Chung v Lamberts (Australia) Pty Ltd - [2001] QDC 359

DISTRICT COURT OF QUEENSLAND

CITATION: Chung & Ors v. Lamberts (Australia) Pty Ltd & Ors [2001] QDC 359

PARTIES:
JOHN CHUNG and MEI PACK CHUNG and JENNA CHUNG

Plaintiffs

LAMBERTS (AUSTRALIA) PTY LTD
ACN 010700 277 Trading under the style
or firm name of MacALLISTERS

First Defendant

JOHN RICHARDSON

Second Defendant

SHAMOOR PTY LTD ACN 070 157 667

Third Defendant

ROGER ANTHONY BERTHER

Fourth Defendant

FILE NO/S: D616 / 1998

DIVISION: District Court

PROCEEDING: Application

ORIGINATING COURT:
District Court Southport

DELIVERED ON: 10 August 2001

DELIVERED AT: Southport

HEARING DATE: 22 June 2001

JUDGE: Alan Wilson SC, DCJ

ORDER:
1.          That the third and fourth defendants have leave to join Parker Simmonds (a firm) as a third party to these proceedings; and

2.          That the plaintiffs’ costs of and incidental to this application, including costs of attending the hearing on 22 June 2001, be their costs in the cause; and

3.          That the first and second defendants’ costs of and incidental to this application, including costs of attending the hearing on 22 June 2001, be their costs in the cause; and

4.          The costs of the applicant third and fourth defendants be reserved to the trial Judge hearing the third party proceedings, or further order.

CATCHWORDS: Uniform Civil Procedure Rules, Rule 192– transition to new rules – addition of a third party – leave to add new party when that party is a solicitor on the record in the matter.

COUNSEL:
Mr K. Howe of counsel for the respondent plaintiffs.

Mr P. Sacre of counsel for the first and second defendants.

Mr M. Liddy of counsel for the applicant second and third defendants.

IN THE DISTRICT COURT OF QUEENSLAND

SOUTHPORT No: D616 of 1998

JOHN CHUNG and MEI PACK CHUNG and JENNA CHUNG

Plaintiffs

LAMBERTS (AUSTRALIA) PTY LTD
ACN 010700 277 Trading under the style
or firm name of MacALLISTERS

First Defendant

JOHN RICHARDSON

Second Defendant

SHAMOOR PTY LTD ACN 070 157 667

Third Defendant

ROGER ANTHONY BERTHER

Fourth Defendant

REASONS FOR JUDGMENT – ALAN WILSON SC, DCJ

(Delivered the 10^th day of August 2001)

The third and fourth defendants seek leave, under UCPR r192, to issue a third party notice claiming indemnity and/or contribution under s6 of the Law Reform Act 1995, against the firm of solicitors which has acted for the plaintiffs throughout the action. Leave is necessary under r194 because the third and fourth defendants did not file the third party notice within 28 days after the time for their defence.

The plaintiffs’ claim in the action arises from a “vendor finance” agreement they entered into when they sold a fish and chip shop. The purchaser, it is said, was unable to obtain all the necessary finance and, under a variation of the original contract of sale, payment of the shortfall was postponed in exchange for security, from the purchaser, over a commercial property. The purchaser defaulted in payment and, it is alleged, the security turned out to be of no value. The first and second…

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.

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Details

Case: [2001] QDC 359
Decision Date: 10 August 2001

CaseChat Overview and Summary

The case of Chung v Lamberts (Australia) Pty Ltd involves a dispute in the Supreme Court of Queensland. The plaintiffs, Chung, sought to add Parker Simmonds, a law firm, as a third party to the proceedings. The third and fourth defendants opposed this addition, arguing that it was not permissible under the Uniform Civil Procedure Rules, specifically Rule 192. The issue before the court was whether the plaintiffs were entitled to add Parker Simmonds as a third party when the transition to the new rules had already occurred, and if the addition was permissible when the new party was a solicitor on the record in the matter.

The court considered the provisions of Rule 192 and its applicability to the transition to the new rules. The plaintiffs argued that the new rules should be interpreted in a manner that allowed for the addition of a third party, even when the transition to the new rules had already occurred. The court acknowledged that Rule 192 did not explicitly prohibit the addition of a third party in such circumstances. The court further considered the purpose of Rule 192, which was to ensure that the addition of a third party would not cause an injustice to the other parties. The court found that the addition of Parker Simmonds as a third party would not cause an injustice to the other parties, and therefore, the plaintiffs were entitled to add Parker Simmonds as a third party.

The court granted the plaintiffs leave to add Parker Simmonds as a third party to the proceedings. The court also ordered that the costs of the application be borne by the respective parties, and that the costs of the third and fourth defendants be reserved to the trial Judge hearing the third party proceedings, or further order. This decision clarifies the scope of Rule 192 and provides guidance on the addition of third parties in proceedings under the new rules.

Orders

Orders of the court

1. That the third and fourth defendants have leave to join Parker Simmonds (a firm) as a third party to these proceedings; and

2. That the plaintiffs’ costs of and incidental to this application, including costs of attending the hearing on 22 June 2001, be their costs in the cause; and

3. That the first and second defendants’ costs of and incidental to this application, including costs of attending the hearing on 22 June 2001, be their costs in the cause; and

4. The costs of the applicant third and fourth defendants be reserved to the trial Judge hearing the third party proceedings, or further order.

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:	Chung & Ors v. Lamberts (Australia) Pty Ltd & Ors [2001] QDC 359
PARTIES:	JOHN CHUNG and MEI PACK CHUNG and JENNA CHUNG Plaintiffs LAMBERTS (AUSTRALIA) PTY LTD ACN 010700 277 Trading under the style or firm name of MacALLISTERS First Defendant JOHN RICHARDSON Second Defendant SHAMOOR PTY LTD ACN 070 157 667 Third Defendant ROGER ANTHONY BERTHER Fourth Defendant
FILE NO/S:	D616 / 1998
DIVISION:	District Court
PROCEEDING:	Application
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	10 August 2001
DELIVERED AT:	Southport
HEARING DATE:	22 June 2001
JUDGE:	Alan Wilson SC, DCJ
ORDER:	1. That the third and fourth defendants have leave to join Parker Simmonds (a firm) as a third party to these proceedings; and 2. That the plaintiffs’ costs of and incidental to this application, including costs of attending the hearing on 22 June 2001, be their costs in the cause; and 3. That the first and second defendants’ costs of and incidental to this application, including costs of attending the hearing on 22 June 2001, be their costs in the cause; and 4. The costs of the applicant third and fourth defendants be reserved to the trial Judge hearing the third party proceedings, or further order.
CATCHWORDS:	Uniform Civil Procedure Rules, Rule 192– transition to new rules – addition of a third party – leave to add new party when that party is a solicitor on the record in the matter.
COUNSEL:	Mr K. Howe of counsel for the respondent plaintiffs. Mr P. Sacre of counsel for the first and second defendants. Mr M. Liddy of counsel for the applicant second and third defendants.