with court orders and the consequences of failing to do so, while also highlighting the stringent criteria required for an appeal to be granted leave to proceed.

Orders

Orders of the court

Application refused, with costs.

Background

Background to the litigation

The respondent opposes the grant of leave to appeal. The respondent submits that no important point of law or question of general public importance arises and, further, there is no evidence of a substantial injustice.Background On 13 November 2014, the respondent filed a claim and statement of claim against the applicants claiming damages for breach of contract, misrepresentation, fraud and negligence. The claim arose out of an allegation that the respondent had paid money to the applicants in exchange for migration agency services which the applicants failed to provide to the respondent. On 17 December 2014, the applicants filed a defence to the respondent’s claim. An amended defence was filed 16 January 2015. After a change of legal representation, a further amended defence was filed on 7 May 2015. On 29 June 2015, the respondent filed an application for orders against the defendants in relation to pleadings, particulars and disclosure. It was returnable on 7 August 2015. On 6 July 2015, the applicants filed a second further amended defence. In that defence, the applicants denied any breach of contract, misrepresentation, fraud and negligence. The applicants alleged that the failure to provide migration agency services was as a consequence of the respondent’s failure to comply with her obligations in relation to the pre-requisites for migration. Notwithstanding that further document, the respondent proceeded with the application for orders in respect of disclosure, pleadings and particulars. At the hearing of the application, the applicants, who were now self-acting, successfully sought an adjournment to 21 August 2015. On 21 August 2015, the applicants, who were now represented by different legal representatives, successfully sought a further adjournment of the hearing of the application to 18 September 2015. That hearing, rescheduled to 24 September 2015 was itself adjourned on the respondent’s application to 10 November 2015. On 10 November 2015, neither the applicants nor their legal representatives attended the hearing of the respondent’s application. The Chief Magistrate made orders striking out certain paragraphs of the second further amended defence. Orders were also made in relation to the provision of further particulars and further disclosure. On 18 November 2015, the respondent filed an application for summary judgment, returnable on 14 December 2015. It sought summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules. On 18 November 2015, the summary judgment application was adjourned to 15 January 2016 at the request of the applicants’ solicitors, who appeared by telephone. On 15 January 2016, the applicants’ solicitors did not attend the summary judgment hearing. Summary judgment was entered against the defendants pursuant to rule 292 of the Uniform Civil Procedure Rules or alternatively, pursuant to rule 225(2)(b) or rule 163 due to the applicants’ failure to comply with the order for particulars and disclosure made by the Chief Magistrate on 10 November 2015. The applicants were ordered to pay damages to the plaintiff in an amount to be assessed as well as costs of the proceedings fixed in the sum of $3,133.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 5 February 2016, the applicants obtained further alternate legal representation.Application to set aside summary judgment On 10 March 2016, the applicants filed an application to set aside the summary judgment. That application was returnable on 18 April 2016. On 18 April 2016, the applicants’ legal representatives successfully applied to adjourn the application to set aside summary judgment to 20 May 2016. The basis for the application was that the applicants required time to obtain further supporting evidence, including evidence of failures on the part of their previous legal representatives. On 20 May 2016, the application to set aside summary judgment was adjourned further to 3 June 2016, again on the applicants’ application. The basis for that adjournment was also to gather further supporting evidence. On 3 June 2016, the applicants’ application to set aside the summary judgment was heard by Magistrate Shearer. At that hearing, the applicants also sought to have heard an application to withdraw certain deemed admissions as a consequence of the Chief Magistrate’s earlier orders striking out parts of the previous defence. Those orders were never the subject of an appeal by the applicants. Magistrate Shearer dismissed the defendants’ application to set aside the summary judgment. Magistrate Shearer found that the applicants had not complied with the orders made by the Chief Magistrate and had made deemed admissions due to the striking out of aspects of their pleading, which pleading had been filed on their instructions and with their approval. In reaching that latter conclusion, the learned Magistrate found the applicants had not given proper explanations for the failures to comply with the Chief Magistrate’s orders, to attend the hearing of that summary judgment application and to file material in opposition to that application. The learned Magistrate did not accept the applicants’ assertions that those failures were because they did not know about the application or hearing date.District Court appeal In dismissing the applicants’ appeal, the learned Judge after setting out a detailed history of the proceeding, observed that the learned Magistrate had noted that the applicants had not complied with the orders of the Chief Magistrate on 10 November 2015 and that summary judgment had been given on the basis of a failure to comply with those orders and earlier orders in relation to proper disclosure and service of a request for a trial date. Further, the pleadings contained admissions to all of the elements of the cause of action, some of which were deemed admissions consequent upon the earlier orders striking out paragraphs of the second further amended defence. The learned Judge also observed that the learned Magistrate had given the applicants an opportunity to place evidence before the Court in support of their assertions that past legal representation was the explanation. When the matter returned for further hearing, the learned Magistrate had before him an affidavit from the applicants’ previous solicitors containing sworn assertions that the pleadings had been drafted in accordance with the applicants’ instructions and that the applicants had subsequently instructed those pleadings were accurate.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Aguilar & Anor v Egnalig [2017] QCA 175
PARTIES:	MARTIN AGUILAR (first applicant) MARIA LUISA (MALOU) AGUILAR (second applicant) v ANACELIA EGNALIG (respondent)
FILE NO/S:	Appeal No 13391 of 2016 DC No 2553 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – [2016] QDC 291 (Dick SC DCJ)
DELIVERED ON:	18 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2017
JUDGES:	Morrison JA and Applegarth and Boddice JJ
ORDER:	Application refused, with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – where the applicant seeks leave to appeal a decision of the District Court to not set aside a decision of the Magistrates Court granting summary judgment against the applicants – where the applicants contend that the appeal raises an important point of law or a question of general public importance, and that the appeal is necessary to correct a substantial injustice – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118 (3) Uniform Civil Procedure Rules 1999 (Qld), r 163, r 225, r 292, r 302 Attorney-General (Qld) v Lawrence[2011] QCA 347, applied Coles Group Limited v Costin[2015] QCA 140, applied
COUNSEL:	L Stephens for the applicants C Descola (sol) for the respondent
SOLICITORS:	Alexander Law for the applicants Winthrop Mason Lawyers for the respondent