Oliver v Samios Plumbing Pty Ltd - [2016] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

Oliver v Samios Plumbing Pty Ltd [2016] QCA 236

PARTIES:

DANIEL FREDERICK OLIVER TRADING AS TOP PLUMBING
(applicant)
v
SAMIOS PLUMBING PTY LTD
ACN 010 360 899
(respondent)

FILE NO/S:

Appeal No 4318 of 2016
DC No 240 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported: 15 May 2012

DELIVERED EX TEMPORE ON:

15 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2016

JUDGES:

Fraser and Philip McMurdo JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – WHO MAY EXERCISE RIGHT – OTHER PERSONS ENTITLED – where judgment in the Magistrates Court was entered against the applicant for a sum of money – where appeal to the District Court was dismissed in 2012 – where the applicant seeks an extension of time to appeal against the decision of the District Court and removal of bankruptcy orders – where the trustee in bankruptcy does not consent to the applicant’s application to the Court of Appeal – where the respondent argues that the application should be dismissed because the applicant is an undischarged bankrupt and does not have standing to appeal – whether the applicant has standing to appeal against the orders of the District Court

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENT AND ORDERS – EXECUTION AGAINST THE PERSON – OTHER MATTERS – where judgment in the Magistrates Court was entered against the applicant for a sum of money – where appeal to the District Court was dismissed in 2012 – where the applicant seeks an extension of time to appeal against the decision of the District Court and removal of bankruptcy orders – where the applicant submits that the judgment debt against him “trading as” (business name) does not justify proceedings or a bankruptcy order against him personally – where the respondent submits that the applicant is personally liable for the judgment debt – whether judgment entered against the applicant “trading as” (business name) renders the applicant personally liable

Bankruptcy Act 1996 (Cth), s 5, s 27, s 153B
Civil Proceedings Act 2011 (Qld), s 88, s 89
Uniform Civil Procedure Rules 1999 (Qld), r 89, r 90, r 748

Citigroup Pty Limited v Oliver, unreported, Byrne SJA, SC No 11927 of 2013, 7 March 2014, cited
Cummings v Claremont Petroleum NL (1996) 185 CLR 124, [1996] HCA 19, cited
Srbecky v Bess [2001] QDC 42, cited
W Hill & Son v Tannerhill [1944] KB 472, cited

COUNSEL:

The applicant appeared on his own behalf
P G Jeffery for the respondent

SOLICITORS:

The applicant appeared on his own behalf
JHK Legal for the respondent

FRASER JA: On…

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: [2016] QCA 236
Decision Date: 15 September 2016

CaseChat Overview and Summary

In Oliver v Samios Plumbing Pty Ltd, the applicant sought an extension of time to appeal against a judgment entered in the Magistrates Court, as well as the removal of bankruptcy orders. The District Court had dismissed the applicant's appeal in 2012, and the applicant now sought to appeal to the Court of Appeal. The trustee in bankruptcy did not consent to the application, and the respondent argued that the application should be dismissed because the applicant was an undischarged bankrupt and lacked standing to appeal. The central legal issue was whether the applicant had the standing to appeal against the orders of the District Court.

The court held that an undischarged bankrupt does not have the standing to appeal against the orders of a court unless there is consent from the trustee in bankruptcy. The court further held that the judgment entered against the applicant "trading as" (business name) did not render the applicant personally liable for the judgment debt. The court found that the applicant's submission that the judgment debt against him "trading as" (business name) did not justify proceedings or a bankruptcy order against him personally was without merit.

Accordingly, the appeal was dismissed with costs. The court found that the applicant did not have standing to appeal against the orders of the District Court as an undischarged bankrupt without the consent of the trustee in bankruptcy. Additionally, the court held that the judgment entered against the applicant "trading as" (business name) did not render the applicant personally liable for the judgment debt.

Orders

Orders of the court

The appeal is dismissed with costs.

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:	Oliver v Samios Plumbing Pty Ltd [2016] QCA 236
PARTIES:	DANIEL FREDERICK OLIVER TRADING AS TOP PLUMBING (applicant) v SAMIOS PLUMBING PTY LTD ACN 010 360 899 (respondent)
FILE NO/S:	Appeal No 4318 of 2016 DC No 240 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – Unreported: 15 May 2012
DELIVERED EX TEMPORE ON:	15 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2016
JUDGES:	Fraser and Philip McMurdo JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – WHO MAY EXERCISE RIGHT – OTHER PERSONS ENTITLED – where judgment in the Magistrates Court was entered against the applicant for a sum of money – where appeal to the District Court was dismissed in 2012 – where the applicant seeks an extension of time to appeal against the decision of the District Court and removal of bankruptcy orders – where the trustee in bankruptcy does not consent to the applicant’s application to the Court of Appeal – where the respondent argues that the application should be dismissed because the applicant is an undischarged bankrupt and does not have standing to appeal – whether the applicant has standing to appeal against the orders of the District Court PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENT AND ORDERS – EXECUTION AGAINST THE PERSON – OTHER MATTERS – where judgment in the Magistrates Court was entered against the applicant for a sum of money – where appeal to the District Court was dismissed in 2012 – where the applicant seeks an extension of time to appeal against the decision of the District Court and removal of bankruptcy orders – where the applicant submits that the judgment debt against him “trading as” (business name) does not justify proceedings or a bankruptcy order against him personally – where the respondent submits that the applicant is personally liable for the judgment debt – whether judgment entered against the applicant “trading as” (business name) renders the applicant personally liable Bankruptcy Act 1996 (Cth), s 5, s 27, s 153B Civil Proceedings Act 2011 (Qld), s 88, s 89 Uniform Civil Procedure Rules 1999 (Qld), r 89, r 90, r 748 Citigroup Pty Limited v Oliver, unreported, Byrne SJA, SC No 11927 of 2013, 7 March 2014, cited Cummings v Claremont Petroleum NL (1996) 185 CLR 124, [1996] HCA 19, cited Srbecky v Bess [2001] QDC 42, cited W Hill & Son v Tannerhill [1944] KB 472, cited
COUNSEL:	The applicant appeared on his own behalf P G Jeffery for the respondent
SOLICITORS:	The applicant appeared on his own behalf JHK Legal for the respondent