Lipscombe v Miller - [2000] QDC 315

[2000] QDC 315

DISTRICT COURT OF QUEENSLAND

REGISTRY: BRISBANE

APPEAL NO: 3087 of 2000

Appellant:

BARRY LIPSCOMBE

and

Respondent

RAY MILLER

REASONS FOR JUDGEMENT

Delivered the 30th day of October, 2000.

1.          By Notice of Appeal filed on 15th December, 1999 the appellant appeals against the “whole of the decision of the Magistrates Court at Southport dated 2nd December 1999 ...”
2.          In that decision of 2nd December, 1999, the learned Stipendiary Magistrate held that the judgement which had been entered against the appellant should not be set aside.
3.          The relevant history of this matter is:

1.
On or about 4th March, 1998, the respondent and the appellant had discussions. Contrabart Pty Ltd trading as Contrabart Trade Exchange,” and says that it was in this capacity that he negotiated with the respondent.
2.          The respondent alleges that as a result of these discussions on 4th March, 1998, an enforceable agreement was reached between the respondent and the appellant. Pursuant to this agreement, it is alleged, the respondent was to “supply to the [respondent] certain stock which would be paid for by the deposit of $20,000 credit in the Contrabart Trade Exchange.” It is alleged the “trade exchange” was to be made on 4th March, 1998.
3.          On 6th March, 1998 a fire destroyed much, if not all, of the stock said to be the subject of the agreement.
4.          On 19th March, 1998 a plaint and summons issued in the Magistrate’s Court at Southport. The particulars of claim were hand written and recite the matters set out above, and conclude by alleging “The defendant failed to make the trade exchange and has failed to make the outstanding payment in cash.”1
5.          The plaint was served on 24th March, 1998.
6.          An entry of appearance and defence was filed on 8th April, 1998. In it it was specifically denied that the appellant had been party to a bargain with the respondent, and that the appellant traded as “Contrabart Trade Exchange.” There were general denials.
7.          On (apparently) 25th June, 1998 the respondent requested a pre-trial conference.
8.          That request was granted, and on 26th June, 1998 the Deputy Registrar ordered that the conference take place at 2pm on 4th August, 1998.
9.          It is clear that notice of this conference reached the appellant,2 and that it contained warnings of the consequences of failing to attend.
10.        The appellant failed to attend the conference. The deputy registrar adjourned it to come on before the Stipendiary Magistrate, who deleted the reference in the plaint to the defendant as “trading as Contrabart Trade Exchange,” and then
(that is, on 4th August, 1998) gave judgement for the respondent.
11.        On 18th September, 1998 the respondent sought and obtained an order for the oral examination of the appellant. The examination was set down for 20th October, 1998, and then for 19th January, 1999.
12.        On 3rd December, 1998 the appellant made an application to set aside the judgement.
13.        The application to set aside was…

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 Lipscombe v Miller

Details

AGLC: Lipscombe v Miller [2000] QDC 315
Case: [2000] QDC 315
Decision Date: 30/10/2000

CaseChat Overview and Summary

In the District Court of Queensland, Barry Lipscombe appeals against a decision of the Magistrates Court at Southport which dismissed his application to set aside a judgment entered in default of his appearance. The respondent, Ray Miller, had brought an action alleging that Lipscombe had failed to honour an agreement to supply stock in exchange for a credit of $20,000 in the Contrabart Trade Exchange, and had further failed to make a payment in cash. Despite Lipscombe's denials, judgment was entered against him for the sum of $20,000 when he failed to appear for a pre-trial conference. The appeal raises two primary issues: whether the claim was for a liquidated amount and if the application to set aside the judgment was made within a reasonable time. The court held that the claim was indeed for a liquidated amount, as it involved a sum certain. However, the court found that the application to set aside the judgment was not made within a reasonable time. The appellant's significant delay, coupled with the absence of any substantial prejudice to the respondent, led the court to dismiss the appeal and order Lipscombe to pay the respondent's costs of the appeal.

Orders