Barmettler & Anor v. Greer & Timms - [2007] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

Barmettler & Anor v Greer & Timms [2007] QCA 170

PARTIES:

RUDY BARMETTLER and ANGELA BARMETTLER
(plaintiffs/appellants)
v
GREER & TIMMS
(defendant/respondent)

FILE NO/S:

Appeal No 10043 of 2006
DC No 149 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2007

JUDGES:

McMurdo P, Williams JA and Jerrard JA
Judgment of the Court

ORDER:

1. Appeal dismissed
2. Appellants pay the respondent’s costs of the appeal assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE NEW TRIAL WOULD LEAD TO SAME RESULT – PARTICULAR CASES – where appellants contend that the respondent solicitors breached their duty of care in acting for the appellants in the purchase of a property – where appellants entered into possession of the property on 13 August 1992 but contend settlement occurred on 29 August 1992 – where appellants claim that between these dates they told their solicitors to "stop" the contract and that the failure of the respondent to do so caused the appellants damage – where there was an absence of evidence supporting the appellants' contentions – where jury was not asked directly to determine the actual date of settlement – where damages claimed were not properly established – where the appellants' case was under prepared and hopeless – whether the settlement date was 13 August 1992 – whether the respondent solicitors were negligent – whether there was a miscarriage of justice

APPEAL AND NEW TRIAL – NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE NEW TRIAL WOULD LEAD TO SAME RESULT – PARTICULAR CASES – where the trial judge treated the appellants unfairly – where judge held the female appellant in contempt of court – where judge did not identify the part of s 129 District Court Act 1967 (Qld) under which appellant had been taken into custody – where judge did not specify the conduct forming the basis of the contempt charge – where judge failed to give the appellant an opportunity to answer the contempt charge – where appeal against the judge's decision to hold the appellant in contempt can only occur by application for an order of certiorari under the Judicial Review Act 1991 (Qld) – where judge threatened the male appellant with perjury and contempt of court – whether judge's conduct fell below the expected standard – whether re-trial should be ordered – whether conduct of trial occasioned a miscarriage of justice

District Court Act 1967 (Qld), s 129
Judicial Review Act 1991 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 472

Bradshaw v A-G[1998] QCA 42; Appeal No 873 of 1998, 17 March 1998, applied
Bradshaw v Beenland [1998] QCA 224; Appeal No 873 of 1998,…

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 Barmettler & Anor v. Greer & Timms

Details

AGLC: Barmettler v Greer and Timms [2007] QCA 170
Case: [2007] QCA 170
Decision Date: 25 May 2007

CaseChat Overview and Summary

The appeal in Barmettler & Anor v. Greer & Timms concerns a dispute between the appellants, Barmettler and another, and the respondents, Greer and Timms, who were their solicitors during the purchase of a property. The appellants alleged that the respondents breached their duty of care by failing to halt the contract as directed, resulting in damages. The respondents argued that the appellants' claims were unfounded and poorly substantiated, leading to a verdict in their favor. The appellants sought a new trial on various grounds, including alleged procedural errors and misconduct by the trial judge.

The central legal issues before the court were whether the settlement date was indeed 13 August 1992, whether the respondents were negligent in their representation, and whether the trial judge's conduct constituted a miscarriage of justice. The appellants claimed that the judge's handling of their case, including holding one of them in contempt without proper justification, warranted a new trial. They also argued that the trial's outcome would likely be the same due to the lack of evidence supporting their claims.

The court found that the appellants' case was under-prepared and lacked substantial evidence to support their allegations of negligence and the claimed date of settlement. The court determined that the trial judge's conduct, while potentially harsh, did not rise to the level of a miscarriage of justice that would necessitate a new trial. Furthermore, the court held that the settlement date was 13 August 1992, and no negligence on the part of the respondents was established. Given these findings, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. Appellants pay the respondent’s costs of the appeal assessed on the standard basis

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:	Barmettler & Anor v Greer & Timms [2007] QCA 170
PARTIES:	RUDY BARMETTLER and ANGELA BARMETTLER (plaintiffs/appellants) v GREER & TIMMS (defendant/respondent)
FILE NO/S:	Appeal No 10043 of 2006 DC No 149 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	25 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	26 April 2007
JUDGES:	McMurdo P, Williams JA and Jerrard JA Judgment of the Court
ORDER:	1. Appeal dismissed 2. Appellants pay the respondent’s costs of the appeal assessed on the standard basis
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE NEW TRIAL WOULD LEAD TO SAME RESULT – PARTICULAR CASES – where appellants contend that the respondent solicitors breached their duty of care in acting for the appellants in the purchase of a property – where appellants entered into possession of the property on 13 August 1992 but contend settlement occurred on 29 August 1992 – where appellants claim that between these dates they told their solicitors to "stop" the contract and that the failure of the respondent to do so caused the appellants damage – where there was an absence of evidence supporting the appellants' contentions – where jury was not asked directly to determine the actual date of settlement – where damages claimed were not properly established – where the appellants' case was under prepared and hopeless – whether the settlement date was 13 August 1992 – whether the respondent solicitors were negligent – whether there was a miscarriage of justice APPEAL AND NEW TRIAL – NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE NEW TRIAL WOULD LEAD TO SAME RESULT – PARTICULAR CASES – where the trial judge treated the appellants unfairly – where judge held the female appellant in contempt of court – where judge did not identify the part of s 129 District Court Act 1967 (Qld) under which appellant had been taken into custody – where judge did not specify the conduct forming the basis of the contempt charge – where judge failed to give the appellant an opportunity to answer the contempt charge – where appeal against the judge's decision to hold the appellant in contempt can only occur by application for an order of certiorari under the Judicial Review Act 1991 (Qld) – where judge threatened the male appellant with perjury and contempt of court – whether judge's conduct fell below the expected standard – whether re-trial should be ordered – whether conduct of trial occasioned a miscarriage of justice District Court Act 1967 (Qld), s 129 Judicial Review Act 1991 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 472 Bradshaw v A-G[1998] QCA 42; Appeal No 873 of 1998, 17 March 1998, applied Bradshaw v Beenland [1998] QCA 224; Appeal No 873 of 1998,…