Bradley & Steindl t/a Steindl Bradley & Assoc v Stanek

[1999] QCA 57

IN THE COURT OF APPEAL [1999] QCA 057

SUPREME COURT OF QUEENSLAND

Appeal No. 390 of 1998

Brisbane

[Bradley & Anor. v. Stanek & Anor.]

BETWEEN:

ANTHONY GEORGE BRADLEY and
LEIGH ANTHONY STEINDL trading as

STEINDL BRADLEY & ASSOCIATES

(Defendants) Appellants

AND:

GUNTER HORST STANEK and
LOIS MARGARET JOAN STANEK

(Plaintiffs)	Respondents
Pincus J.A. McPherson J.A. Mackenzie J.

Judgment delivered 18 December 1998 Further Order delivered 5 March 1999

Further Order of the Court

RESPONDENTS TO PAY APPELLANTS THE SUM OF $228,143.12.

CATCHWORDS:	DAMAGES - award of damages against solicitors - party subsequently bankrupt - costs below - whether further order sought by other party constitutes enforcement of a remedy within s. 58(3) Bankruptcy Act. Clyne v. Deputy Commissioner of Taxation (1984) 154 C.L.R. 589
Fraser v. Deputy Commissioner of Taxation (1996) 138 A.L.R. 689 Bankruptcy Act 1966 (Cth), s. 58(3)
Counsel:	Mr P D McMurdo Q.C. for the appellants. Mr A J H Morris Q.C. with him Mr P D Lane for the respondents.
Solicitors:	Deacons Graham & James for the appellants. Gadens for the respondents.
Hearing Date:	20 August 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 390 of 1998

Brisbane

Before Pincus J.A.
McPherson J.A.
Mackenzie J.

[Bradley & Anor. v. Stanek & Anor.]

BETWEEN:

ANTHONY GEORGE BRADLEY and
LEIGH ANTHONY STEINDL trading as

STEINDL BRADLEY & ASSOCIATES

(Defendants) Appellants

AND:

GUNTER HORST STANEK and
LOIS MARGARET JOAN STANEK

(Plaintiffs) Respondents

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 18 December 1998 Further Order delivered 5 March 1999

1. The Court delivered judgment in this action on 18 December 1998, when it was ordered

   that the amount for which judgment was given below in favour of the respondents, who were

   plaintiffs in the action, be reduced to $21,239.40. It was also ordered that the respondents pay the

   costs of the appeal and the parties were invited to make submissions in writing with respect to the

   costs below; such submissions were duly made. We have been informed that the respondents

   became bankrupt on 2 February 1999. In the meantime, on 12 January 1999, the appellants had

   filed a written submission asking for an order for payment by the respondents of a sum of

   $233,143.12, made up of the amount which they assert has to be refunded to them, as a
   consequence of their success on appeal, plus interest.

2. A question which has been raised is whether s. 58(3) of the Bankruptcy Act 1966 affects

   this Court's power to make further orders. The provision reads as follows:-

   "Except as provided by this Act, after a debtor has become a bankrupt, it is not
   competent for a creditor:

   (a)       to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

   (b)      except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding".

3. As to the meaning of the word "remedy" in s. 58(3), the High Court expressed doubt in

   Clyne v. Deputy Commissioner of Taxation (1984) 154 C.L.R. 589 at 595, on the question

   whether that word includes a remedy by way of action. In Fraser v. Deputy Commissioner of

   Taxation (1996) 138 A.L.R. 689 at 699, it was held that:

   ". . . the absolute bar imposed by s 58(3)(a) should be construed so as to apply only to the enforcement of remedies, including extra-curial remedies, as distinct from the institution of legal proceedings and their maintenance up to the point of recovery of judgment".

   It appears to us that the appellants continuing to press, as they have done, for orders said to be

   consequential upon our judgment of 18 December 1998 did not constitute the enforcement of a

   remedy within the meaning of s. 58(3)(a).

4. Since the bankruptcy on 2 February 1999, the appellants have neither commenced any

   relevant legal proceeding nor taken a fresh step in a legal proceeding, within s. 58(3)(b).

5. It appears to be common ground that the amount to which the appellants would be entitled, apart from the consideration discussed above, is $203,685.08 plus interest; further, the respondents do not contend that the interest claim is excessive. There is a dispute with respect to

   the costs of the trial which should, in our opinion, be resolved by fixing those costs at $5,000. The

   appropriate order, then, is that the respondents pay the appellants the sum of $228,143.12, being

   the amount to which the appellants are entitled under the judgment of this Court plus interest, less

   the sum of $5,000 costs which we have mentioned.