Bingham v Merrin

[2006] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION:	Bingham v Merrin & Ors [2006] QCA 277
PARTIES:	JOHN EARNEST BINGHAM (applicant/first respondent) v ANNETTE ELIZABETH MERRIN (respondent/appellant) THOMAS WILLIAM MERRIN (respondent/appellant) WILLIAM ROYDS (respondent/second respondent)
FILE NO/S:	Appeal No 6370 of 2005 OAS 119 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	4 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	27 July 2006
JUDGES:	de Jersey CJ, Williams and Holmes JJA Judgment of the Court
ORDER:	Appeal dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – after the order of a retrial in the District Court it was agreed that the Cairns Port Authority pay the Merrins the sum of $44,727 – there was dispute between the appellants and the second respondent as to how that money was to be distributed – interest of $2971.66 had accrued on that amount – whether there is a proper basis for the appellants to challenge the order of the Supreme Court determining how the interest was distributed
COUNSEL:	The appellants appeared on their own behalf P Boustead for the first respondent The second respondent appeared on his own behalf
SOLICITORS:	The appellants appeared on their own behalf Crown Law for the first respondent The second respondent appeared on his own behalf

1. THE COURT:  This is the fourth occasion on which this Court has been asked to resolve a dispute as to the entitlement of various parties to the sum of $44,727 paid into court.

1. Consequent upon this Court in appeal 11540 of 1999 ordering on 15 May 2001 that there be a re-trial of the proceeding in the District Court between the Merrins and Cairns Port Authority, it was agreed that the quantum of the party and party costs the Cairns Port Authority should pay to the Merrins was the sum of $44,727.  Because a dispute arose as to the disposition of that amount as between Royds, who had at various times acted for the Merrins in the proceeding, and the Merrins, Jones J ordered on 15 November 2001 that that sum should be paid into court.

1. Thereafter this Court, on hearing either an appeal or an application, made orders on 24 July 2002, 9 August 2002, and 2 May 2003.  Those orders provided for the disposition of the sum of $44,727 paid into court. 

1. Ultimately Bingham, the Registrar of the Supreme Court at Cairns, paid out the total sum of $44,727 in accordance with those orders of the court. 

1. In addition to that sum, by the time payments out were made, interest had accrued totalling $2,791.66.  The Court of Appeal had not formally indicated how that interest was to be dispersed. 

1. The Merrins then brought an application before Dutney J contesting the dispersement of interest and also raising an issue as to whether or not Royds was entitled to payment in accordance with the orders of this Court, because Royds had not been "discharged" by the Merrins as their solicitor.  That was a matter referred to by the Court of Appeal in paragraph [8] of its reasons of 2 May 2003.

1. The Merrins admit that Royds has not been their solicitor for some time; they say that his retainer ceased at the end of the first trial.  Royds admits that, subject to claiming some retainer with respect to the lodging of the Notice of Appeal.  But the dispute seems to be purely academic.  It is clear that Royds has not been retained as solicitor for the Merrins since at least early 2001 and looked at objectively he has been "discharged" from acting for the Merrins in the ongoing litigation if that be a condition precedent to his entitlement to payment pursuant to the orders of the Court of Appeal.

1. When the Registrar paid out Royds pursuant to the orders of the Court of Appeal he also included in that sum the total amount for interest.  The Merrins complain that that was unfair and that they had an entitlement to the interest.

1. Dutney J resolved the matter applying broad principles of justice.  The Merrins obtained approximately 38 per cent of the total amount paid into court and in consequence they were entitled to roughly 38 per cent of the interest.  In consequence the effect of the order of Dutney J of 22 July 2005 was that Royds pay the Merrins $1,060, being 38 per cent of the interest.

1. It is from that resolution of the dispute by Dutney J that the Merrins have appealed to this Court.  There is clearly no substance in the grounds of appeal stated in the Notice of Appeal.  But in any event, given the amount involved, justice has been done as between the parties and there is no proper basis for challenging the order of

   
   

   Dutney J.

1. The appeal should be dismissed with costs.