Kern v Evans

DISTRICT COURT OF QUEENSLAND

CITATION:

Kern v Evans & Ors [2005] QDC 121

PARTIES:

JAMES ERNEST KERN

Plaintiff

ROSS ALEXANDER EVANS

First Defendant

MELANIE JANE EVANS

Second Defendant

PAUL DESMOND SWEENEY

Third Defendant

FILE NO/S:

D292/1999

DIVISION:

District Court

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

6 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

Townsville 1^st and 2^nd November 2004; Southport 11 February 2005

JUDGE:

Dick DCJ

ORDER:

Judgment for the Plaintiff in the sum of $42,896.00

First Defendant to pay Plaintiff’s costs to be assessed on Standard District Court scale

CATCHWORDS:

COUNSEL:

R Anderson for the Plaintiff

G Radcliff for the First Defendant

SOLICITORS:

Boulton Cleary & Kern for the Plaintiff

Allan Dick for the First Defendant

1. The plaintiff is and was a public accountant trading with another under the name of James E Kern & Associates.

1. In or about 1993 the first defendant retained the services of the plaintiff to prepare the first defendant’s income tax returns for the financial years 1988 – 1991.

1. On 6 October 1993 the plaintiff received from the Australian Tax Office a cheque in the sum of $38,338.53 drawn in favour of the first defendant, being a tax refund to the first defendant. 

1. The plaintiff banked the cheque into his practice general account.

1. On 12 October 1993 the plaintiff drew a cheque in the practice general account in favour of the first defendant in the sum of $35,500.00 representing the balance of the first cheque less the plaintiff’s professional fees.

1. At the time the plaintiff banked the first cheque into his practice general account, the first defendant was an undischarged bankrupt.

1. By operation of the Bankruptcy Act (1996) (Cth) s.558, the true owner of the first cheque was the third defendant who asserted an entitlement and applied in the Federal Court of Australia for a declaration that the refund was an asset which vested in the trustee.  This has been called “the Spender hearing”.  On 28 October 1996 the plaintiff entered into a Deed of Settlement with the third defendant whereby the plaintiff agreed to pay $28,000.00 being full and final settlement of the third defendant’s claim against the plaintiff.  The plaintiff claims damages and/or contribution and/or indemnity from the first defendant.

1. At the trial it was indicated that the third defendant did not wish to take part in the proceedings and the proceedings as against second defendant were not pursued against her in the context of the trial.

The Pleadings

1. In its final form the plaintiff’s statement of claim reflected the following claim for relief:

1.          Damages for fraud

2.          Damages for negligence

3.          Monies payable by the first defendant for money had and received

4.          Recovery of money paid under a mistake

5.          Contribution and/or indemnity under the Tort Reform Statute and/or the Law Reform Act.

6.          Indemnity and/or contribution at law or in equity

7.          Equitable compensation

8.          Damages and/or compensation for unjust enrichment. 

1. Further or in the alternative the plaintiff claimed he was…