EPF Concreting P/L v Hall (Appeal) - [2012] QDC 349

DISTRICT COURT OF QUEENSLAND

CITATION:

EPF Concreting P/L v Hall [2012] QDC 349

PARTIES:

EPF CONCRETING PTY LTD
(applicant/appellant)

v

LUKE JAY HALL
(respondent/respondent)

FILE NO:

BD 1155/2012

JURISDICTION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

HEARING DATES:

27 August 2012, 25 September 2012 and 27 November 2012

JUDGE:

Dorney QC, DCJ

ORDERS:

1.   That Mr Reid be granted special leave to appear as the applicant/appellant’s representative.

2.   That the orders made and filed in the Magistrates Court at Southport on 22 October 2012 take effect as of 15 February 2012.

3.   That the purported Notice of Appeal filed 26 March 2012 be treated as an application for an extension of time to appeal pursuant to r 748 of the Uniform Civil Procedure Rules 1999 (Qld).

4.   That the applicant/appellant have leave to extend the time to appeal to 26 March 2012.

5.   That the application for extension of time be itself treated as the Notice of Appeal.

6.   That the Notice of Appeal be amended to add an appeal against the decision of Acting Magistrate Morrow made 19 September 2011.

7.   That the Notice of Appeal filed 26 March 2012, and the hearing of it on 27 August 2012, 25 September 2012 and 27 November 2012, are validly applicable to the judgment and orders made by the Magistrates Court taking effect as of 15 February 2012.

8.   That, in lieu of the costs order made in the Magistrates Court on 15 February 2012, it is ordered that the plaintiff pay the defendant’s costs of the original proceeding, including any reserved costs, to be assessed by a costs assessor who is to be the Registrar of the Magistrates Court at Southport.

9.   That there be added to the orders made in the Magistrates Court, to be effective on and from 15 February 2012, an order that the payment claim dated 19 May 2010 be set aside.

10. That the appellant have leave to appeal despite the orders of the Magistrates Court made on 5 November 2010 not having been filed.

11. That the appellant’s appeal against the setting aside of the judgment (entered in the appellant’s favour on 5 October 2010 in the Magistrates Court) on 5 November 2010 be dismissed.

12. That the appellant’s appeal (against the judgment given and the orders made in the Magistrates Court on 15 February 2012 that the appellant/plaintiff’s claim be dismissed) be dismissed.

13. That the applicant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.

CATCHWORDS:

Appeal –leave to extend time – orders not made and/or not filed (though some rectified) - leave to appeal – whether judgment against appellant sustainable

Building and Construction Industry Payments Act 2004 (Qld)
Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld) s 105
District Court of Queensland Act 1967 (Qld) s 52(1)
Magistrates Courts Act 1921 (Qld) ss 45(2)(a), 45(5), 47, 60
Queensland Civil and Administrative…

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: [2012] QDC 349
Decision Date: 27 November 2012

CaseChat Overview and Summary

EPF Concreting P/L appealed against the decision of the Magistrates Court of Queensland, which dismissed their claim against Hall. The appeal involved complex procedural issues, including the timeliness of the appeal and the rectification of errors in the original court documents. The primary dispute was whether the appellant had the right to appeal certain judgments and orders, and if those judgments were sustainable. The Court of Appeal had to determine whether the appellant was granted appropriate leave to extend the time for appeal and whether the appeal should proceed despite procedural missteps.

The central legal issues the court considered were whether the appellant was entitled to special leave to appear, whether the orders made by the Magistrates Court were valid, and if the appeal was filed within the allowable time frame. Additionally, the court had to examine whether the procedural errors rendered the appeal unsustainable. The court also needed to address whether the appellant's appeal against the setting aside of a previous judgment should proceed and if the appeal against the judgment dismissing the claim was valid.

The Court of Appeal ruled that the appellant had the right to special leave to appear and granted Mr Reid leave to represent the appellant. The court found that the orders made by the Magistrates Court were valid, despite the appellant's failure to file some of the orders. The court also ruled that the Notice of Appeal filed on 26 March 2012 should be treated as an application for an extension of time to appeal. Despite these procedural issues, the court granted the appellant leave to extend the time to appeal. However, the court dismissed the appeal on the merits, holding that the judgment against the appellant was sustainable and that the appeal was without merit. The court further ordered that the appellant pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. That Mr Reid be granted special leave to appear as the applicant/appellant’s representative.

2. That the orders made and filed in the Magistrates Court at Southport on 22 October 2012 take effect as of 15 February 2012.

3. That the purported Notice of Appeal filed 26 March 2012 be treated as an application for an extension of time to appeal pursuant to r 748 of the Uniform Civil Procedure Rules 1999 (Qld).

4. That the applicant/appellant have leave to extend the time to appeal to 26 March 2012.

5. That the application for extension of time be itself treated as the Notice of Appeal.

6. That the Notice of Appeal be amended to add an appeal against the decision of Acting Magistrate Morrow made 19 September 2011.

7. That the Notice of Appeal filed 26 March 2012, and the hearing of it on 27 August 2012, 25 September 2012 and 27 November 2012, are validly applicable to the judgment and orders made by the Magistrates Court taking effect as of 15 February 2012.

8. That, in lieu of the costs order made in the Magistrates Court on 15 February 2012, it is ordered that the plaintiff pay the defendant’s costs of the original proceeding, including any reserved costs, to be assessed by a costs assessor who is to be the Registrar of the Magistrates Court at Southport.

9. That there be added to the orders made in the Magistrates Court, to be effective on and from 15 February 2012, an order that the payment claim dated 19 May 2010 be set aside.

10. That the appellant have leave to appeal despite the orders of the Magistrates Court made on 5 November 2010 not having been filed.

11. That the appellant’s appeal against the setting aside of the judgment (entered in the appellant’s favour on 5 October 2010 in the Magistrates Court) on 5 November 2010 be dismissed.

12. That the appellant’s appeal (against the judgment given and the orders made in the Magistrates Court on 15 February 2012 that the appellant/plaintiff’s claim be dismissed) be dismissed.

13. That the applicant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.

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:	EPF Concreting P/L v Hall [2012] QDC 349
PARTIES:	EPF CONCRETING PTY LTD (applicant/appellant) v LUKE JAY HALL (respondent/respondent)
FILE NO:	BD 1155/2012
JURISDICTION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Southport
DELIVERED ON:	27 November 2012
DELIVERED AT:	Brisbane
HEARING DATES:	27 August 2012, 25 September 2012 and 27 November 2012
JUDGE:	Dorney QC, DCJ
ORDERS:	1. That Mr Reid be granted special leave to appear as the applicant/appellant’s representative. 2. That the orders made and filed in the Magistrates Court at Southport on 22 October 2012 take effect as of 15 February 2012. 3. *That the purported Notice of Appeal filed 26 March 2012 be treated as an application for an extension of time to appeal pursuant to r 748 of the Uniform Civil Procedure Rules* 1999 (Qld). 4. That the applicant/appellant have leave to extend the time to appeal to 26 March 2012. 5. That the application for extension of time be itself treated as the Notice of Appeal. 6. That the Notice of Appeal be amended to add an appeal against the decision of Acting Magistrate Morrow made 19 September 2011. 7. That the Notice of Appeal filed 26 March 2012, and the hearing of it on 27 August 2012, 25 September 2012 and 27 November 2012, are validly applicable to the judgment and orders made by the Magistrates Court taking effect as of 15 February 2012. 8. That, in lieu of the costs order made in the Magistrates Court on 15 February 2012, it is ordered that the plaintiff pay the defendant’s costs of the original proceeding, including any reserved costs, to be assessed by a costs assessor who is to be the Registrar of the Magistrates Court at Southport. 9. That there be added to the orders made in the Magistrates Court, to be effective on and from 15 February 2012, an order that the payment claim dated 19 May 2010 be set aside. 10. That the appellant have leave to appeal despite the orders of the Magistrates Court made on 5 November 2010 not having been filed. 11. That the appellant’s appeal against the setting aside of the judgment (entered in the appellant’s favour on 5 October 2010 in the Magistrates Court) on 5 November 2010 be dismissed. 12. That the appellant’s appeal (against the judgment given and the orders made in the Magistrates Court on 15 February 2012 that the appellant/plaintiff’s claim be dismissed) be dismissed. 13. That the applicant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.**
CATCHWORDS:	Appeal –leave to extend time – orders not made and/or not filed (though some rectified) - leave to appeal – whether judgment against appellant sustainable Building and Construction Industry Payments Act 2004 (Qld) Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld) s 105 District Court of Queensland Act 1967 (Qld) s 52(1) Magistrates Courts Act 1921 (Qld) ss 45(2)(a), 45(5), 47, 60 Queensland Civil and Administrative…