DS Queen Street Mall Pty Ltd v Texrose Pty Ltd

[2006] QCA 429

COURT OF APPEAL

WILLIAMS JA
JERRARD JA
HOLMES JA

Appeal No 5252 of 2005

DS QUEEN STREET MALL PTY LTD
(ACN 070 411 022)  Applicant

and

TEXROSE PTY LTD
(ACN 053 308 044)  First Respondent

and

NEVILLE GEORGE PEARD  Second Respondent

and

ISPT PTY LTD (ACN 064 041 283)          Third Respondent

BRISBANE

..DATE 31/10/2006

JUDGMENT

MR S S W COUPER QC (instructed by Raj Lawyers) for the applicant

MR G W DIEHM, with him MR R G FRYBERG (instructed by McMahons National Lawyers) for the respondents Texrose and Peard

WILLIAMS JA:  This is an application for leave to appeal from a decision of a District Court Judge effectively dismissing on appeal proceedings which had been commenced in the Magistrates Court. 

In the Magistrates Court, the present applicant sought to recover approximately $19,000 said to be arrears of rent.  All of the principal amount in issue has now been paid one way or another to the applicant.  If, as a result of an appeal to this Court, the proceedings in the Magistrates Court were re-opened, the only issues left to be determined would be in relation to some costs and some interest. 

As the case was pleaded in the Magistrates Court a defence based upon the decision of this Court in Ashmore Developments Pty Ltd v. Eaton [1992] 2 Queensland Reports 1 was available.  The Magistrate, on a defence application for summary judgment, declined to make such an order.  The defendant appealed to the District Court and the District Court Judge applied Ashmore and dismissed the proceeding.

When the matter was in the District Court, the present applicant raised peripherally the question as to whether or not the proceeding in the Magistrates Court was validly constituted on the basis that there was an assignment and all relevant and necessary parties were before the Court.  That point was not determined by the District Court Judge.  The applicant now seeks leave to appeal; firstly, to have this Court revisit Ashmore and, secondly and alternatively, to overturn the decision of the District Court on the basis that there was an effective assignment and all necessary parties were before the Court.

In my view, this is not the appropriate case to revisit the decision in Ashmore, which has now stood for many years.  It is obvious, as clause 6.6(d) in the present matter indicates, easy to apply Ashmore in situations such as this.  There is no matter of legal principle raised with respect to who are necessary parties to an action seeking to enforce an assignment and thus there is no matter of legal principle involved in the second limb of the applicant's submission which would warrant the grant of leave.  The law in that regard is clear.

In the circumstances, this is not an appropriate case in which to grant leave to appeal, so the application is refused with costs.

JERRARD JA:  I agree.

HOLMES JA:  I agree.

WILLIAMS JA:  That will be the order of the Court.

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