Ong v Dubois

[2003] QCA 545

COURT OF APPEAL

McMURDO P

Appeal No 8429 of 2003
PHILLIP JAMES DUBOIS Respondent/Plaintiff
and
CHEE-TEONG ONG Appellant/First Defendant
and
BEE LEE CHEW (Not party to appeal/

Second defendant)

BRISBANE

..DATE 05/12/2003

ORDER instance, Dr Dubois, sought summary judgment against Dr Ong and Dr Chew who had given guarantees on behalf of a company which leased property from Dr Dubois. The learned primary Judge found that there was a triable issue as to a defence raised by Dr Chew but that he was not satisfied that Dr Ong had an arguable defence to the claim against him. He made orders consistent with those findings. On 23 September 2003, the last day of the appeal period, Dr Ong filed a notice of appeal contending that the learned primary Judge erred in failing to find that there was an arguable defence to the applicant's claim, no need for a trial of the proceedings and not giving him unconditional leave to defend. Dr Chew was not a party to that appeal and no appeal was made from those orders concerning Dr Chew.

05122003 T5 YRL/21 M/T COA274/2003

On 1 October 2003, Dr Dubois filed a notice of cross-appeal describing Dr Chew, who was not a party to the appeal, as "the Second Defendant (Party Affected)" and contending that the learned primary Judge erred in finding that there was a triable issue as to Dr Chew's liability under the guarantee.

By the time of filing the purported cross-appeal the period
had expired for Dr Dubois to appeal from the order made as to
his application for summary judgment against Dr Chew and he
needed an extension of time to pursue that appeal. UCPR
r 748 requires that an appeal be filed within 20 days after
the date of a decision appealed from, whereas a notice of
cross-appeal may be made within 14 days after the day of
05122003 T5 YRL/21 M/T COA274/2003
service of the notice of appeal on the respondent. No doubt
this is why Dr Dubois decided to bring a cross-appeal rather
than an appeal, which would have required an extension of time
by that stage. 2 ORDER

On 31 October 2003, the applicant's solicitors sent a facsimile letter to Dr Dubois' solicitors pointing out that Dr Chew was not a party to the appeal filed and no cross-appeal in respect of that appeal could be brought against Dr Chew under the UCPR. By facsimile letter of 4 November 2003, Dr Dubois' solicitors indicated their disagreement with that contention, stating that Dr Dubois was entitled to cross- appeal. The applicant, Dr Ong, then brought this application to strike out the cross-appeal as incompetent.

The notice of appeal contended only that the judgment against Dr Ong for $17,596.16, together with interest of $2,256.17 and costs, be set aside but did not contend that the orders made in respect of Dr Chew be set aside. It specifically noted that she was not a party to the appeal.

Mr Bland, who appears…