Apap v Treanor - [2003] QCA 406

SUPREME COURT OF QUEENSLAND

CITATION:

Apap & Ors v Treanor & Ors [2003] QCA 406

PARTIES:

MARIA APAP and ANDREW GEORGE APAP
(first plaintiffs/first respondents/first cross applicants)
UGANA PLANTATIONS PTY LTD ACN 073 831 884 as trustee for the NICOTRA PLANTATION TRUST and NICOTRA PROPERTY TRUST
(second plaintiff/second respondent/second cross applicant)
v
DALE ROBERT TREANOR
(first defendant/applicant/cross respondent)
CHARLES MUSCAT and TINA MUSCAT
(second defendants)

FILE NO/S:

Appeal No 5643 of 2003
DC No 4713 of 2001
DC No 2155 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2003

JUDGES:

McMurdo P, Muir and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal refused with costs
Application for leave to cross appeal refused with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL - where respondents commenced two actions in the District Court seeking damages for breach of contract or negligence – where the first action is a sub-set of the second action – where learned primary judge refused to make an order consolidating the actions but made orders joining additional parties out of time - where applicant seeks leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld) – whether applicant has been unjustly deprived of his right to pursue a defence based on the expiry of the limitation period

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – INTEREFERENCE WITH DISCRETION OF COURT BELOW – INTERLOCUTORY ORDERS - where cross applicants seek leave to cross-appeal from interlocutory orders made by learned primary judge – whether learned primary judged erred in omitting to order consolidation of two actions – whether learned primary judge failed to order that the inclusion of the cross applicants as new plaintiffs in the first action have effect from 26 September 2001 – whether the cross applicants have suffered substantial injustice from the orders made

District Court of Queensland Act 1967 (Qld), s 118(3)
Limitation of Actions Act 1974 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 62(2), r 63(2), r 69(2), r 74, r 78, r 79

Lynch v Keddell (No 2) [1990] 1 QdR 10, followed

Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311; Appeal No 8204 of 1998, 16 October 1998, followed

COUNSEL:

M T Brady for the applicant/cross respondent
C C Wilson for the respondents/cross applicants

SOLICITORS:

Phillips Fox for the applicant/cross respondent
Quinn & Scattini for the respondents/cross applicants

MCMURDO P: The background

Maria Apap commenced an action in the District Court, Brisbane on 26 September 2001 seeking damages for breach of contract or negligence against her former solicitor, Robert Treanor. She claimed that, on 10 May 1996, in breach of a term of reasonable care and skill implied into his retainer and in breach…

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 Apap v Treanor

Details

AGLC: Apap v Treanor [2003] QCA 406
Case: [2003] QCA 406
Decision Date: 12 September 2003

CaseChat Overview and Summary

The case of Apap v Treanor involved two actions brought in the District Court by the respondents seeking damages for breach of contract or negligence. The first action was a subset of the second, and the applicant sought leave to appeal from interlocutory decisions made by the primary judge. The primary judge had refused to consolidate the actions but had allowed additional parties to be joined out of time. The applicant argued that he had been deprived of his right to pursue a defence based on the expiry of the limitation period. Additionally, the cross applicants sought leave to cross-appeal from the interlocutory orders, claiming that the primary judge had erred in not ordering consolidation of the actions and in not making an order that their inclusion as new plaintiffs in the first action would have effect from a specific date. They argued that they had suffered substantial injustice from the orders made.

The legal issues before the court were whether the applicant had been unjustly deprived of his right to appeal and whether the cross applicants had been deprived of a fair trial by the interlocutory orders. The court had to consider the effect of the interlocutory orders on the applicant's ability to raise a limitation period defence and whether the cross applicants had suffered substantial injustice from the orders made by the primary judge. The court also had to determine if the interlocutory orders interfered with the discretion of the court below and if the cross applicants had a right to cross-appeal from these orders.

The court found that the applicant had not been unjustly deprived of his right to appeal as the primary judge's decision to not consolidate the actions was within the court's discretion and did not affect the applicant's ability to raise a limitation period defence. The court also found that the cross applicants had not suffered substantial injustice from the interlocutory orders. The court held that the primary judge's decision not to consolidate the actions and to allow the inclusion of the cross applicants as new plaintiffs out of time was not an error of law and did not interfere with the discretion of the court below. The court also found that the cross applicants did not have a right to cross-appeal from these interlocutory orders.

The court refused the application for leave to appeal and the application for leave to cross-appeal, with both applicants ordered to pay costs.

Orders

Orders of the court

Application for leave to appeal refused with costs

Application for leave to cross appeal refused with costs

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:	Apap & Ors v Treanor & Ors [2003] QCA 406
PARTIES:	MARIA APAP and ANDREW GEORGE APAP (first plaintiffs/first respondents/first cross applicants) UGANA PLANTATIONS PTY LTD ACN 073 831 884 as trustee for the NICOTRA PLANTATION TRUST and NICOTRA PROPERTY TRUST (second plaintiff/second respondent/second cross applicant) v DALE ROBERT TREANOR (first defendant/applicant/cross respondent) CHARLES MUSCAT and TINA MUSCAT (second defendants)
FILE NO/S:	Appeal No 5643 of 2003 DC No 4713 of 2001 DC No 2155 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2003
JUDGES:	McMurdo P, Muir and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal refused with costs Application for leave to cross appeal refused with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – RIGHT OF APPEAL – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL - where respondents commenced two actions in the District Court seeking damages for breach of contract or negligence – where the first action is a sub-set of the second action – where learned primary judge refused to make an order consolidating the actions but made orders joining additional parties out of time - where applicant seeks leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld) – whether applicant has been unjustly deprived of his right to pursue a defence based on the expiry of the limitation period APPEAL AND NEW TRIAL – RIGHT OF APPEAL – INTEREFERENCE WITH DISCRETION OF COURT BELOW – INTERLOCUTORY ORDERS - where cross applicants seek leave to cross-appeal from interlocutory orders made by learned primary judge – whether learned primary judged erred in omitting to order consolidation of two actions – whether learned primary judge failed to order that the inclusion of the cross applicants as new plaintiffs in the first action have effect from 26 September 2001 – whether the cross applicants have suffered substantial injustice from the orders made District Court of Queensland Act 1967 (Qld), s 118(3) Limitation of Actions Act 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 62(2), r 63(2), r 69(2), r 74, r 78, r 79 Lynch v Keddell (No 2) [1990] 1 QdR 10, followed Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311; Appeal No 8204 of 1998, 16 October 1998, followed
COUNSEL:	M T Brady for the applicant/cross respondent C C Wilson for the respondents/cross applicants
SOLICITORS:	Phillips Fox for the applicant/cross respondent Quinn & Scattini for the respondents/cross applicants