Duhs v Pettett

[2009] QCA 347

SUPREME COURT OF QUEENSLAND

CITATION:

Duhs v Pettett [2009] QCA 347

PARTIES:

TREVOR PETTETT
(first defendant/appellant)
v
WILFRED HENRY DUHS
(plaintiff/respondent)
KEA-WATT & ASSOCIATES PTY LTD
ACN 100 005 490
(second defendant/not a party to the appeal)
RATHDOWNEY DEVELOPMENTS PTY LTD
ACN 115 908 137
(third defendant/not a party to the appeal)

FILE NO/S:

Appeal No 5885 of 2009
SC No 12147 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2009

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal and cross-appeal dismissed.

2.   Appellant to pay the respondent’s costs of the appeal and the cross-appeal, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PAYMENT INTO AND OUT OF COURT – where the respondent claimed restitution for an amount he paid to the appellant in instalments – where the trial judge declined to grant summary judgment, but required the appellant to provide security for part of the respondent’s claim as a condition to continuing the proceeding – where the appellant argued that this would effectively prevent him from litigating arguable defences to the claim, as he had no capacity to make the payment – where the respondent cross-appealed against the trial judge’s refusal to grant summary judgment – whether the trial judge erred by failing to take into account the financial difficulties of the appellant – whether the order that the appellant pay money into court amounted to granting summary judgment or ‘stifling’ the litigation

Uniform Civil Procedure Rules 1999 (Qld), r 298, r 765(1)

Brypat Pty Ltd v Endless View Holdings Pty Ltd [2005] QSC 171, cited
Commonwealth Development Bank of Australia Limited v Kerr & Ors [2001] QSC 234, cited
DMS Shipping & Trading Co Limited v Lionheart Asia Limited [1996] 2 Qd R 20; [1995] QCA 448, cited
Duhs v Pettett & Ors [2009] QSC 100, affirmed
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, cited

COUNSEL:

R Almond QC, with D Gration, for the appellant
D J Cooper SC for the respondent

SOLICITORS:

Lillas & Loel Lawyers for the appellant
Ferguson Cannon Lawyers for the respondent

1. KEANE JA:I have had the advantage of reading a draft of the reasons for judgment prepared by Fraser JA.  I agree with those reasons and with the orders proposed by his Honour.

1. HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.

1. FRASER JA: The respondent/plaintiff applied in the Trial Division for summary judgment against the appellant/first defendant for $2,700,000 plus interest.  The appellant/first defendant cross-applied for orders (1) that the respondent's statement of claim be struck-out or that the respondent be given leave to re-plead that statement of claim, and (2) that an order…