Kadoe Pty Ltd v Thomsons Laywers

DISTRICT COURT OF QUEENSLAND

CITATION:

Kadoe Pty Ltd & Ors v Thomsons Laywers [2015] QDC 56

PARTIES:

KADOE PTY LTD (ACN 135 970 504) TRADING AS KADOE COMMERCIAL COATINGS

(first appellant)

and

MRS CAROLYN THOMSON

(second appellant)

and

MR WAYNE THOMSON

(third appellant)

v

THOMSONS LAWYERS (A FIRM)

(respondent)

FILE NO/S:

149 of 2014

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2015

JUDGE:

Reid DCJ

ORDER:

1. Pursuant to r 751(b) of UCPR, the appellants have leave to amend their Notice of Appeal in the form exhibited to the affidavit of M K Russell filed 17 December 2014.

2. Pursuant to r 750(1) of UCPR, the first appellant be removed as a party to this appeal.

3. Pursuant to r 78 of UCPR, this appeal be consolidated with District Court of Queensland appeal proceeding number 4962 of 2014.

4. Pursuant to r 761(2) of UCPR, the enforcement warrant dated 14 October 2014 issued by the Magistrates Court in proceeding number 1049 of 2014 and enforcement of the order made by the Magistrates Court on 22 August 2014 in that proceeding be stayed pending the outcome of this appeal.

5.   The respondent’s application filed 13 November 2014 be dismissed.

6.   Costs be reserved.

CATCHWORDS:

Application to amend notice of appeal – application to remove party to appeal – application to stay proceedings and enforcement warrant pending outcome of appeal – security for costs – whether magistrate erred in ordering that costs be assessed – whether magistrate then erred in entering judgment – procedure on assessment – obligation to ensure court does not fall into error – where the court’s attention was not drawn to significant content of an affidavit – where appellants were initially self-represented

CASES:

Paroz v Clifford Gouldson Lawyers [2012] QDC 151

Elphick v MMI General Insurance Limited & Anor [2002] QCA 347

Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 78, 439, 738, 742, 743, 743G, 743H, 750, 751, 761, 785

COUNSEL:

P. Somers for the appellant

R. Dickson for the respondent

SOLICITORS:

McBride legal for the appellant

Thomson Geer for the respondent

Introduction

1. Before the court are three interlocutory applications brought by both the appellants and the respondent in appeal proceedings. For clarity, I shall refer to the parties as appellants and respondent, rather than applicant and respondent. There are two sets of appeal proceedings arising out of a Magistrates Court proceeding brought by the respondent against the appellants relating to a claim for payment of their costs associated with acting for the first appellant in legal proceedings.

1. What I shall describe as the first appeal being that in proceeding number 1049 of 2014 is an appeal of an order made on 22 August 2014 by a magistrate. The second is a related appeal in the District Court of Queensland, appeal number 4962 of 2014, in which the appellants seek leave to appeal…