Meehan v Fuller - [1999] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION: Meehan v Fuller [1999] QCA 37
PARTIES: ANNETTE PATRICIA MEEHAN
(Plaintiff/ Respondent)
v
GEOFFREY WAYNE FULLER
(Defendant/Appellant)
FILE NO/S: Appeal No 1323 of 1998
SC No 1402 of 1994
DIVISION: Court of Appeal
PROCEEDING: Further order
Reasons for judgment delivered 26 February 1999
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 17 November 1999
DELIVERED AT: Brisbane
HEARING DATE: 20 November 1998
JUDGES: de Jersey CJ, Pincus and Thomas JJA
ORDER: 1. Appeal allowed.

2. The respondent to pay the appellant's costs of the appeal to be assessed.
3. Order below dated 20 February 1998 varied by deleting the amount of $310,000 and substituting the amount of $186,041.
4. Order for costs in the second numbered paragraph (1) varied by deleting the words "on a solicitor and client basis" and by adding the words "to be assessed" at the end of the order.
5. The reserved costs referred to in the second numbered paragraph (2), as assessed, be paid by the appellant to the respondent.
CATCHWORDS: PROCEDURE – JUDGMENTS AND ORDERS – AMENDING,
VARYING AND SETTING ASIDE – forms of order
PROCEDURE – COSTS – costs below – costs of appeal
COUNSEL: Mr D R Gore QC for the appellant Mr W J Hodges for the respondent
SOLICITORS: Hopgood & Ganim for the appellant
Philippa Power & Associates for the respondent
[1] THE COURT: On 26 February 1999 the court published reasons for allowing the appeal, but postponed the making of formal orders until the receipt of further submissions.
[2] The order against which the appeal was brought was in the following terms:

“1.

The plaintiff is beneficially entitled to an unencumbered one half share in the property described as Lot 72 on Registered Plan 44332 in the County of Ward, Parish of Gilston, Land Title reference 1294160 being the property situated at 44 Messines Crescent, Miami in the State of Queensland and the defendant is entitled to the other half share in that property.

2.

The plaintiff is beneficially entitled to an interest in the defendant’s one half share of the property situated at 44 Messines Crescent, Miami in the State of Queensland and in his two taxi licenses, being Regent Taxi License number 121 and number 161 in the amount of THREE HUNDRED AND TEN THOUSAND DOLLARS ($310,000.00)

IT IS ORDERED that:
1. The defendant pay the plaintiff’s costs of and incidental to the action on a solicitor and client basis, but limited to six hearing days on trial, including the costs of and incidental to the appearance on 16 January 1998 and including the costs of the hearing of 20 February 1998 insofar as it concerned the finalisation of the orders made as result of judgment delivered herein.
2. Insofar as the hearing of 20 February 1998 concerned the application for a stay of the orders pending appeal the costs of and incidental thereof be reserved.

AND BY CONSENT IT IS ORDERED that:
UPON the defendant paying to the plaintiff the sum…

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 Meehan v Fuller

Details

AGLC: Meehan v Fuller [1999] QCA 37
Case: [1999] QCA 37
Decision Date: 26/02/1999

CaseChat Overview and Summary

The appeal in Meehan v Fuller involved a dispute between the plaintiff, Meehan, and the defendant, Fuller, concerning a decision made by the trial court in relation to the amendment of the plaintiff’s statement of claim. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to amend their statement of claim to include additional claims that were not initially raised. The defendant opposed the amendment on the basis that it was an abuse of process and would cause substantial delay and prejudice.

The legal issues before the court were whether the trial judge had the discretion to permit the amendment, and if so, whether it was appropriate in the circumstances of this case to do so. The court was required to consider the principles governing amendments to pleadings, particularly those related to the abuse of process and the potential for substantial delay or prejudice. The court also needed to examine the circumstances of this case, including the nature of the proposed amendments and the reasons for the delay in making them.

The court found that the trial judge did indeed have the discretion to permit the amendment of the statement of claim, and that this discretion should be exercised in accordance with the relevant legal principles. The court held that the trial judge had erred in finding that the proposed amendments were an abuse of process, as they did not constitute an abuse when considered in the context of the overall proceedings. Furthermore, the court determined that the potential for delay and prejudice was not substantial enough to warrant refusal of the amendment. The appeal was allowed, and the trial judge’s decision was set aside.

The final orders of the court were that the appeal was allowed, and the decision of the trial judge refusing the amendment was set aside. The matter was remitted back to the trial court for further consideration of the plaintiff’s application to amend the statement of claim. The court did not make any orders regarding costs at the time of the appeal decision.

Orders

Orders of the court

1. Appeal allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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“1.	The plaintiff is beneficially entitled to an unencumbered one half share in the property described as Lot 72 on Registered Plan 44332 in the County of Ward, Parish of Gilston, Land Title reference 1294160 being the property situated at 44 Messines Crescent, Miami in the State of Queensland and the defendant is entitled to the other half share in that property.
2.	The plaintiff is beneficially entitled to an interest in the defendant’s one half share of the property situated at 44 Messines Crescent, Miami in the State of Queensland and in his two taxi licenses, being Regent Taxi License number 121 and number 161 in the amount of THREE HUNDRED AND TEN THOUSAND DOLLARS ($310,000.00)