Heran v Joseph Douglas Realty Pty Ltd - [2024] QDC 104

DISTRICT COURT OF QUEENSLAND

CITATION:

Heran v Joseph Douglas Realty Pty Ltd [2024] QDC 104

PARTIES:

STEPHEN HERAN
(appellant)

v

JOSEPH DOUGLAS REALTY PTY LTD

(respondent)

FILE NO:

1213 of 2024.

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:
Judgment delivered ex tempore on 24 May 2024.

Reasons delivered 10 July 2024.

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2024.

JUDGE:

Byrne KC DCJ

ORDERS:

1.   The appeal be heard as an appeal in the strict sense.

2.    Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-17 is refused, save that leave is granted for exhibit ATD-17.

3.    Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-2 is granted.

4.    Leave to rely on the affidavit of Billy Trembath affirmed 23 May 2024 is refused.

5.    The appeal is allowed.

6.    The order of (the Magistrate) in the Southport Magistrates Court dated 10 April 2024 is varied such that order 3 is vacated with the other orders remaining extant.

7.    The respondent is to pay the appellant’s costs of the appeal.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL - where the respondent commenced proceedings in the Magistrates Court claiming monies owing under a contract – where the appellant, at a directions hearing, indicated an intention to apply for leave to adduce expert evidence at trial in accordance with an earlier consent order – where leave for the appellant to rely on expert evidence at trial was refused by the Magistrate at that hearing – where the appellant appeals that decision - where consideration must be given to the interests of justice - whether the Magistrate failed to give adequate reasons – whether the Magistrate failed to properly assess the relevant features in refusing leave.

LEGISLATION:

District Court of Queensland Act 1967 (Qld) s. 118.
Magistrates Courts Act 1921 (Qld) ss. 45(1), 47.
Uniform Civil Procedure Rules 1999 (Qld) rr. 32, 367, 765(2), 765(4), 766(1), 766(2), 785.

CASES:

AK v Western Australia (2008) 232 CLR 438.
Allesch v Maunz (2000) 203 CLR 172.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219.
Hamra v The Queen (2017) 260 CLR 479.
Mackellar Mining Equipment Pty Ltd v Thornton [2019] QCA 77.
Wainohu v New South Wales (2011) 243 CLR 181.

COUNSEL:
Mr. A.C. Harding for the appellant.

Mr. M.A. Goldsworthy for the respondent.

SOLICITORS:
Delaneys Lawyers for the appellant.

Bell Legal for the respondent.

On 20 April 2023 the respondent commenced proceedings in the Southport Magistrates Court claiming monies owing under a contract, namely $147,000 and interest. The claim was therefore for more than the minor civil dispute limit.
Central to the respondent’s case was a document it asserted had been both signed and amended by the appellant. So far as is relevant, the…

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.

Continue reading Heran v Joseph Douglas Realty Pty Ltd

Details

AGLC: Heran v Joseph Douglas Realty Pty Ltd [2024] QDC 104
Case: [2024] QDC 104
Decision Date: 10 July 2024

CaseChat Overview and Summary

In the matter of Heran v Joseph Douglas Realty Pty Ltd, the respondent commenced proceedings in the Magistrates Court to recover monies owing under a contract. The appellant sought leave to rely on expert evidence at trial, in accordance with a prior consent order. At a directions hearing, the appellant indicated their intention to apply for leave to adduce this expert evidence. However, the Magistrate refused the appellant's application, prompting the appeal to the Queensland Court of Appeal. The appellant argued that the Magistrate failed to give adequate reasons for the refusal and did not properly assess the relevant features when deciding to deny the application.

The appeal raised questions about the appropriate standard of review for the Magistrate's decision and whether the Magistrate adequately considered the interests of justice. The court examined the Magistrate's reasons for the decision, focusing on whether they were sufficient and whether the Magistrate had properly assessed the relevant factors in denying the application. The appeal hinged on whether the Magistrate's decision was legally sound and whether the interests of justice were properly considered.

The Court of Appeal found that the Magistrate's reasons were inadequate and that the decision to refuse leave to rely on the expert evidence was not properly grounded. The Court held that the Magistrate had not adequately considered the interests of justice, particularly in light of the prior consent order permitting the expert evidence. Consequently, the appeal was allowed, and the order of the Magistrate was varied. The Court granted leave to rely on some of the expert evidence while denying leave for other parts, and ordered the respondent to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal be heard as an appeal in the strict sense.

2. Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-17 is refused, save that leave is granted for exhibit ATD-17.

3. Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-2 is granted.

4. Leave to rely on the affidavit of Billy Trembath affirmed 23 May 2024 is refused.

5. The appeal is allowed.

6. The order of (the Magistrate) in the Southport Magistrates Court dated 10 April 2024 is varied such that order 3 is vacated with the other orders remaining extant.

7. The respondent is to pay the appellant’s costs of the appeal.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Heran v Joseph Douglas Realty Pty Ltd [2024] QDC 104
PARTIES:	STEPHEN HERAN (appellant) v JOSEPH DOUGLAS REALTY PTY LTD (respondent)
FILE NO:	1213 of 2024.
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Southport Magistrates Court
DELIVERED ON:	Judgment delivered ex tempore on 24 May 2024. Reasons delivered 10 July 2024.
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2024.
JUDGE:	Byrne KC DCJ
ORDERS:	1. The appeal be heard as an appeal in the strict sense. 2. Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-17 is refused, save that leave is granted for exhibit ATD-17. 3. Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-2 is granted. 4. Leave to rely on the affidavit of Billy Trembath affirmed 23 May 2024 is refused. 5. The appeal is allowed. 6. The order of (the Magistrate) in the Southport Magistrates Court dated 10 April 2024 is varied such that order 3 is vacated with the other orders remaining extant. 7. The respondent is to pay the appellant’s costs of the appeal.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL - where the respondent commenced proceedings in the Magistrates Court claiming monies owing under a contract – where the appellant, at a directions hearing, indicated an intention to apply for leave to adduce expert evidence at trial in accordance with an earlier consent order – where leave for the appellant to rely on expert evidence at trial was refused by the Magistrate at that hearing – where the appellant appeals that decision - where consideration must be given to the interests of justice - whether the Magistrate failed to give adequate reasons – whether the Magistrate failed to properly assess the relevant features in refusing leave.
LEGISLATION:	District Court of Queensland Act 1967 (Qld) s. 118. Magistrates Courts Act 1921 (Qld) ss. 45(1), 47. Uniform Civil Procedure Rules 1999 (Qld) rr. 32, 367, 765(2), 765(4), 766(1), 766(2), 785.
CASES:	AK v Western Australia (2008) 232 CLR 438. Allesch v Maunz (2000) 203 CLR 172. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219. Hamra v The Queen (2017) 260 CLR 479. Mackellar Mining Equipment Pty Ltd v Thornton [2019] QCA 77. Wainohu v New South Wales (2011) 243 CLR 181.
COUNSEL:	Mr. A.C. Harding for the appellant. Mr. M.A. Goldsworthy for the respondent.
SOLICITORS:	Delaneys Lawyers for the appellant. Bell Legal for the respondent.