Murdoch v Alex Mackay and Co - [2017] QDC 81

DISTRICT COURT OF QUEENSLAND

CITATION:

Murdoch v Alex Mackay & Co [2017] QDC 81

PARTIES:

PETER MURDOCH

First Appellant

AND

NOELA MURDOCH

Second Appellant

v

JOSEPH ALEXANDER MACKAY AND PETER PREVITERA trading as ALEX MACKAY & CO (a firm)

First Respondent

AND

ABERCLARE PTY LTD

Second Respondent

FILE NO/S:

3831/16

DIVISION:

Civil

PROCEEDING:

Application for Leave to Appeal

DELIVERED ON:

10 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2017

JUDGE:

Bowskill QC DCJ

ORDER:

Application for leave to appeal is dismissed.

The parties have 7 days in which to make submissions in relation to [56] of the Reasons. If no such submissions are received, the order as to costs will be that the appellants pay the first respondents’ costs of the appellants’ application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd).

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where judgment entered in the Magistrates Court against the appellants, in a claim by the first respondent solicitors to recover professional fees, for the amount certified by a costs assessor – where appeal sought to be brought on the basis the Magistrate erred in entering judgment for the amount so certified, rather than the amount of the claim; that the Magistrate erred in finding there was a valid and binding costs agreement, in the face of an argument the costs agreement was void for uncertainty; and on the basis of a failure to give adequate reasons – whether some important principle of law or justice is involved

Legal Profession Act 2007, ss 326, 328, 337, 341, 342

Magistrates Court Act 1921, s 45

Uniform Civil Procedure Rules 1999, rr 737, 742, 743B, 743G, 743H, 743I

American Express International Inc v Hewitt [1993] 2 Qd R 352

Ironside v Thisainayagan [2016] WASC 174

La Spina v Macdonnells Law [2014] QCA 44

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631

Ramzy v Body Corporate for GC3 CTS 38396 [2012] QDC 397

Turner v Macrossan & Amiet Pty Ltd [2016] QCAT 5

Twigg & Twigg v Kung (1994) 17 Fam LR 391

University of Wollongong v Metwally (No 2) (1985) 60 ALR 68

Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

COUNSEL:

S Whitten for the Appellants

T Quinn for the First Respondents

SOLICITORS:

Robinson Locke Litigation Lawyers for the Appellants

Alex Mackay & Co for the First Respondents

No appearance for the Second Respondent

In May 2015 a firm of solicitors, Alex Mackay & Co, brought proceedings in the Magistrates Court against their clients, Aberclare Pty Ltd and its directors Peter and Noela Murdoch, to recover outstanding professional fees and outlays of $11,805.78 under a costs agreement sent to the clients on 13 August 2014.[1]
[1] See exhibit GEM-1 to the affidavit of Gabrielle Mumford,…

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: [2017] QDC 81
Decision Date: 10 April 2017

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal a judgment of the Magistrates Court of Victoria, which had been entered in favour of Alex Mackay and Co, a firm of solicitors, in a claim to recover professional fees against the appellants, Murdoch. The first respondent, Alex Mackay and Co, had sought to recover professional fees, and the amount certified by a costs assessor was used to determine the judgment. The appellants sought leave to appeal on several grounds, including the argument that the Magistrate erred in entering judgment for the certified amount rather than the amount of the claim, that the Magistrate erred in finding there was a valid and binding costs agreement in the face of an argument that the costs agreement was void for uncertainty, and on the basis of a failure to give adequate reasons.

The court considered the grounds for leave to appeal and whether any important principle of law or justice was involved. The court found that the grounds for appeal did not raise any important principle of law or justice and were unlikely to succeed. The court noted that the Magistrate had provided reasons for the judgment and had considered the arguments put forward by the appellants. The court also noted that the certified amount was a fair and reasonable amount, and that there was no evidence to suggest that the costs agreement was void for uncertainty. The court found that the appeal was not likely to succeed and dismissed the application for leave to appeal.

The court ordered that the parties have seven days to make submissions in relation to [56] of the Reasons. If no such submissions are received, the order as to costs will be that the appellants pay the first respondents’ costs of the appellants’ application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd). The court did not make any orders in relation to the substantive matter before the Magistrates Court.

Orders

Orders of the court

Application for leave to appeal is dismissed.

The parties have 7 days in which to make submissions in relation to [56] of the Reasons. If no such submissions are received, the order as to costs will be that the appellants pay the first respondents’ costs of the appellants’ application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd).

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:	Murdoch v Alex Mackay & Co [2017] QDC 81
PARTIES:	PETER MURDOCH First Appellant AND NOELA MURDOCH Second Appellant v JOSEPH ALEXANDER MACKAY AND PETER PREVITERA trading as ALEX MACKAY & CO (a firm) First Respondent AND ABERCLARE PTY LTD Second Respondent
FILE NO/S:	3831/16
DIVISION:	Civil
PROCEEDING:	Application for Leave to Appeal
DELIVERED ON:	10 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2017
JUDGE:	Bowskill QC DCJ
ORDER:	Application for leave to appeal is dismissed. The parties have 7 days in which to make submissions in relation to [56] of the Reasons. If no such submissions are received, the order as to costs will be that the appellants pay the first respondents’ costs of the appellants’ application for leave to appeal (but not any costs of the first respondents incurred in this proceeding in relation to applications made or steps taken by the second respondent, Aberclare Pty Ltd).