Kern v Evans - [2005] QCA 416

SUPREME COURT OF QUEENSLAND

CITATION: Kern v Evans & Ors [2005] QCA 416
PARTIES: JAMES ERNEST KERN
(plaintiff/respondent)
v
ROSS ALEXANDER EVANS
(first defendant/applicant)
MELANIE JANE EVANS
(second defendant)
PAUL DESMOND SWEENEY
(third defendant)
FILE NO/S: Appeal No 4718 of 2005
DC No 292 of 1999
DIVISION: Court of Appeal
PROCEEDING: Application for leave s 118 DCA (Civil)
ORIGINATING
COURT: District Court at Townsville
DELIVERED ON: 11 November 2005
DELIVERED AT: Brisbane
HEARING DATE: 24 October 2005
JUDGES: McMurdo P, Jerrard JA and Muir J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for leave to appeal refused with costs
CATCHWORDS: TORTS – JOINT OR SEVERAL TORTFEASORS – CONTRIBUTION – GENERALLY – APPORTIONMENT – respondent was applicant’s accountant – applicant asserts respondent was aware applicant was a bankrupt – respondent received cheque from Australian Taxation Office (“ATO”) made out to applicant – respondent drew cheque in favour of applicant retaining balance on account of professional fees – where trustee in bankruptcy commenced proceedings against respondent in Federal Court and obtained declaration that the sum paid by the ATO to the respondent was an asset vested in trustee in bankruptcy – respondent and trustee executed a deed in which respondent agreed to pay sum to trustee in full and final settlement of claim against him – where respondent commenced proceedings against applicant for relief under s 5 and s 6 of the Law Reform Act 1995 (Qld) – where primary judge found respondent and applicant were joint tortfeasors and respondent entitled to claim contribution from applicant – where respondent claims ‘loss should be borne equally’
APPEAL AND NEW TRIAL – APPEAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – primary judge found respondent witness of credit who innocently but negligently converted cheque – where applicant asserts these findings inconsistent with entitlement to claim contribution – where applicant asserts respondent not witness of credit
PROCEDURE – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – COSTS – primary judge awarded costs on District Court scale – applicant asserts costs should have been awarded on the Magistrates Court scale in accordance with r 698 of Uniform Civil Procedure Rules 1999 (Qld) – whether discretion properly exercised by primary judge
Bankruptcy Act 1966 (Cth)
Law Reform Act 1995 (Qld), s 6, s 7
Taxation Administration Act 2001 (Qld), s 8XB
Uniform Civil Procedure Rules 1999 (Qld), r 698
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225,
cited
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996)
72 FCR 151, cited
COUNSEL: G J Radcliff for the applicant
R J Anderson for the respondent
SOLICITORS: Allan Dick Solicitors for the applicant
Boulton Cleary & Kern for the respondent

MCMURDO P: I agree with Muir J’s reasons for refusing the application for leave to appeal with costs.
JERRARD JA: In this appeal I have had the advantage of…

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 Kern v Evans

Details

AGLC: Kern v Evans [2005] QCA 416
Case: [2005] QCA 416
Decision Date: 11/11/2005

CaseChat Overview and Summary

In the case of Kern v Evans, the applicant sought to recover a sum of money from the respondent, who had been their accountant. The applicant claimed that the respondent was aware of their bankruptcy status and, despite this, accepted a cheque from the Australian Taxation Office payable to the applicant. The respondent drew the cheque in favor of the applicant, retaining the balance to cover professional fees. A trustee in bankruptcy subsequently obtained a declaration in the Federal Court that the sum paid by the ATO to the respondent was an asset vested in the trustee. A deed was executed between the respondent and the trustee, whereby the respondent agreed to pay the sum to the trustee in full and final settlement of the claim against him. The respondent then initiated proceedings against the applicant, seeking relief under sections 5 and 6 of the Law Reform Act 1995 (Qld). The primary judge found that the respondent and the applicant were joint tortfeasors, and that the respondent was entitled to claim contribution from the applicant.

The legal issues before the court were whether the respondent was entitled to claim contribution from the applicant, and if so, how the loss should be apportioned between the parties. The court considered the principles of joint and several liability and the statutory provisions relevant to contribution claims. The court had to determine whether the respondent's actions amounted to a tort and whether the applicant's knowledge of their bankruptcy status constituted contributory fault. The court also had to consider the appropriate method for apportioning the loss between the parties, given that the respondent had already settled with the trustee in bankruptcy.

The court found that the respondent's actions did amount to a tort and that the applicant's knowledge of their bankruptcy status did constitute contributory fault. The court held that the respondent was entitled to seek contribution from the applicant under the statutory provisions. However, the court rejected the respondent's claim that the loss should be borne equally between the parties. Instead, the court considered the appropriate method for apportioning the loss, taking into account the respective contributions to the tort and the extent of the fault of each party. The court concluded that the respondent was entitled to a contribution from the applicant, but the exact amount of the contribution would be determined by further proceedings.

The court also addressed the issue of costs, noting that determinations on costs are discretionary and are not lightly interfered with on appeal. The court found that the applicant's case did not exhibit the features justifying departure from the normal order for costs, and therefore, the application for indemnity costs was refused. The court dismissed the appeal and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

Application for leave to appeal refused with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Additionally, determinations on costs are discretionary and are not lightly interfered with on appeal, particularly if, as is the case here, there is no other substantive ground of appeal which is reasonably arguable. Conclusion For the above reasons, I would refuse the application with costs. Counsel for the respondent argues that the “abject weakness” of the applicant’s case means that indemnity costs should be ordered. However, the case mounted by the applicant does not exhibit features of the kind referred to in cases such as Colgate- Palmolive Co v Cussons Pty Ltd[2] and Re Wilcox, Ex parte Venture Industries Pty Ltd (No 2),[3] as justifying departure from the normal order. [2] (1993) 46 FCR 225. [3] (1996) 72 FCR 151.

Ratio Decidendi

Legal Principle Established

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CITATION:	Kern v Evans & Ors [2005] QCA 416
PARTIES:	JAMES ERNEST KERN (plaintiff/respondent) v ROSS ALEXANDER EVANS (first defendant/applicant) MELANIE JANE EVANS (second defendant) PAUL DESMOND SWEENEY (third defendant)
FILE NO/S:	Appeal No 4718 of 2005 DC No 292 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	11 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2005
JUDGES:	McMurdo P, Jerrard JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused with costs
CATCHWORDS:	TORTS – JOINT OR SEVERAL TORTFEASORS – CONTRIBUTION – GENERALLY – APPORTIONMENT – respondent was applicant’s accountant – applicant asserts respondent was aware applicant was a bankrupt – respondent received cheque from Australian Taxation Office (“ATO”) made out to applicant – respondent drew cheque in favour of applicant retaining balance on account of professional fees – where trustee in bankruptcy commenced proceedings against respondent in Federal Court and obtained declaration that the sum paid by the ATO to the respondent was an asset vested in trustee in bankruptcy – respondent and trustee executed a deed in which respondent agreed to pay sum to trustee in full and final settlement of claim against him – where respondent commenced proceedings against applicant for relief under s 5 and s 6 of the Law Reform Act 1995 (Qld) – where primary judge found respondent and applicant were joint tortfeasors and respondent entitled to claim contribution from applicant – where respondent claims ‘loss should be borne equally’
APPEAL AND NEW TRIAL – APPEAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – primary judge found respondent witness of credit who innocently but negligently converted cheque – where applicant asserts these findings inconsistent with entitlement to claim contribution – where applicant asserts respondent not witness of credit
PROCEDURE – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – COSTS – primary judge awarded costs on District Court scale – applicant asserts costs should have been awarded on the Magistrates Court scale in accordance with r 698 of Uniform Civil Procedure Rules 1999 (Qld) – whether discretion properly exercised by primary judge
Bankruptcy Act 1966 (Cth) Law Reform Act 1995 (Qld), s 6, s 7 Taxation Administration Act 2001 (Qld), s 8XB Uniform Civil Procedure Rules 1999 (Qld), r 698
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151, cited
COUNSEL:	G J Radcliff for the applicant R J Anderson for the respondent
SOLICITORS:	Allan Dick Solicitors for the applicant Boulton Cleary & Kern for the respondent