Chidgey v. Wellner & Anor (No 2)

[2007] QDC 343

DISTRICT COURT OF QUEENSLAND

CITATION:

Chidgey v Wellner & Anor (No 2) [2007] QDC 343

PARTIES:

DAVID STANLEY CHIDGEY

Appellant

V

UTZ WELLNER

Respondent

FILE NO/S:

D2481 of 2006; M578 of 2005

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Wynnum

DELIVERED ON:

21 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2007

JUDGE:

McGill DCJ

ORDER:

Appeal allowed; set aside the judgment given on 28 July 2006;  order in lieu on the application of the respondent plaintiff that the defence and counterclaim filed 16 March 2006 be struck out but with liberty to replead; direct that any amended defence and counterclaim filed on behalf of the appellant defendant be filed by 18 January 2008;  application of the respondent plaintiff filed 10 July 2006 otherwise dismissed, with no order for costs on that application.  The magistrate’s order striking out the application of the appellant defendant filed 28 July 2006 stands. 

CATCHWORDS:

LEGAL PRACTITIONERS – Solicitor and Client – costs – dispute as to fees – bill not assessed – client alleges negligence – issues to be litigated in action on bill.

APPEAL AND NEW TRIAL – Appeal – Powers of Court – grounds of appeal – court not confined by.

Queensland Law Society Act 1952 ss 48J, 48Q.

UCPR r 766(6)(b)

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 – applied.
Livesey v NSW Bar Association (1983) 151 CLR 288 – cited.
MAM Mortgages Ltd v Cameron Bros. [2002] QCA 330 – cited.

COUNSEL:

The appellant appeared in person

The respondent appeared in person

SOLICITORS:

The appellant was not represented

Wellners Lawyers for the respondent

1. This is an appeal from an order made in the magistrates court on 28 July 2006.  The respondent had brought an action against the appellant claiming legal fees and outlays by a claim and statement of claim filed in the magistrates court on 22 December 2005.  The defendant filed a notice of intention to defend, defence and counterclaim in that court on 16 March 2006.  On 10 July 2006 the respondent filed an application seeking the following orders:

“1.That the court strike out the defendant’s defence for failing to comply with rr 149, 155, 157, and 171 of the UCPR;

2.Alternatively, that the court strike out the defendant’s defence for failing to disclose a reasonable defence;

3.That the court strike out the defendant’s counterclaim for failing to comply with rr 149, 155, 157, and 171 of the UCPR;

4.That judgment be entered in favour of the plaintiff pursuant to r 292 of the Uniform Civil Procedure Rules;

5.That the defendant pay interest pursuant to the provisions of the Supreme Court Act; and

6.That the defendant pay the plaintiff’s costs of and incidental to this application to be assessed.”

1. That application stated on its face that it would be heard by the court at Wynnum on 28 July 2006 at 8.45 am.  It was supported by an affidavit by Mr Wellner.  Both documents were served on the appellant.  He attended the court…