LeMass v DeVere (No 2) - [2010] QSC 140

SUPREME COURT OF QUEENSLAND

CITATION:

LeMass v DeVere & Anor (No 2) [2010] QSC 140

PARTIES:

WILLIAM LeMASS as trustee of THE LeMASS LEGAL TRUST
(plaintiff)
v
MICHAEL ROBERT DeVERE
(first defendant)
and
DeVERE LEGAL PTY LTD trading as DeVERE LAWYERS QLD, BN20381992 (in liquidation)
(second defendant)

FILE NO:

BS 4005 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2010

JUDGE:

Daubney J

ORDERS:

1. Subject to hearing further from the parties on the question of the costs of this and the applications brought by the plaintiff as a consequence of the first defendant’s non-compliance, I propose making an order under UCPR r 7 extending time for compliance by the first defendant with the order of 12 January 2010 to 16 March 2010.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURTS – TIME – OTHER MATTERS - where orders were made that the defendants serve a list of documents by 29 January 2010 – where the plaintiff’s have brought applications for interlocutory judgment and for punishment for contempt on the basis of the first defendant’s alleged failure to comply with the order – where the first defendant has applied for an extension of time to comply with the order – where the application was brought after the time for compliance with the order – where there was evidence of the steps undertaken in an attempt to comply with the order – whether in all the circumstances an extension of time should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 223

Blue Cross Properties (Toorak) Pty Ltd v Mackie & Staff Pty Ltd [2007] VSC 304, cited

COUNSEL:

A Morris QC with V G Brennan for the plaintiff
G Newton SC with M Trim for the first defendant
PA McPherson, solicitor with McCullough Robertson, for the second defendant

SOLICITORS:

Carter Capner Lawyers for the plaintiff
Stockwin deVere Lawyers for the first defendant
McCullough Robertson for the second defendant

On 12 January 2010 I ordered:

“1.That by 29 January 2010, the defendants serve on the plaintiff a list of the documents in the possession or under the control of the defendants which are directly relevant to work in progress, fees billed and fees recovered and all other financial data in respect of each of the client matters current as at 2 July 2007 and referred to in exhibit WLL1 to the affidavit of the plaintiff filed on 9 October 2009.”

I published my reasons for making that order.[1]

[1] [2010] QSC 2

On 4 March 2010, in consequence of a complaint by the plaintiff that the defendants had not complied with my order, this matter was listed for a case management review. At the review, there was an appearance for the second defendant, which by that time had been put into voluntary administration (it has since gone into liquidation). The first defendant was represented by…

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: [2010] QSC 140
Decision Date: 6 May 2010

CaseChat Overview and Summary

LeMass v DeVere (No 2) involves a procedural dispute concerning orders made under the Uniform Civil Procedure Rules in Queensland. The plaintiffs sought interlocutory judgment and punishment for contempt due to the first defendant's alleged failure to comply with a court order to serve a list of documents by 29 January 2010. The first defendant subsequently applied for an extension of time to comply with the order, despite the time for compliance having already passed. The central legal issue was whether, in the circumstances, an extension of time should be granted to the first defendant.

The court considered the nature of the application for an extension of time, the steps taken by the first defendant in attempting to comply with the order, and the consequences of non-compliance. The court noted that while the first defendant had applied for the extension after the deadline, there was evidence that they had taken steps to try to comply with the original order. The court also weighed the potential prejudice to the plaintiffs if the extension was granted against the first defendant’s efforts to comply.

In determining the matter, the court decided that in the specific circumstances of the case, it was appropriate to grant the first defendant an extension of time. The court proposed making an order under UCPR Rule 7 to extend the time for compliance by the first defendant with the order of 12 January 2010 to 16 March 2010. The court also invited further submissions from the parties on the issue of costs resulting from the first defendant’s non-compliance.

Orders

Orders of the court

1. Subject to hearing further from the parties on the question of the costs of this and the applications brought by the plaintiff as a consequence of the first defendant’s non-compliance, I propose making an order under UCPR r 7 extending time for compliance by the first defendant with the order of 12 January 2010 to 16 March 2010.

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:	LeMass v DeVere & Anor (No 2) [2010] QSC 140
PARTIES:	WILLIAM LeMASS as trustee of THE LeMASS LEGAL TRUST (plaintiff) v MICHAEL ROBERT DeVERE (first defendant) and DeVERE LEGAL PTY LTD trading as DeVERE LAWYERS QLD, BN20381992 (in liquidation) (second defendant)
FILE NO:	BS 4005 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	6 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2010
JUDGE:	Daubney J
ORDERS:	1. Subject to hearing further from the parties on the question of the costs of this and the applications brought by the plaintiff as a consequence of the first defendant’s non-compliance, I propose making an order under UCPR r 7 extending time for compliance by the first defendant with the order of 12 January 2010 to 16 March 2010.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURTS – TIME – OTHER MATTERS - where orders were made that the defendants serve a list of documents by 29 January 2010 – where the plaintiff’s have brought applications for interlocutory judgment and for punishment for contempt on the basis of the first defendant’s alleged failure to comply with the order – where the first defendant has applied for an extension of time to comply with the order – where the application was brought after the time for compliance with the order – where there was evidence of the steps undertaken in an attempt to comply with the order – whether in all the circumstances an extension of time should be granted Uniform Civil Procedure Rules 1999 (Qld), r 5, r 223 Blue Cross Properties (Toorak) Pty Ltd v Mackie & Staff Pty Ltd [2007] VSC 304, cited
COUNSEL:	A Morris QC with V G Brennan for the plaintiff G Newton SC with M Trim for the first defendant PA McPherson, solicitor with McCullough Robertson, for the second defendant
SOLICITORS:	Carter Capner Lawyers for the plaintiff Stockwin deVere Lawyers for the first defendant McCullough Robertson for the second defendant