Phillippa Power & Associates v Primrose Couper Cronin Rudkin & Moran

[1996] QCA 145

COURT OF APPEAL	[1996] QCA 145
PINCUS JA DAVIES JA McPHERSON JA
Appeal No 145 of 1996

PHILIPPA POWER & ASSOCIATES Applicant

(Garnishee)

and

PRIMROSE COUPER CRONIN RUDKIN Respondent

(Judgment Creditor)

and

LORRAINE MAY MORAN (Judgment Debtor/Defendant)

BRISBANE
..DATE 05/02/96
050296 T3/SJ/22 M/T COA96/4
PINCUS JA: In this matter, there was an appellate judgment
of the District Court delivered on 15 December 1995 dealing
with two garnishee summonses which had been heard in the
Magistrates Court. In respect of one of them the amount
involved exceeds $10,000 and therefore prima facie there is
a right of appeal against the District Court judgment, under
section 92 of the District Courts Act. However, Mr Baston
who led for the respondent contended that, for reasons which
he explained, section 92 has no application to that case.
In respect of the other garnishee summons dealt with in the
District Court on appeal from the Magistrates Court, the
amount involved is less than $10,000 and therefore if there
is to be an appeal leave must first be granted.

The question whether either case involved an important question of law or justice was briefly discussed by counsel.

One point which was identified by Mr Keane QC, who led for the applicant/appellant, is whether or not a solicitor has a general lien for costs in respect of matters held in the solicitor's trust account. The point appears to me to be one of sufficient importance to fall within section 92(2A) of the District Courts Act and indeed the contrary was not contended.

It therefore seems to me clear that leave should be granted
in respect of the lesser judgment. As to the larger
judgment,
Mr Baston's question about the existence of a right of
appeal need not, as it seems to me, be resolved in this
matter, although ultimately it may have to be; because in
any event the legal question which I have mentioned arises
050296 T3/SJ/22 M/T COA96/4
in that case as well as in the smaller case.

The order which was made in the District Court dealing with both of the garnishee orders should, in my view, therefore be the subject of a grant of leave to appeal under section 92 subsection (2) of the District Courts Act. Such leave will be granted so far as necessary in the case involving an amount in excess of $10,000 and will be simply granted in respect of the other case.

I would also order that the costs of the application to this

Court for leave to appeal be costs in the appeal.

DAVIES JA: I agree.

McPHERSON JA: I agree.

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