Quarmby v Oakley - [2015] TASFC 11

[2015] TASFC 11

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Quarmby v Oakley [2015] TASFC 11

PARTIES:  QUARMBY, Alan
  v
  OAKLEY, Barrie Graeme
  HARPER, Noel Geoffrey

FILE NO:  329/2014
DELIVERED ON:  9 September 2015
HEARING DATE:  24 August 2015
JUDGMENT OF:  Porter, Estcourt and Pearce JJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Pleadings – Application to strike out statement of claim and dismiss action – Claim for damages for unnecessary and vexatious lodgement of caveats where caveats lodged in support of a judgment – Claim for reimbursement of overpayment of interest on costs – Action correctly dismissed as having no prospects of success.

Aust Dig Procedure [272]

Procedure – Judgments and orders – Interest on judgments – Interest on costs – Time from which interest runs – Act providing that interest to run from date of trial – Interest payable on whole amount stated in certificate of taxation from that date – Not arguable that payable from when amount ascertained on taxation.

Supreme Court Civil Procedure Act1932 (Tas), s 165.
Minister Administering the Environmental Planning & Assessment Act 1979 v Carson (1994) 35 NSWLR 342, applied.
Aust Dig Procedure [498]

Real Property – Torrens title – Caveats against dealings – Compensation for lodging caveat without reasonable cause – Claim for damages for unnecessary and vexatious lodgement brought in an action – Such action akin to an action for malicious prosecution – No basis where caveat lodged in support of judgment – Statutory claim for compensation should be brought by originating application.

Aust Dig Real Property [1317]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  D J Gunson SC
Solicitors:
             Appellant:  In person
             Respondent:  Gunson Williams

Judgment Number: [2015] TASFC 11
Number of paragraphs: 32

Serial No 11/2015
File No 329/2014

ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER

REASONS FOR JUDGMENT FULL COURT

PORTER J
ESTCOURT J
PEARCE J
9 September 2015

Order of the Court

Appeal dismissed.

Serial No 11/2015
File No 329/2014

ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER

REASONS FOR JUDGMENT FULL COURT

PORTER J
9 September 2015

I agree with the reasons for judgment of Estcourt J, and would also dismiss the appeal. As to both issues which the appellant seeks to pursue, there is no established or arguable view of the law which supports the claims as pleaded, or as may be pleaded. I want to add some comments about ground 6, and about another part of the appellant's argument as to the lodgement of caveats issue.
As to ground 6, I will repeat it for the sake of convenience:
"That the learned Judge erred in law in determining that Rule 95 of the Court Rules applied only to a whole proceeding and not to a specific separate issue therein."
Leaving aside the meaning of r 95 for a moment, the appellant faces a procedural difficulty with ground 6. The ground relates…

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 Quarmby v Oakley

Details

AGLC: Quarmby v Oakley [2015] TASFC 11
Case: [2015] TASFC 11
Decision Date: 9 September 2015

CaseChat Overview and Summary

The Supreme Court of Tasmania, Court of Appeal, heard an appeal concerning an application to strike out a statement of claim and dismiss an action. The appellant, Quarmby, sought damages for the alleged unnecessary and vexatious lodgement of caveats, which were lodged in support of a judgment. Quarmby also sought reimbursement for an alleged overpayment of interest on costs. The respondent was Oakley.

The central legal issues before the Court of Appeal were whether Quarmby's claim for damages for the lodgement of caveats had any reasonable prospect of success, and whether the claim for reimbursement of interest overpayment was legally sustainable. The Court was required to determine if the action, as pleaded, disclosed a cause of action or was otherwise an abuse of process.

The Court of Appeal affirmed the primary judge's decision to dismiss the action. Their Honours reasoned that the lodgement of caveats in support of a judgment, even if ultimately unsuccessful, did not give rise to a cause of action for damages unless there was evidence of malice or improper purpose beyond the mere fact of lodging the caveat. The Court found that the pleadings did not disclose any such improper purpose. Furthermore, the claim for reimbursement of interest overpayment was also found to be without merit, as the interest had been calculated and ordered by the court. Consequently, the Court concluded that the action had no reasonable prospect of success and was therefore correctly dismissed.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

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.