Puryer v Favretto - [2020] QDC 274

DISTRICT COURT OF QUEENSLAND

CITATION:

Puryer v Favretto [2020] QDC 274

PARTIES:

TERENCE ROBERT PURYER

(Plaintiff/Respondent)

v

JANETTE NORBERTA FAVRETTO

(Defendant/Applicant)

FILE NO:

2766/08

DIVISION:

Civil

PROCEEDING:

Application filed 23 July 2020

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 September 2020 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2020

JUDGE:

Porter QC DCJ

ORDER:

The proceedings be dismissed.

Plaintiff pay the Defendant’s costs of this application and proceedings on the standard basis.

CATCHWORDS:

PROCEDURE – UNIFORM CIVIL PROCEDURES RULES – APPLICATION TO DISMISS FOR WANT OF PROSECUTION – where the defendant engaged the plaintiff to carry out legal work in respect of a personal injuries claim – where the legal work the subject of the dispute occurred between 1994 to 2002 – where those proceedings were abandoned before trial upon the obtaining of a barrister’s advice that the prospects of success were not good – where the first memorandum of fees was produced 9 years after the first instructions in 2003 – where the defendant was billed in the sum of $58,083.71 – where the defendant alleges the memorandum of fees is excessive – where the plaintiff did not commence proceedings to recover his costs until 2008 – where default judgment was obtained against the defendant in 2008 – where the plaintiff did not serve an enforcement warrant on the plaintiff until 2013 – where the default judgment was not set aside until 18 months later in 2014 – where there have been subsequent delays in filing amended pleadings and bringing this matter to a head – whether this proceeding should be dismissed for want of prosecution – whether and to what extent the delay is attributable to either party – whether the claims are in any event statute barred

LEGISLATION:

District Court Act 1967 (Qld) s. 69

Uniform Civil Procedure Rules 1999 (Qld) rr. 5(4); 376(4); 389(2)

CASES:

Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175

Cassimatis v Commonwealth Bank of Australia [2016] QSC 281

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Market Pty Ltd (2013) 250 CLR 303

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125

Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Ure v Robertson [2016] QSC 210

COUNSEL:

Plaintiff self-represented

P Somers for the Defendant

SOLICITORS:

Plaintiff self-represented

Bennett & Philp Lawyers for the Defendant

Summary

This is an application by the defendant, Janette Favretto, seeking the following relief:
(a)The dismissal of the proceedings by Mr Puryer for want of prosecution;
(b)Alternatively, striking out the amended statement of claim and judgment on the claim; or
(c)Alternatively, striking out certain paragraphs of the statement of claim and the placing of what is left of the case on the commercial list to proceed to trial expeditiously.
I think it is fair to say that the second order was not really pressed in the sense…

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 Puryer v Favretto

Details

AGLC: Puryer v Favretto [2020] QDC 274
Case: [2020] QDC 274
Decision Date: 24 September 2020 (ex tempore)

CaseChat Overview and Summary

Puryer v Favretto is a case that involves a dispute over unpaid legal fees. The plaintiff, Puryer, engaged the defendant, Favretto, to carry out legal work in relation to a personal injuries claim between 1994 and 2002. The proceedings were abandoned before trial, but a memorandum of fees was produced nine years after the instructions were given, in 2003, billing Favretto $58,083.71. Favretto alleges the memorandum of fees is excessive. The plaintiff did not commence proceedings to recover the costs until 2008 and obtained a default judgment against Favretto that year. The plaintiff did not serve an enforcement warrant until 2013, and the default judgment was not set aside until 18 months later, in 2014. There have been subsequent delays in filing amended pleadings and bringing the matter to a head.

The court was required to decide whether the proceeding should be dismissed for want of prosecution and, if so, whether the delay is attributable to either party. The court also needed to consider whether the claims are in any event statute-barred. The court found that the plaintiff's delay in commencing proceedings and enforcing the default judgment contributed significantly to the overall delay, and the plaintiff had not shown any satisfactory explanation for these delays. The court held that the proceeding should be dismissed for want of prosecution.

In its reasoning, the court noted that the plaintiff had not taken any steps to enforce the default judgment for five years, which was a significant delay. The court held that the plaintiff's delay was unreasonable and that the defendant had not contributed to the delay to any significant degree. The court held that the proceeding should be dismissed for want of prosecution, and the plaintiff was ordered to pay the defendant's costs of the application and proceedings on the standard basis. The court found that the claims were not statute-barred as the cause of action accrued when the plaintiff's costs became payable, which was after the expiration of the limitation period. However, this finding was not necessary to the outcome of the case.

Orders

Orders of the court

1. The proceedings be dismissed.

2. Plaintiff pay the Defendant’s costs of this application and proceedings on the standard basis.

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:	Puryer v Favretto [2020] QDC 274
PARTIES:	TERENCE ROBERT PURYER (Plaintiff/Respondent) v JANETTE NORBERTA FAVRETTO (Defendant/Applicant)
FILE NO:	2766/08
DIVISION:	Civil
PROCEEDING:	Application filed 23 July 2020
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 September 2020 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2020
JUDGE:	Porter QC DCJ
ORDER:	The proceedings be dismissed. Plaintiff pay the Defendant’s costs of this application and proceedings on the standard basis.
CATCHWORDS:	PROCEDURE – UNIFORM CIVIL PROCEDURES RULES – APPLICATION TO DISMISS FOR WANT OF PROSECUTION – where the defendant engaged the plaintiff to carry out legal work in respect of a personal injuries claim – where the legal work the subject of the dispute occurred between 1994 to 2002 – where those proceedings were abandoned before trial upon the obtaining of a barrister’s advice that the prospects of success were not good – where the first memorandum of fees was produced 9 years after the first instructions in 2003 – where the defendant was billed in the sum of $58,083.71 – where the defendant alleges the memorandum of fees is excessive – where the plaintiff did not commence proceedings to recover his costs until 2008 – where default judgment was obtained against the defendant in 2008 – where the plaintiff did not serve an enforcement warrant on the plaintiff until 2013 – where the default judgment was not set aside until 18 months later in 2014 – where there have been subsequent delays in filing amended pleadings and bringing this matter to a head – whether this proceeding should be dismissed for want of prosecution – whether and to what extent the delay is attributable to either party – whether the claims are in any event statute barred
LEGISLATION:	District Court Act 1967 (Qld) s. 69 Uniform Civil Procedure Rules 1999 (Qld) rr. 5(4); 376(4); 389(2)
CASES:	Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 Cassimatis v Commonwealth Bank of Australia [2016] QSC 281 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Market Pty Ltd (2013) 250 CLR 303 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Ure v Robertson [2016] QSC 210
COUNSEL:	Plaintiff self-represented P Somers for the Defendant
SOLICITORS:	Plaintiff self-represented Bennett & Philp Lawyers for the Defendant